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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "state government (includes territories & commonwealths)", specifically "legislative". Your task is to determine which specific state government agency best describes this litigant.
DE CASTRO v. BOARD OF COM’RS OF SAN JUAN.
No. 3796.
Circuit Court of Appeals, First Circuit.
June 14, 1943.
Hugh R. Francis and Gabriel de la Piaba, both of San Juan, Puerto Rico, for appellant.
F. Fernandez Cuyar and H. Gonzales Blanes, both of San Juan, Puerto Rico, for appellee.
Before MAGRUDER, MAHONEY, and WOODBURY, Circuit Judges.
MAGRUDER, Circuit Judge.
On January 4, 1937, the Board of Commissioners of San Juan (the newly elected members of which took office on that day) appointed Carlos M. de Castro, appellant herein, as city manager of the Capital of Puerto Rico. Pursuant to § 22 of Act No. 99, Laws of Puerto Rico (1931) pp. 638-640, the said Board of Commissioners, after hearing upon charges, removed de Castro from office on April 5, 1939. The District Court of San Juan upheld the Board. On appeal the Supreme Court of Puerto Rico reversed the judgment of the district court and directed appellant’s reinstatement. The Supreme Court’s judgment which was rendered June 28, 1940, read as follows: “For the reasons set forth in the foregoing opinion, the judgment appealed from, which was rendered by the District Court of San Juan on August 21, 1939, is hereby reversed, and in its stead a new one rendered, annulling Ordinances No. 370, of January 5, 1939, and No. 373, of April 5, 1939, which decreed the suspension .and removal of the city manager, and in consequence thereof, ordering the reinstatement of the petitioner Carlos M. de Castro in his office of city manager, said reinstatement to date hack from January 5, 1939, when the petitioner was suspended from office and pay.” An appeal was duly allowed, and on July 30, 1940, the court below approved a supersedeas bond. This court affirmed the judgment of the Supreme Court of Puerto Rico on January 10, 1941. Board of Commissioners of San Juan v. De Castro, 1 Cir., 116 F.2d 806. Certiorari was denied on October 13. 1941, 314 U.S. 614, 62 S.Ct. 61, 86 L.Ed. 495.
Shortly after our mandate went down to the Supreme Court of Puerto Rico the Board, on October 27, 1941, filed in that court a motion to stay the execution of its judgment of June 28, 1940 (which we had affirmed) insofar as it ordered the reinstatement of appellant, on the ground that meanwhile appellant’s term of office as city manager had expired.
Appellant filed an opposition to this motion, and after a hearing thereon, the Supreme Court of Puerto Rico on January 14, 1942, entered its judgment, from which the present appeal is taken reading as follows: “For the reasons set forth in the foregoing opinion, the motion filed by the Board of Commissioners of San Juan on October 27, 1941, is granted, and in consequence thereof the execution of the judgment of this court of June 28, 1940, is stayed insofar as it decrees the reinstatement of petitioner Dr. Carlos M. de Castro in the office of city manager of the capital because the term for which he was appointed expired in February, 1941.”
If the court below was correct in its conclusion that appellant’s term of office expired at some time subsequent to its judgment of June 28, 1940, ordering appellant’s reinstatement, we think it is manifest that that court had jurisdiction to stay the execution of its judgment insofar as it decreed reinstatement, despite the fact that the said judgment had been affirmed by this court. See Puerto Rican Code of Civil Procedure, § 7, subdivision 8. Appellant urges that the issue as to his tenure of office had become res judicata in his favor, because in his brief before the Supreme Court of Puerto Rico at the earlier hearing he had advanced the contention that the city manager holds office during good behavior. But that court in its opinion of June 28, 1940, did not go into the question of the tenure of the office at all, and did not need to, because at that time appellant’s four-year term, which the Board claims was the extent of his tenure, had not expired. Certainly, when we affirmed on the previous appeal we had no idea that we were passing on the tenure of the office. We affirmed a judgment holding that appellant had been improperly removed and ordering his reinstatement. How long appellant should retain his office after reinstatement was quite another question. When the Supreme Court of Puerto Rico, upon remand from us, regained jurisdiction over its judgment of June 28, 1940, a new situation was then presented. It was then inappropriate, if appellant’s term of office had meanwhile expired, for the Supreme Court of Puerto Rico to carry into execution its decree of reinstatement.
This brings us to the merits, the question whether under the applicable statute the city manager holds office for a life tenure (during good behavior), or as contended by the Board, for a definite term of four years coincident with the four-year terms of the members of the Board which appointed him.
Act No. 99 of the insular legislature approved May 15, 1931, established a special government for the body politic to be known as the “Capital of Puerto Rico”. Relevant portions of this Act, Laws P. R. (1931) p. 626, and of amendatory Act No. 10, Laws P. R. (1937) p. 131, are copied in the footnote.
The legislative powers are conferred upon a governmental body known as the “Board of Commissioners of San Juan”, As originally constituted by § 9 of the Act, this was a continuing body, composed of five commissioners, appointed by the Governor and confirmed by the Senate, with staggered terms, the term of one commissioner expiring each year. Section 50 of the Act, however, provided that at the general elections in 1936 and every four years thereafter the commissioners should be elected by popular vote, the commissioners previously appointed by the Governor under § 9 to hold office until the first Monday in January, 1937. Act No. 10, approved March 24, 1937, increased the membership of the Board by providing that the Governor should forthwith appoint, with the advice and counsel of the Senate, four additional commissioners to serve with the five commissioners who had been elected in 1936. For the future it was provided that the nine members of the Board should take office on the second Monday in February following each general election, which seems to imply that the four appointed commissioners are to hold office for four years, as in the case of those elected by popular vote.
Section 10 creates the offices of city manager, treasurer, director of public works, director of health and charities, school director, auditor and secretary of the Capital.
Section 21 provides that the city manager shall be the chief executive of the Capital; “he shall be appointed by the Board of Commissioners created by this Act and shall hold office during good conduct.” [Italics ours.] Procedure for removal of the city manager by the Board “for just cause” after hearing is set forth in § 22.
Section 26 provides that the city manager shall appoint the various departmental heads previously mentioned, except the auditor. No specific provision is made as to the tenure of these officers so appointed by the city manager, but § 27 provides that they may be removed by the city manager, for just cause after hearing, the removal provisions being the same as those empowering the Board to remove the city manager.
Section 36 provides that the auditor shall be appointed by the Board of Commissioners. No specific provision is made as to the auditor’s term of office; but he also may be removed by the Board for just cause after hearing.
It is to be observed that the legislature has dealt in various ways with the tenure of officers and employees of the city government. The commissioners have fixed terms of years. Of the two officers to be appointed by the Board, the city manager “shall hold office during good conduct”; the auditor’s tenure is not stated. Nor is any tenure stated for the other offices to which the city manager has the appointing power. “Employees” are appointed for the term of the appointing officer.
Act No. 99 supersedes, so far as concerns the capital city, the Municipal Law of April 28, 1928, Laws, P.R.(1928) No. 53, p. 334, under whch the chief executive was a mayor, elected for a fixed term, though subject to impeachment by the municipal assembly. Appellant contends that the legislature, in providing that the city manager should hold office “during good conduct,” evidenced a clear and unambiguous purpose to introduce experimentally in the city of San Juan a new type of city government, under which the chief executive or city manager would hold office during good behavior “without being tied to the whims and uncertainties of partisan politics.”
The court below, however, reached the conclusion that “the tenure of office of the city manager of the capital is that of four years, provided that during the same he observe good behavior.”
It is difficult for us to see how § 21 could mean anything different in 1937, and thereafter, from what it meant in 1931, when the new form of government was instituted. There is no basis for saying that the first city manager, appointed in 1931, held a four year term, for at that time the tenure of office of the commissioners themselves was not four years, and their terms were staggered so that only one of the five commissioners went out of office each year.
But passing that difficulty, suppose it had been provided from the outset that the whole body of commissioners should be elected by popular vote every four years, as § 50 provided for 1936 and thereafter. It might then be implied that the auditor, whose tenure is not specifically stated, holds office during a four year term, coinciding with that of the commissioners. The only other alternative would be (1) that the auditor holds office at the pleasure of the Board, which would seem to be contrary to the implication of the further provision that the auditor is removable by the Board for just cause, after notice and hearing, or (2) that the auditor holds office for life, subject to removal for cause. But a life tenure for public officers is the exceptional thing and will not be read into the statute by implication. Shurtleff v. United States, 1903, 189 U.S. 311, 316, 23 S.Ct. 535, 47 L.Ed. 828. Notwithstanding the provision that the city manager shall hold office “during good conduct,” the court below has read the statute as meaning that the city manager has the same limited tenure as that of the auditor, as to whose tenure the legislature is silent. Under this interpretation the phrase “during good conduct” in § 21 seems to be rendered meaningless and of no significance.
The tenure of federal judges under Article III, § 1 of the Constitution is described as “during good Behavior,” which means for life, provided they behave themselves. Cf. Matter of Hennen, 1839, 13 Pet. 230, 258, 10 L.Ed. 138. Nobody ever supposed' that “during good behavior” meant that the judge would hold office during the term of the president who appointed him, provided that he observed good behavior during that time. In Smith v. Bryan, 1902, 100 Va. 199, 203, 40 S.E. 652, 653, cited by the court below in another connection, it is stated: “An official tenure ‘during good behavior’ is for life, unless sooner determined for cause. And removal for cause implies a right to be heard, and a trial in one form of procedure or another.” The steps in the reasoning of the court below are as follows:
(1) Life tenure for public officers is the exception; hence should not be read into the statute by implication but only if the intention of the legislature to that effect appears to be so evident as to permit of no doubt. This is an accepted canon of construction, for which the court properly cites Shurtleff v. United States, 1903, 189 U.S. 311, 23 S.Ct. 535, 47 L.Ed. 828. That case involved the tenure of the office of general appraiser of merchandise. It was provided in the act creating the office that the appraisers should be appointed by the President with the advice and consent of the Senate and might be removed from office at any time by the President for inefficiency, neglect of duty or malfeasance in office. Beyond that the statute was silent as to the tenure of the office. The court held that Congress had not clearly enough indicated an intention to make the tenure one for life subject only to removal for cause; and therefore that the act should be construed as leaving unrestricted the President’s implied power of removal without cause. But the significant thing is that the act there involved did not provide that appraisers should hold office “during good behavior”. The court pointed out (page 316 of 189 U.S., page 536 of 23 S.Ct, 47 L.Ed. 828) that “The tenure of the judicial officers of the United States is provided for by the Constitution; but, with that exception, no civil officer has ever held office by a life tenure since the foundation of the government”. How is the life tenure of judicial officers provided for in the Constitution except by the phrase that they shall hold office “during good Behavior”? The rule of interpretation laid down in the Shurtleff case, where the act in question did not use the phrase “during good Behavior”, should not be used to create an ambiguity in § 21 of the act now before us, where the legislature describes the tenure simply as “during good conduct”.
(2) The court points to the “anomaly” which would result if the city manager were held to have a life tenure, from the fact that the treasurer, the director of public works, etc., might under § 26 be appointed “for a limited term to be fixed by the city manager,” while an employee attached to the office of the city manager, “for example, the messenger of his office, by the mere fact of being appointed by the city manager would hold his employment for life unless removed for just cause.” Along the same line, the court states that an uncalled for discrimination would be created between the employees appointed by the other officers and the employees appointed by the city manager, “as the former would hold their employments during the tenure of the appointing officer while the term of office of the employees appointed by the city manager would be for life.” But these “anomalies,” if such they be, are relevant only if it is assumed that there is doubt or ambiguity as to the meaning of § 21.
(3) The court invokes the rule of construction that where the legal provision describing a term is uncertain or doubtful, an interpretation will be adopted which limits the term to the shortest time — in this 'case, “that of four years, which is the one of the majority, at least, of the Board of Commissioners which appointed” the city manager. This, again, assumes some ambiguity in § 21.
(4) The court refers to the rule that in cases of doubt “the practical construction given to a statute by public officials and acted upon by the people” will be regarded as decisive. In this connection the court took judicial notice of the facts that at the general elections held in 1936 and 1940 the various political parties had indicated to the electorate in advance their respective choices for city manager, and that when the newly elected commissioners took office the board proceeded to appoint as city manager the candidate of the successful political party. Appellant objects that the court below ought not to have taken judicial' notice of these facts; that he had no opportunity to put in evidence other facts or explanations which would rob the judicially noticed facts of their significance, and thereby he was denied due process of law. But it is clear that an appellate court may take judicial notice of public acts and facts of common knowledge bearing on a doubtful issue of statutory construction. If the court below took judicial notice of some fact that wasn’t so, appellant, on appeal to us, by reference to official records or in some other appropriate way, could bring the true situation to our notice, and we in our turn, taking judicial notice of the relevant facts, could review any error in statutory interpretation committed by the court below as the result of a misapprehension of the facts judicially noticed by it. Appellant, however, has not undertaken to enlighten us on these matters. Indeed, appellant does not deny the fact, as stated by the court below, that appellant, himself was the preannounced choice for city manager of the winning party at the general elections of 1936. And there seems to be no doubt of the further fact, stated by the court below, that when the newly elected commissioners came into office on January 4, 1937, they proceeded at once to appoint appellant as city manager.
Appellant is no doubt embarrassed by the argument ad hominem, namely, that appellant himself obtained the office of city manager upon an assertion of an interpretation of § 21 inconsistent with that which he now maintains. But we know of no principle of “estoppel” which would preclude appellant from taking this inconsistent position in the present proceedings.
The interpretation put upon the Act by the local political parties and by the successive boards of commissioners would be a relevant consideration in determining the construction of the Act, if the Act itself is deemed to be doubtful or ambiguous in meaning.
If we were free to take a wholly independent view of the point at issue we would be inclined to conclude that the meaning of § 21 is clear, and that the court below went beyond the permissible limits of interpretation in reading the clause “and shall hold office during good' conduct” as meaning that “the tenure of office of the city manager of the capital is that of four years, provided that during the same he observe good behavior.” But in Sancho Bonet v. Texas Co., 1940, 308 U.S. 463, 471, 60 S.Ct. 349, 353, 84 L.Ed. 401, the court said: “To reverse a judgment of a Puerto Rican tribunal on such a local matter as the interpretation of an act of the local legislature, it would not be sufficient if we or the Circuit Court of Appeals merely disagreed with that interpretation. Nor would it be enough that the Puerto Rican tribunal chose what might seem, on appeal, to be the less reasonable of two possible interpretations. And such judgment of reversal would not be sustained here even though we felt that of several possible interpretations that of the Circuit Court of Appeals was the most reasonable one. For to justify reversal in such cases, the error must be clear or manifest; the interpretation must be inescapably wrong; the decision must be patently erroneous.”
We are not prepared to say that the judgment now under review is “inescapably wrong.” For many years this court has not had much luck in reversing the Supreme Court of Puerto Rico on questions of local law. As we pointed out in de La Torre v. National City Bank, 1940, 110 F.2d 976, 983, “though Congress has given us appellate jurisdiction over the Supreme Court of Puerto Rico in matters of local law where the value in controversy exceeds $5,000, the exercise of this jurisdiction is so restricted by the canon prescribed by the Supreme Court of the United States that appeals in such cases are likely to be futile and merely to cause needless delay and expense.”
It may be pointed out that our function in this class of cases, technically, at least, is different from that of the Supreme Court of the United States upon review of decisions of state courts. There, the Supreme Court has no appellate jurisdiction in matters of state law, and hence it accepts as conclusive the decisions of the state tribunals in matters of local law. But Congress has given us, and the Supreme Court of the United States upon certiorari, appellate jurisdiction over the Supreme Court of Puerto Rico in matters of local law where the jurisdictional amount is involved. It may well be that as a matter of legislative policy we ought not to have this jurisdiction; the present case is a good example, involving as it does a political matter of strictly local concern in San Juan, Puerto Rico. But as the law now stands litigants bring these cases to us as a matter of right, and we have to pass on them. It is a bit humiliating to this court to be obliged to act practically as a rubber stamp, or else to be reversed by the Supreme Court of the United States.
Incidentally, we have two lines of appellate jurisdiction from Puerto Rico, one from the United States District Court for Puerto Rico~ and the other from the Supreme Court, of Puerto Rico. 28 U.S.C.A. § 225. Appeals from the District Court may involve questions of local Puerto Rican law; so far as we know, the “inescapably wrong” rule has never been applied in such cases. Suppose, upon such an appeal, we should decide a question of local law which had never been passed upon by the Supreme Court of Puerto Rico, and that subsequently, in other litigation, the same question should come before that court. Would it be “inescapably wrong” if it should refuse to follow our previous ruling on the point? Or is the Supreme Court of Puerto Rico free in such a case to make its own interpretation of the local law, brushing aside an earlier decision of this court, which on the face of 28 U.S.C.A. § 225 has appellate jurisdiction over it?
We have gone into this case at such length not in any spirit of complaint, because we recognize that the Supreme Court of the United States applies to itself the same self-denying canon which it imposes on us; and it may be a good thing. But to save future litigants from disappointment and futile expense, we wish to reiterate that our appellate jurisdiction in this class of cases is pretty much of a dead letter.
The judgment of the Supreme Court of Puerto Rico is affirmed, with costs to the appellee.
Act No. 99:
“Section 9. — The legislative powers conferred by this Act on the Capital shall be exercised by a governmental body which shall be officially known as ‘Board of Commissioners of San Juan.’ This Board of Commissioners shall be composed of five members, who shall be appointed by the Governor of Porto Rico, with the advice and consent of the Insular Senate, for the following terms:
One Commissioner for a term of one year;
One Commissioner for a term of two years;
One Commissioner for a term of three years;
One Commissioner for a term of four years;
One Commissioner for a term of five years.
“None of the first five commissioners appointed in accordance with this Act shall assume his ofiice until his appointment has been confirmed by the Insular Senate.
“Section 10. — There are also hereby created the offices of City Manager, Treasurer, Director of Public Works, Director of Health and Charities, School Director, Auditor and Secretary of the Capital.
“Section 21. — The City Manager shall be the chief executive of the Capital; he shall be appointed by the Board of Commissioners created by this Act and shall hold office during good conduct.
“Section 22. — The City Manager may be removed by the Board of Commissioners, for just cause, upon hearing and an opportunity to defend himself either in person or through attorneys. The following shall be causes for the removal of the City Manager: Any act of his constituting a felony; any act of his constituting a misdemeanor and implying moral turpitude; or carelessness, inexcusable negligence in the performance of his duties, or immoral or incorrect conduct in the exercise thereof.
“Section 26. — The City Manager shall appoint the following officers:
(1) Treasurer of the Capital;
(2) Director of Public Works;
(3) Director of Health and Charities;
(4) School Director;
(5) Secretary of the Capital.
“Section 27. — The Treasurer, the Director of Public Works, the Director of Health and Charities, the School Director, and the Secretary of the Capital may be removed by the City Manager, for just cause, upon hearing and an opportunity to defend themselves either in person or through attorneys. The following shall be causes for the removal of said officers; Any act of theirs constituting a felony; any act of theirs constituting a misdemeanor and implying moral turpitude; carelessness, or inexcusable ignorance in the performance of their duties, or immoral or incorrect conduct in the exercise thereof.
“Section 36. — The Auditor of the Capital shall be appointed by the Board of Commissioners. This official may be removed by the Board of Commissioners for just cause, after a hearing and an opportunity to defend himself either personally or by attorneys. Causes for removal of this official shall be any act performed by him which constitutes a felony; any act performed by him which constitutes a misdemeanor and implies moral turpitude; carelessness or inexcusable negligence, or immoral and incorrect conduct, in the discharge of his office. * * * * e * •
“Section 39. — All appointments of employees shall be made by the respective officers, according to the department, of the Capital in which they render services. Said employees shall be appointed for the term for which each officer is appointed. The employees of the Capital may be removed for just cause by the officer appointing them, after a hearing and an opportunity to defend themselves. Any employee may be suspended from office and salary upon the preferment of charges against him by the corresponding official.
“Section 50. — The Board of Commissioners created by this Act shall be elected by popular vote at the general elections to be held in 1936, and every four years thereafter. The Commissioners appointed by the Governor of Porto Eico in accordance with section 9 of this Act shall hold office until the first Monday in January of 1937.”
Amendatory Act. No. 10:
“Section 1. — Section 50 of Act No. 99, entitled ‘An Act to establish a special government for the Capital of Puerto Eico, and for other purposes’, approved May 15, 1931, as subsequently amended, is hereby amended to read as follows:
“ ‘Section 50. — The Board of Commissioners created by this Act shall be composed of nine members. Five of these nine members shall be elected by the popular vote of the qualified voters of both precincts of San Juan at the general elections to be held in 1940 and each succeeding four years. The other four members shall be appointed by the Governor of Puerto Eico with the advice and consent of the Insular Senate. The nine members of the Board of Commissioners shall take office on the second Monday in February following each general election; Provided, That the five members of the Board of Commissioners elected at the general election of 1936 shall continue in office until the end of the terms for which they were elected, and said Board of Commissioners shall be increased in the manner indicated as soon as this Act takes effect. * * * * * *
See People of Puerto Rico ex rel. Luis A. Castro, - P.R.R. -, decided by tbe Supreme Court of Puerto Rico July 29, 1942.
Whose “life”? Presumably not that of the employee, for the idea in § 39 seems to be that the employee holds office during the tenure of the officer who appointed him. If appellant is correct, the tenure of the city manager is for life unless sooner terminated by his resignation or removal for cause.
In Ms opposition to the motion of the Board for stay of execution of the judgment insofar as it ordered reinstatement, filed in the court below, appellant, referring to the tenure of his predecessor in the office, said: “The fact remains that Mr. Benitez Castaño did not cease in the exercise of his office because a part of the Board of Commissioners was again elected in 1936, but because of his voluntary resignation, effective many months after January, 1937.” But we note that in appellant’s original petition in the District Court of San Juan, seeking review of the Board’s order of removal, appellant recites that he “held the public office of City Manager, appointed therefor by the respondent Board on the 4th of January 1937.” In the complaining petition filed before the Board, seeking removal of appellant, it is recited: “The respondent, Carlos M. de Castro is and has been at all times stated in this petition City Manager having been appointed by the Board of Commissioners of the Capital for that office during good conduct, in the month of January 1937, the said Carlos M. de Castro having taken possession of said office on the 4th day of January 1937 temporarily and on the 19th day of March 1937, as proprietor.” Appellant’s answer, referring to this paragraph in the complaint, states: “He admits that he is City Manager, appointed by the Board of Commissioners of San Juan and has been in the discharge of his present office from the 4th day of January 1937 up to the present time.” In the court’s opinion in Rodriguez v. de Castro, 1937, 52 P.R.R. 275, 277, there is quoted a letter written by appellant stating that Mr. Jesús Benitez Castaño “ceased to be City Manager of the Capital on the 19th of March, 1937.” It may be surmised from all this that the newly elected board coming into office on January 4, 1937, asserted on that day its power to appoint, and did appoint, appellant as city manager, but that the incumbent, Mr. Benitez Castaño, at -first demurred, perhaps making the claim which appellant now makes on this appeal, that the city manager holds office “during good conduct”.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "state government (includes territories & commonwealths)", specifically "legislative". Which specific state government agency best describes this litigant?
A. Legislature or separate house as an organization
B. Legislative Committee or Commission
C. Other Legislative Unit
D. not ascertained
Answer:
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songer_state
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40
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What follows is an opinion from a United States Court of Appeals. Your task is to identify the state or territory in which the case was first heard. If the case began in the federal district court, consider the state of that district court. If it is a habeas corpus case, consider the state of the state court that first heard the case. If the case originated in a federal administrative agency, answer "not applicable". Answer with the name of the state, or one of the following territories: District of Columbia, Puerto Rico, Virgin Islands, Panama Canal Zone, or "not applicable" or "not determined".
Javier DIAZ, et al., Plaintiffs, Appellees, v. Vincent CIANCI, Etc., et al., Defendants, Appellees. Louis DeFrances, et al., Defendants, Appellants.
No. 83-1609.
United States Court of Appeals, First Circuit.
Argued April 4, 1984.
Decided June 25, 1984.
Joseph F. Penza, Jr., Providence, R.I., with whom Olenn & Penza, Providence, R.I., was on brief, for Vincent Cianci; etc., et al.
David A. Cooper, Providence, R.I., for Javier Diaz, et al.
Before CAMPBELL, Chief Judge, BOWNES, Circuit Judge, and HUNTER, Senior District Judge.
Of the Western District of Missouri, sitting by designation.
ELMO B. HUNTER, Senior District Judge.
Javier Diaz sued to recover damages for injuries sustained at the hands of the Providence Police after being stopped for a traffic violation. Diaz’s grandmother joined in the suit to recover medical expenses she incurred for Diaz as a result of the beating. At the close of plaintiffs’ case, the City and its officials were granted a directed verdict and trial proceeded solely against the individual patrolmen. After a three day trial, the jury returned verdicts favorable to both plaintiffs against all three individual defendants granting actual and punitive damages. The defendants appeal the judgment of the district court on three principal grounds: (1) exclusion of evidence of Diaz’s juvenile conviction for assault arising out of the same incident; (2) exclusion of evidence pertaining to the activities of officers Glancy and Grover and evidence that officer Glancy was injured in his struggle at the scene with a third party; and (3) improper jury instruction.
(1) The trial court granted plaintiff’s motion in limine and barred introduction of the fact that Diaz had been prosecuted and found guilty of assaulting DeFrances and Grover during the very incident which gave rise to the instant litigation. This ruling was based on alternative reasons. The trial court found that the evidence should be excluded under Federal Rules of Evidence 403. The court exercised its discretion to exclude otherwise relevant evidence when its probative value is substantially outweighed by the danger of unfair prejudice, or if.it would be misleading to the jury. The court found that the juvenile adjudication suffered by the plaintiff if revealed to the jury would result in unfair prejudice. The court was concerned that the evidence would be taken by the jury to indicate that the force the police used was necessary, when in fact the conviction might have been based on a minimum amount of force used by the plaintiff. Since the jury would be able to hear all of the first hand evidence relating to whether the force used by the police was reasonable, the value of introducing the conclusion of a prior fact finder was considered substantially less weighty than the potential unfair prejudice it might cause.
Alternatively, the trial court found that the juvenile adjudication was not admissible under Rhode Island General Laws § 14-1-40 which prohibits the use of the disposition of juvenile proceedings as evidence against the child in any case or proceeding in any other court. Given the great possibility of prejudice and the potential for confusion on the part of the jury,' the trial judge acted within the permissible bounds of his discretion in excluding the evidence of Diaz’s juvenile adjudication. See Shepard v. General Motors Corp., 423 F.2d 406, 408 (1st Cir.1970). Since exclusion of the evidence was permissible under the federal rules, we find it unnecessary to decide whether the Rhode Island statute overrides application of the federal rules and required exclusion of the evidence.
(2) The trial court excluded some evidence pertaining to officers Glancy and Grover’s activities at the scene of the beating and excluded an emergency room report pertaining to officer Glancy’s injuries inflicted by one of Diaz’s passengers, Dennis Isom. Defendants claim they were entitled to have the jury hear their account of what they were doing with Dennis Isom during the time that Diaz was beaten. They claim the testimony was admissible on the issue of whether they were in a position to intervene to stop the other officer and keep him from violating Diaz’s rights. Defendants concede that the trial court admitted evidence on this point, but claim they should have been able to go into greater detail so that the testimony would have carried more weight. The record is clear that the court did in fact allow both officer Glancy and officer Grover to testify about their activities with respect to Isom at the time officer DeFranees was beating Diaz. For example, officer Grover testified that he saw Isom grab DeFranees around the neck, that Grover and Glancy attempted to enter the back seat to stop Isom and were both kicked by Isom in the process and that Glancy was knocked down. Grover further testified that Glancy and Grover apprehended Isom and placed him in the patrol car, that during their struggle with Isom they didn’t see the struggle going on between DeFranees and Diaz, that after Isom was put in the patrol car De-Frances and Diaz were rolling on the sidewalk and that Grover saw DeFrances strike Diaz. Grover testified that after reporting to the station, they were told to go to the hospital to get medical attention, and that the doctor told him to take off one and one-half days.
Glancy testified that while he was trying to get Isom out of the back seat his attention was on Isom and he was unable to observe what was going on in the front seat. Glancy testified that he did not have the ability to observe DeFrances from the time of the initial scuffle with Isom until after Isom had been apprehended and taken into custody. At that point Glancy was approximately 25 feet from the Diaz vehicle, and could not see the ongoing fight with Diaz. . Glancy stated he saw the be-. ginning of the fight with Diaz, and could have been in a position to stop DeFrances, but instead decided to arrest Isom.
A review of .the evidence excluded indicates that all of the excluded evidence was cumulative. The record at several points shows testimony pertaining to the confrontation Grover and Glancy claim to have had with Isom. The defense attorney admitted to the trial judge that the principal reason the evidence was offered was to rebut plaintiffs evidence on matters collateral to the central issues of the case. App. at 292-93. The trial judge did not abuse his discretion in excluding the cumulative evidence pertaining to a collateral matter.
(3) Defendants contend that the instructions to the jury allowed a finding for the plaintiffs and against officers Glancy and Grover “if they found Glancy and Grover at the scene where a beating was taking place and did nothing to prevent it,” even if there was no finding that Glancy and Grover were in a position to do anything about - the beating. The jury was instructed that there was no evidence that officers Glancy or Grover beat the plaintiff, and that they could only find Glancy and Grover liable upon a finding that:
(1) They in fact saw the infliction upon the plaintiff of the alleged beating, that is, of the alleged unconstitutional conduct; and
(2) They failed to act, and that their failure to act sprang from an intent on their part to deprive the plaintiff of his civil rights.
The instructions as given did go further than the defendant claims is necessary. The cases cited by defendant indicate that a police officer may be liable for mere failure to intervene to stop a violation of civil rights when the officer was in a position to intervene. See, Putman v. Gerloff, 639 F.2d 415, 423 (8th Cir.1981). This would amount to liability for mere unreasonable nonfeasance. The instructions as given allowed the jury to find the defendants liable only if their failure to act was caused by an intent to deprive Diaz of his constitutional rights. In affirming the judgment under the instructions given, we do not decide whether a finding of intent is required to impose liability. Rather, we merely find that if the instructions were erroneous, any error was in favor of and not prejudicial to the appellants.
The judgment of the district court is 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_opinstat
|
B
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify whether the opinion writter is identified in the opinion or whether the opinion was per curiam.
UNITED STATES of America v. Michael H. HINKLE, Appellant.
No. 72-1990.
United States Court of Appeals, District of Columbia Circuit.
Argued Sept. 5, 1973,.
Decided Nov. 7, 1973.
Rehearing Denied Dec. 4, 1973.
Robert L. Weinberg, Washington, D. C., and John F. Mathews, appointed by this Court, for appellant.
Lee Cross, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty., John A. Terry, and Warren L. Miller, Asst. U. S. Attys., were on the brief, for appellee.
Before BAZELON, Chief Judge, and LEVENTHAL and ROBINSON, Circuit Judges.
PER CURIAM:
Appellant was indicted for second degree murder. The evidence showing that Hinkle stabbed the decedent was undisputed. Hinkle, himself, testified that he had no recollection of the events that took place on the evening in question because he was intoxicated. His defense rested on claims of self-defense, provocation, lack of malice, and a contention that the fatal wound was not the one he administered, but one that occurred during the surgery occasioned by the initial wound. The jury found him guilty as charged, and he was sentenced to five to twenty years, to run concurrently with sentences in two other cases.
On appeal, Hinkle raises several challenges to his conviction: failure to hold a coroner’s inquest into the cause of death; improper jury instructions on the definition of malice; failure to allow the jury to consider appellant’s intoxication in deciding whether he acted with sufficient “recklessness” to justify a finding of second degree murder; and failure to grant a subpoena duces tecum for production of the deceased’s juvenile records.
We do not address the issues of whether appellant’s first and last contentions constitute error, for we find that even if they were error, in the context of this case they were harmless. Although appellant was entitled to a coroner’s inquest, Crump v. Anderson, 122 U.S.App.D.C. 173, 352 F.2d 649 (1965), the likelihood that the inquest if held would have produced evidence tending to exculpate him is so remote that we see no justification for reversing, and in effect (since a coroner’s inquest is now impossible), dismissing his homicide charge. Similarly, even if Hinkle were entitled to subpoena the deceased’s juvenile records, it seems inconceivable that they would be of any assistance to him. He claims that they might show prior acts that indicate' a propensity toward violence, and thereby buttress his claim of self-defense. But appellant’s case on self-defense was virtually non-existent, and thus it does not appear that he was harmed by being denied the juvenile records.
Appellant’s claim that the trial court gave an improper jury instruction on malice is a troubling one. He requested the proper instruction as set forth in our decision in United States v. Bush, 135 U.S.App.D.C. 67, 416 F.2d 823 (1969) . Bush prohibited use of the phrase “ ‘malice’ is a state of mind showing a heart regardless of social duty,” and in subsequent cases we have advised that the Bush instruction should be used “to avoid a claim of reversible error.” Carter v. United States, 141 U.S.App.D.C. 259, 437 F.2d 692, 697 (1970) . In the face of these decisions, defense counsel’s request, and his subsequent objection, the court still gave the improper “social duty” instruction. The Government now admits that the court’s instruction was error, but argues it was harmless. We are concerned that the court would simply ignore the proper instruction in these circumstances, but since death was caused by a knife wound, we do not find that appellant was harmed by the erroneous instruction. We hope that in the future, trial courts do not place us in this sort of difficult situation.
We take this occasion to amplify on Bush by condemning interrelated portions of the “old” standard instruction :
“Malice” is a state of mind showing a heart regardless of social duty, a mind deliberately bent on mischief, a generally depraved, wicked and malicious spirit.
In Bush, as indicated above, we set forth the need for eliminating the phrase whereby any violation of “social duty” or “duty” might be equated to malice, even though not dangerous to life or limb. On further reflection, we conclude that similar problems of over-réach are presented by the segment that defines malice in terms of “a mind deliberately bent on mischief, a generally depraved, wicked and malicious spirit.” Juries are to determine whether specific acts have been committed with requisite culpability, not whether defendants have generally depraved, wicked and malicious spirits. A sound replacement for the original sentence would be simply this:
“Malice” is a state of mind showing a heart that is without regard for the life and safety of others.
Here again we recognize that there are eases where the old instruction could lead a jury to misconstrue its role or be otherwise prejudicial; however, the facts before us do not present such a case. Although we do not reverse Hin-kle’s conviction, we trust that our comments on the deficiency of the old “standard” instruction will be given heed.
Appellant also alleges error in the failure of the trial court to instruct the jury as to the difference in the nature of recklessness required for second degree murder, and that required for manslaughter. Although we do not foreclose consideration of this issue in an appropriate case, the facts here do not justify serious consideration of the matter at this time.
Otherwise we find appellant’s trial without error. His conviction is therefore
Affirmed.
. The office of coronor and the statutory requirement of an inquest have been abolished in the District of Columbia.
. See Evans v. United States, 107 U.S.App.D.C. 324, 277 F.2d 354 (1960).
. See also United States v. Lumpkins, 141 U.S.App.D.C. 387, 439 F.2d 494 (1970).
. See United States v. Johnson, 140 U.S.App.D.C. 54, 433 F.2d 1160, 1164 n. 27 (1970) ; United States v. McCall, 148 U.S.App.D.C. 444, 460 F.2d 952, 958 (1972).
Question: Is the opinion writer identified in the opinion, or was the opinion per curiam?
A. Signed, with reasons
B. Per curiam, with reasons
C. Not ascertained
Answer:
|
songer_counsel1
|
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 appellant. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
ÆTNA LIFE INS. CO. v. AIRD et al.
No. 9146.
Circuit Court of Appeals, Fifth Circuit.
Dec. 14, 1939.
J. D. Wheeler, of San Antonio, Tex., for appellant.
George Cannon and C. W. Trueheart, both of San Antonio,» Tex., for appellees.
Before SIBLEY, HUTCHESON, and HOLMES, Circuit Judges.
HUTCHESON, Circuit Judge.
The suit, upon an accident policy, was for the double indemnity it offered insured for injuries, caused “by collapse of the outer walls, or burning of a building, if the insured is therein, at the time of the collapse or commencement of the fire.”
The-claim was that, within the meaning of the policy, an automobile trailer was “a building”, and insured’s death was caused by its burning. The defense was; (a) that, the trailer was not and could not be “a building” within the policy terms; and (b) that, insured’s death was not caused by its burning, but by the preceding gasoline explosion.
The evidence in, plaintiffs’ and defendant, each, moved for an instructed verdict. Plaintiffs’ motion was that, as matter of law, they had made out, defendant’s that as matter of law, they had failed to make out, the case they sued on.
The District Judge denied both motions. Thereafter, the parties agreeing, he reserved for his own decision, whether the trailer was “a building” within the policy, and submitted to the jury, subject to the motions for verdict, the single’ question; whether the insured’s loss of life was caused by the burning of the trailer, “he being therein at the time of the commencement of the fire.”
Both parties moving for judgment upon the coming in of the verdict, the District Judge denied defendant’s, granted plaintiffs’, motion. In a thoughtful opinion, which leaves little to be said, he clearly and fully set out the undisputed facts and gave well considered reasons for his affirmative conclusion upon them, that as located and used at the time of the fire, the trailer was “a building”, and that within the coverage of the policy, insured’s death had been caused by its burning.
Agreeing with the statement and conclusions of, and with most of what is said in, the opinion, we refer to it with approval, and will content ourselves here with briefly summarizing the material facts, as the record discloses them, and with elaborating only a little upon the reasons the District Judge gave for his conclusion.
Streamlined, mounted on two wheels, and capable when connected with beast or vehicle having motive and tractor power, of swift and easy motion, though it was, it was not automotive, and it was not bought to be, nor was it, used, except incidentally, for locomotion. The only use made of its movability was to get it to the place where it was to be used, just as ready cut houses, if small enough, may be and sometimes are moved, and set up complete. Well, indeed completely, equipped as a place in which to live, with beds, bath, toilet, cooking facilities, side walls, a roof and floors, and with cross walls subdividing it into parts, it was bought and equipped to be, and at the time of the fire, was being and had for a week been, used, as deceased’s residence and office combined. In effect, a modern efficiency apartment, it had been transported to the oil field where the deceased was drilling a well, and there, disconnected from the automobile, it had been raised up, its four corners supported by four heavy special jacks placed directly underneath its substantial steel braced beamed floor, and its outside walls. Thus, what had been built for a dwelling or place to live, movable from place to place, was at rest, and was being occupied as a dwelling, as completely as if, instead of a trailer, it were a ready cut or knocked-down house, transported to the field, either set up, or in units for setting up.
As such, it was certainly a building, in the sense of a dwelling, 12 C.J.S., Building, p. 378, Rouse v. Catskill & N. Y. Steamboat Co., 59 Hun 80, 13 N.Y.S. 126; Neekamp v. Huntington Chamber of Commerce, 99 W.Va. 388, 129 S.E. 314. It was too, a building, in the generic sense of something built or constructed for use as a shelter or habitation for man or beast. If instead, of a completed trailer, the material which made it up, had been assembled on the lease, and there built into a dwelling or habitation for deceased’s use, no 'one could, we think, contend that the resulting structure was not a building. The fact that it was completed before transportation and equipped with wheels to roll it, does not, we think, at all change the undisputed fact that in every essential respect, it was built for and was being used by deceased, as a shelter and habitation, in short, a dwelling. The District Judge, in his opinion pointed out the great scope and breadth of the term, and to the many holdings of the courts, that comprehensive, generic, and having no inflexible meaning, applicable to all cases alike, but having flexibility and varying with the context and surrounding circumstances, those who would seek a narrowing construction for it in a particular context, must show sound reason for that narrowing. We set out other references in the margin to the same effect.
Emphasizing the trailer’s mobility, appellant seems to think that because it was adapted for road travel and was capable of obtaining high speeds when automobile drawn, it must be held to be, not “a building”, but a motor car. The District Judge shared appellant’s sensitiveness to this factor, sufficiently to say, undoubtedly, when it was resting upon its wheels and attached to an automobile and proceeding along the highways of the state, it could not, by any stretch of the imagination, be conceived to be “a building.” But he thought the contrary was true, when raised off its wheels and jacked up, it was for the time being, stationary and incapable of motion.
In the light of the record, the writer thinks the trailer’s mobility is of small significance in determining whether, within the policy terms, it is “a building.” What is dominant in the coverage is, that the accidental injury must be received while the insured is within the four walls. What is dominant here, as to the trailer, is the purpose for which it was built and used, and to which it is primarily adapted. That purpose, to be used as a shelter and habitation for deceased, in short, a dwelling house, stands out in and dominates the case. A dwelling house, constructed so as to be easily movable, at times, running or standing on its wheels, at times, sitting fixedly on jacks or other rigid support, it is still at all times, a dwelling house. A built dwelling house, having greater commodiousness, convenience and adaptability, to the uses of a house dweller, than huts, shacks, hovels, shanties, and even many small houses of a better grade, all of which are of course, buildings. If we should suppose the case of a hut, shanty, or other small house, sitting upon a wagon or truck, having wheels, so that it might be moved about, from place to place, for the convenience and use of the dweller, I think it would hardly be contended, that a dweller in it holding a policy of the kind at bar, was not covered as to injuries caused by its burning while he was in it, because the house could be, or was being moved about on wheels.
I see no more reason to deny coverage to a building of the trailer type, merely because it has wheels to run on.
' Upon appellant’s other point, 'that the evidence establishes as matter of law, that the deceased’s death was not from the burning of the building, but from the gasoline explosion which preceded it, it will serve no useful purpose to set the evidence out here. It is sufficient to say that we have carefully examined it, that it clearly makes a jury issue, and that the District Judge was right in denying both motions for a directed verdict.
The judgment was right. It is affirmed.
Aird v. Ætna Life Insurance Co., D.C., 27 F.Supp. 141.
1 Words and Phrases, Fifth Series, 1932-1939, pages 749-751; State v. Ebel, 92 Mont. 413, 15 P.2d 233, 235— held; that a movable sheep wagon a “structure, erected for the purpose of habitation and the housing of the goods and chattels of the sheep herder, inclosed within four walls and roofed over and meets all the requirements of the definitions given of a ‘building,’ ” and that “to hold that the verdict and judgment should- be set aside because the house * * * was set on wheels would be extremely technical.”
In Jenney v. Hynes, 285 Mass. 332, 189 N.E. 102. A cheap material structure 16 x 4 & 5 ft. 9 in., for use at a filling station, was held a building within restrictions against the erection of a building.
People v. Burley, 26 Cal.App.2d 213, 79 P.2d 148, 149, held; a pop corn stand on wheels, 8x10 by 7 ft., with a floor, four walls, a roof, a door and windows, was a building, notwithstanding it was not permanently affixed to the realty, but was on a cable and was moved about on its wheels.
In Inter-Ocean Casualty v. Warfield, 173 Ark. 287, 292 S.W. 129, held; a quarter boat used by Government employees engaged in river improvement work, .where they slept and ate, was a dwelling house, during such employment within the meaning of the policy insuring an efnployee against injuries by burning of a dwelling house.
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_usc1
|
18
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title.
UNITED STATES of America, Appellee, v. John TORTORA, Appellant. UNITED STATES of America, Appellee, v. Samuel SANTORO, Appellant.
Nos. 496, 642, Dockets 71-2114, 72-1170.
United States Court of Appeals, Second Circuit.
Argued April 4, 1972.
Decided July 24, 1972.
Stephen J. Sundvold, Atty. (Henry E. Petersen, Asst. Atty. Gen. and Sidney M. Glazer, Atty., Dept, of Justice, Washington, D.C., on the brief), for appellee.
Irving Anolik, New York City, for appellant Tortora.
Irving Anolik, New York City, of counsel to Lanna, Coppola & Rosato, Yonkers, for appellant Santoro.
Before CLARK, Associate Justice, LUMBARD and KAUFMAN, Circuit Judges.
United States Supreme Court, retired, sitting by designation.
LUMBARD, Circuit Judge:
Samuel Santoro and John Tortora were found guilty after a jury trial in the Southern District on fifteen counts of engaging in loanshark operations in violation of the federal Extortionate Credit Statute, 18 U.S.C. §§ 892-94, and on one count of conspiring so to do. We affirm.
Appellants seek reversal of their convictions on several grounds, principal among them being Santoro’s claim that his trial could not proceed in his absence.
The indictment charged that Santoro and Tortora, along with Joseph Chiaverini, Gene Genaro and Nicholas Ratteni, lent money to Joseph Formiglia although they had reasonable grounds to believe that the money would be used by Formiglia to make extortionate loans. It further charged that they had used extortionate means to collect the money loaned to Formiglia.
The scheme began in November 1969 when Formiglia, a jeweler, borrowed $400 from Santoro, promising to pay $40 a week interest until the $400 principal was repaid. Shortly after this first loan was made Formiglia wanted additional money, but did not want to borrow it under his own name. Thus he conceived the idea of borrowing from Santoro on the pretext that he himself was relending the money at usurious rates. Beginning in early December 1969, Santoro made additional loans to Formiglia, amounting to approximately $11,000 by the middle of February 1970. Tortora frequently was present when these loans were made. Ratteni was present at two of the transactions.
By late February 1970, Santoro suspected that Formiglia was not actually relending the money. Chiaverini was delegated to go with Formiglia on his next collection date to visit his “customers.” When Formiglia protested that his customers might not like this arrangement, Santoro said, “We’ll go around and collect the f____’ money or we’ll break their heads if they don’t pay us.”
Formiglia feigned sickness on the collection date, but this merely confirmed Santoro’s suspicions that Formiglia’s customers were nonexistent and that the “loans” were only a pretense to cover Formiglia’s own borrowing. Santoro met with Formiglia and threatened to split Formiglia’s tongue or put a “bullet through [his] head” unless the money was repaid.
A few days later Tortora went to the jewelry store where Formiglia worked and told him, “My man, you are in a lot of trouble . . . what are you going to do about these f______ loans.” No arrangements for repayment were made, however. Later that day Santoro telephoned Formiglia, who said that he was going out of town, whereupon Santoro replied, “Have a good time because it’s your last trip.” The next week Tortora went to Formiglia’s store and told him to show up at a meeting at Genaro’s fish market regarding repayment of the loans or Tortora would “drag [him] up by [his] head.”
Frightened by these threats, Formiglia called the Yonkers Sheriff’s office and was instructed to telephone Tortora and delay the meeting one day. The Sheriff’s office then recorded the conversation.
Wearing a hidden tape recorder supplied by the Sheriff’s office, Formiglia met with Tortora the following day at the fish market. Tortora accused Formiglia of juggling the loans and suggested that to repay the loans Formiglia might have to rob a store. Tortora then telephoned Santoro and put Formiglia on the line. Santoro said that if Formiglia did not pay he would break Formiglia’s wife’s head and burn down his house. Tortora then told Formiglia that he better work out a deal to repay the money.
The next day Formiglia arranged to go to Santoro’s house, ostensibly to repay the loans. He brought with him money supplied by the Westchester County District Attorney’s Office. After Formiglia had been in the house a short while, investigators from the District Attorney’s Office entered and arrested Santoro with his hands on the money. Tortora was later arrested by the FBI.
Both Santoro and Tortora pleaded not guilty to the indictments in January 1971 and were released on bail. The case was called for trial on April 15, 1971. At that time Judge Pollack was advised that the attorney for the government had trial commitments in May, and that the attorney for Ratteni also had trials during May and another set for June 21. Additionally, a government agent assigned to the case was unavailable between July 17 and July 24.
Santoro was then in court with Peter Rosato, a partner of Santoro’s retained counsel, Vincent W. Lanna. Rosato told the court that Lanna was then on trial in a state criminal case which would take until the middle of May, had other trial and Army reserve military obligations through the end of August, and would be free only from July 12 to July 26. Judge Pollack thereupon set August 10 as the most convenient date for trial and told Santoro to arrange for substitute counsel if Lanna would be unable to appear.
Lanna wrote to the court on July 21 that Santoro had refused other counsel and insisted that Lanna represent him. The trial judge notified Lanna that the trial would proceed as scheduled and that he was not relieved of his duties as counsel.
The case was called for trial on August 10 with 100 veniremen present. The Government, Genaro and Ratteni were ready. Tortora and Chiaverini were absent, having been hospitalized allegedly for bronchitis and back pains respectively. The court revoked bail and issued bench warrants for their arrest. Santoro was present with Rosato, but Lanna was absent on military duty. The court then assigned Rosato to represent Santoro, but said that an additional attorney would be appointed if Santoro or Rosato desired. Santoro later accepted the court’s offer and Mark Landsman was assigned as an additional defense attorney. The court then reset the trial date for August 16.
On August 16 Tortora was brought to court. Dr. George Grayson, chief resident of the Chest Center at Bellevue Hospital, testified that Tortora was able to participate in his defense. After hearing this testimony and observing Tortora, the court ruled that he was competent to stand trial.
The remainder of the defendants, except for Santoro, were also present. Rosato and Landsman told the court that they had both last seen Santoro on August 12. Rosato, however, had been telephoned by Santoro on August 15 to arrange for Rosato to drive him to court the next morning. Santoro was not at his apartment on August 16 when Rosato arrived although Santoro’s wife indicated that he had been there the day before.
The court found that the trial of the case had commenced on August 10 and that, as Santoro had voluntarily and knowingly absented himself from the trial, there was no reason not to continue the trial with him as a defendant. Santoro was thus tried along with Tortora, Chiaverini, Genaro, and Ratteni.
The Government’s case consisted mainly of Formiglia’s testimony and the taped conversations among Formiglia, Tortora and Santoro.
On Thursday, August 19, while the Government was still presenting its case, the court told the attorneys for the defendants that, if at all possible, testimony was to be concluded that week even if it meant a Saturday court day and that the defendants should have their witnesses present and ready to testify. On Friday the Government rested and Ratteni and Chiaverini each presented three witnesses and concluded their cases. Tortora’s counsel told the court that he was unable to proceed at that time because Genaro’s counsel had mistakenly sent one of Tortora’s five witnesses home and the others weren’t present. No showing was made as to what the absent witnesses would have testified. The court refused to grant a continuance, stating that the attorneys had been instructed to have all their witnesses present to testify in order that the trial be completed as quickly as possible. When Santoro offered no defense, court was adjourned until Monday. On Monday no further offer of proof was made on behalf of Tortora and none of his witnesses was present to testify.
At the close of the Government’s case the court had dismissed the indictment against Genaro for insufficient evidence. The case against the remaining defendants was sent to the jury under proper instructions. The jury acquitted Chiaverini and Ratteni, but convicted Santoro and Tortora.
Tortora claims that he was improperly denied the right to present witnesses on his behalf by the court’s refusal to grant a continuance on Friday afternoon. He had been advised by the court, however, to have his witnesses present and ready to testify. Apart from the witness mistakenly excused, Tortora should have had his other witnesses ready so that the trial would have been able to go forward. The witnesses were not even produced on Monday when the trial continued. Moreover, Tortora made no attempt to show that a continuance was warranted. The trial had been delayed numerous times and the trial judge may well have thought he was faced with another ploy to delay it further. Tortora should have made an offer as to what the witnesses would have testified to enable the trial judge to determine whether there was good cause for a continuance. United States v. Costa, 425 F.2d 950, 953 (2d Cir. 1969), cert. denied, 398 U.S. 938, 90 S.Ct. 1843, 26 L.Ed.2d 272 (1970). “[I]t is not every denial of a request for more time that violates due process even if the party fails to offer evidence . . . [Whether] a denial of a continuance is so arbitrary as to violate due process . . . must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied.” Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 849, 11 L.Ed.2d 921 (1964). Under the circumstances of this case, the trial judge did not abuse his discretion in failing to grant a continuance. United States v. Harris, 441 F.2d 1333, 1336 (10th Cir. 1971).
Tortora also claims that two of the prosecutor’s statements in his summation were so prejudicial and inflammatory as to preclude a fair trial. During his summation the Assistant United States Attorney said,
“ . . . And I submit that Formiglia was expected to get this money one way or the other to pay back these rates of interest. It was expected that Formiglia’s existence was the security and that if Formiglia was to get the money any way he could, whether it be to rob a store, whether it be to push narcotics, he was expected to repay the money and I say to you it is an ironic fate of justice, it is an ironic justice that instead of robbing a bank, instead of robbing a store, instead of pushing narcotics, Joseph Formiglia cheated them . . . .”
At another point he remarked “[H]ow much strength does it take to pull a trigger ?”
The rhetorical question was in response to the defense suggestion that Tortora was too small to frighten Formiglia and extort money from him. As a response to prior argument, the statement was within the limits of fair argument. United States v. Mattio, 388 F.2d 368, 371 (2d Cir.), cert. denied, 390 U.S. 1043, 88 S.Ct. 1643, 20 L.Ed.2d 305 (1968). Inasmuch as there was no evidence that the defendants had asked Formiglia to sell narcotics, however, the prosecutor’s statement indicating to the contrary was improper. But it was only a passing reference, and we are convinced that it did not improperly affect the jury’s verdict. Defendants are entitled only to a fair trial, not a perfect one.
We come now to Santoro’s contention that the trial of the charges against him should have been adjourned when he failed to appear in court on August 16. Briefly, he argues that no trial can begin unless the defendant is present, Rule 43, F.R.Crim.P., that the trial did not begin until August 16, at which time he was absent from the courtroom, and that his conviction was therefore unconstitutional. We disagree, and hold that a defendant may waive his right to insist that his trial begin only in his presence. When a defendant has pleaded to the charges against him and knows that the trial of the charges is to begin on a day certain, the trial may start in his absence if he deliberately absents himself without some sound reason for remaining away. Under the circumstances of this case, Santoro’s failure to attend court on August 16, when he knew that a jury would be selected and evidence presented, was a knowing and voluntary waiver of his right to be present at trial.
Like any constitutional guarantee, the defendant’s right to be present at trial may be waived, Snyder v. Massachusetts, 291 U.S. 97, 106, 54 S.Ct. 330, 78 L.Ed. 674 (1934), even if that waiver is implied from the defendant’s conduct, Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). The Supreme Court had long held that a defendant who knowingly absents himself from the courtroom during trial “leaves the court free to proceed with trial in like manner and with like effect as if he were present.” Diaz v. United States, 223 U.S. 442, 445, 32 S.Ct. 250, 254, 56 L.Ed. 500 (1912). Although to date, with the exception of the courts of one state, see State v. Tacon, 107 Ariz. 353, 488 P.2d 973 (1971), cert. granted, 407 U.S. 909, 92 S.Ct. 2446, 32 L.Ed.2d 682 (June 12, 1972), waiver has been found only if the defendant was present at least as late in the proceedings as the empanelment of the jury, we see no reason for a different result when the defendant absents himself, under the specific circumstances outlined herein, before the jury has been selected.
Waiver of a constitutional right must be both “knowing” and “voluntary.” A defendant who deliberately fails to appear in court does so voluntarily, and thus the important question is whether his absence can be considered a “knowing” waiver. We hold that it can. The deliberate absence of a defendant who knows that he stands accused in a criminal case and that the trial will begin on a day certain indicates nothing less than an intention to obstruct the orderly processes of justice. No defendant has a unilateral right to set the time or circumstances under which he will be tried. See United States v. Bentvena, 319 F.2d 916 (2d Cir.) cert. denied, 375 U.S. 940, 84 S.Ct. 345, 11 L.Ed.2d 271 (1963). When a trial judge designates a date for trial the defendant’s obligation is to appear ready in court on that date. “[T]he right to release before trial is conditioned upon the accused’s giving adequate assurance that he will stand trial and submit to sentence if found guilty.” Stack v. Boyle, 342 U.S. 1, 4, 72 S.Ct. 1, 4, 96 L.Ed. 3 (1951).
Without this obligation on the accused the disposition of criminal cases would be subject to the whims of defendants who could frustrate the speedy satisfaction of justice by absenting themselves from their trials. Today more than ever the public interest demands that criminal proceedings be prosecuted with dispatch, see Second Second Circuit Rules Regarding Prompt Disposition of Criminal Cases, 28 U.S.C.A. 442 (1972 Supp.), and the greater the delay between the charge and the trial date, the greater the likelihood that witnesses will be unable to appear or that their memories will have faded and their testimony will be less convincing. That a defendant can be convicted of bail-jumping if he fails to appear at trial is not sufficient to vindicate the public interest; the public is entitled to a speedy disposition of the criminal charges absent a finding by the court that good reasons exist for delay. “Thus there can be no doubt whatever that the governmental prerogative to proceed with a trial may not be defeated by conduct of the accused that prevents the trial from going forward.” Illinois v. Allen, supra, 397 U.S. at 349, 90 S.Ct. at 1063 (Brennan, J., concurring). A defendant’s knowing and deliberate absence does not deprive the court of the power to begin the trial and to continue it until a verdict is reached.
Before a trial may proceed in the defendant’s absence, the judge must find that the defendant has had adequate notice of the charges and proceedings against him. Notice is initially given to a defendant by the issuance of an indictment. But not until the defendant answers the indictment by pleading in open court to the charges therein can a court know with certainty that the defendant has been apprised of the proceedings begun against him. Thus no defendant can be tried until after he personally has entered a plea to the charge. It must clearly appear in the record, however, that the defendant was advised when proceedings were to commence and that he voluntarily, knowingly, and without justification failed to be present at the designated time and place before the trial may proceed in his absence. Cureton v. United States, 130 U.S.App. D.C. 22, 396 F.2d 671, 676 (1968); State v. Tacon, supra. This assures that the defendant has been accorded an opportunity to be present at all critical stages of the trial, see Rule 43 F.R.Crim. P., and thereby affords him due process of law. Having received actual notice when trial proceedings will take place, in the absence of some compelling excuse the defendant cannot obstruct the course of justice by absenting himself from the process, cf. Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970).
On the facts of this case, there were no constitutional constraints against the trial judge’s proceeding with the trial even though Santoro failed to appear on August 16. Santoro had pleaded not guilty to the indictment on January 8, 1971. Released on $20,000 bail, he then appeared before Judge Pollack on April 15, 1971, when the case was called for trial, and also on August 10, 1971, the date the court had set as the most convenient for this multiple-defendant trial. Santoro was present in open court when Judge Pollack continued the case until August 16. Indeed, at 11:30 P.M. on the evening of August 15, Santoro called his attorney to arrange for a ride to court the following morning. Thus it is clear beyond peradventure that Santoro had been adequately apprised that he was to appear in court on August 16 and that his trial would commence on that day. No justification, either to the district court or on appeal, has been offered for his absence. Having had every opportunity to present his defense, Santoro cannot now complain of his failure actively to participate therein or of the trial having proceeded without him. Accordingly, we hold that his conviction complied with all the requisites of the Constitution.
It is obviously desirable that a defendant be present at his own trial. We do not here lay down a general rule that, in every case in which the defendant is voluntarily absent at the empanelment of the jury and the taking of evidence, the trial judge should proceed with the trial. We only hold that this is within the discretion of the trial judge, to be utilized only in circumstances as extraordinary as those before us. Indeed, we would add that this discretion should be exercised only when the public interest clearly outweighs that of the voluntarily absent defendant. Whether the trial will proceed will depend upon the trial judge’s determination of a complex of issues. He must weigh the likelihood that the trial could soon take place with the defendant present; the difficulty of rescheduling, particularly in multiple-defendant trials; the burden on the Government in having to undertake two trials, again particularly in multiple-defendant trials where the evidence against the defendants is often overlapping and more than one trial might keep the Government’s witnesses in substantial jeopardy.
We hold that the trial judge was well within his discretion in refusing to adjourn the trial on August 16 or to sever Santoro’s trial from that of the other defendants. As a result of the difficulty of coordinating the defense attorneys’ conflicting schedules and the unsubstantiated claims of physical ailments made by two other defendants, numerous delays had already occurred in this multiple-defendant trial. The Government’s case rested almost exclusively on the testimony of one witness who had already been threatened on numerous occasions by the appellants. Extensive delays would almost certainly have accompanied any adjournment and the Government’s main witness would have continued to be in potential danger until his testimony was completed. Severance would have added substantially to the burden on the Government and its witnesses, necessitating two trials in the place of one: it would have been an unwarranted delay in the expeditious administration of justice. Moreover, the danger to the Government’s witness would have continued until that indefinite time in the future when the witness’s testimony in the second trial would have been completed.
Santoro’s only other claim of substance is that he was deprived of his Sixth Amendment right to the counsel of his choice. We cannot agree. No defendant has an absolute right to any particular counsel. Indeed the right to counsel can be waived entirely if a defendant does not retain an attorney within a reasonable time as set by the trial court. United States v. DiStefano, 464 F.2d 845 (2d Cir. July 18, 1972) at n. 1; United States v. Arlen, 252 F.2d 491 (2d Cir. 1958). Santoro was informed of the trial date more than three months in advance and was advised by the court that other counsel should be secured if Lanna were unable to appear. In fact, Santoro was represented by Mr. Rosato, who was familiar with the ease, and by Mark Landsman, a Legal Aid attorney. Thus no prejudice resulted to him from the unavailability of Lanna.
Affirmed.
. Tortora was sentenced to 10 years imprisonment on each of the substantive counts and five years on the conspiracy count, the sentences to run concurrently. Santoro was sentenced to seven years on each of the substantive counts and five years on the conspiracy count, the sentences also concurrent. In addition, lie received a five year sentence for jumping bail, to run concurrently with his other sentences.
. On August 13, Chiaverini was produced in court. The court heard extensive medical testimony regarding his medical condition. After the hearing, the court ruled that Chiaverini was competent to stand trial.
. Santoro was later apprehended and pled guilty, on January 25, 1972, to a charge of bail jumping. See note 1, supra.
. We deal witli Tortora’s other contentions seriatim. The trial judge’s determination that Tortora was competent to stand trial was arrived at only after hearing testimony and personally observing Tortora and was supported by substantial evidence. United States v. Bernstein, 417 F.2d 641, 643 (2d Cir. 1969). The tape recordings were admissible according to the trial judge’s discretion and nothing indicates that he abused that discretion. United States v. Kaufer, 387 F.2d 17, 19 (2d Cir. 1967). The statutes are not bills of pains and penalties directed against a class and prescribing guilt without a trial, but define with particularity certain criminal acts whose commission by the defendants must be proved at trial. Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 18 L.Ed. 356 (1867). The trial judge was entitled to receive hearsay evidence in determining Tortora’s sentence. United States v. Schipani, 435 F.2d 26, 27 (2d Cir. 1970), cert. denied, 401 U.S. 983, 91 S.Ct. 1198, 28 L.Ed.2d 334 (1971).
. As we think the controlling question is one of waiver, we find irrelevant those cases which deal with when jeopardy attaches. Thus Santoro’s citation of the double jeopardy cases holding that no jeopardy attaches until the jury has been empaneled is of no moment. The rule that jeopardy attaches once the jury is empaneled represents an historical judgment that, after the jury’s empaneling, the pressures inherent in a criminal proceeding reach such proportions that a defendant, absent exceptional circumstances, should not be made to run the gantlet more than once. Green v. United States, 355 U.S. 184, 187, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957). But guaranteeing a defendant this right does not answer the very different question of whether and when he has waived his right that the trial take place in his presence.
. Similarly, Santoro’s conviction complies with the requisites of Rule 43 of the Federal Rules of Criminal Procedure. The rule is no more than a restatement of the defendant’s constitutional rights, see Advisory Committee Note (“the rule is a restatement of existing laws”), and its protections can be waived by the defendant’s conduct.
. It is difficult for us to conceive of any case where the exercise of this discretion would be appropriate other than a multiple-defendant case.
Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number.
Answer:
|
songer_casetyp1_7-3-6
|
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 - property disputes".
MARTINEZ v. SANCHO, Treasurer.
No. 3505.
Circuit Court of Appeals, First Circuit.
Jan. 10, 1940.
F. Fernandez Cuyar and Carlos D. Vazquez, both of San Juan, P. R., for appellant.
William Cattron Rigby, of Washington, D. C. (B. Fernandez Garcia, of San Juan, P. R., and Nathan R. Margold, of Washington, D. C., on the brief), for appellees.
Before WILSON and MAGRUDER, Circuit Judges, and McLELLAN, District Judge.
PER CURIAM.
The plaintiff, appellant, bought a farm on which taxes for prior years had not been paid. Concededly when he bought the land, it was subject to a lien for the unpaid taxes for the current year and the three prior years, this by virtue of legislation by the Puerto Rican Legislature. Later, the defendants caused the property to be attached for these prior taxes and other taxes on the farm. Having paid or tendering taxes which had not become more “than three years old at the time of the attachment, the appellant sought an injunction against the attachment and sale of the land for the older taxes. Such an injunction against the defendants was ob-. tained in the District Court. The Supreme Court of Puerto Rico reversed the District Court and dismissed the complaint.
The basic question was and is one involving local laws and the construction of statutes enacted by the Insular Legislature. No provision of the Constitution of the United States, no Act of the Congress, no Treaty was discussed or considered by the Supreme Court of Puerto Rico. None of these is directly involved in this appeal. There is no substantial Federal question to support our jurisdiction. The amount of the taxes here at issue is less than two hundred dollars. The value in controversy is far less than the jurisdictional $5,'000. Our right to hear and determine the appeal rests upon the provisions contained in U.S.Code, Title 28, Section 225, 28 U.S.C.A. § 225, reading, so far as here applicable, as follows:
Ҥ 225. Appellate jurisdiction.
“(a) Review of final decisions. The circuit courts of appeal shall have appellate jurisdiction to review by appeal final decisions.
* * *
“Fourth. In the Supreme Courts of the Territory of Hawaii and of Puerto Rico, in all cases, civil or criminal, wherein the Constitution or a statute or treaty of the United States or any authority exercised thereunder is involved; in all other civil cases wherein the value in controversy, exclusive of interests and costs, exceeds $5,-000, and in all habeas corpus proceedings.”
The case at bar is not within the statute.
The appeal is dismissed for want of jurisdiction.
Question: What is the specific issue in the case within the general category of "economic activity and regulation - property disputes"?
A. disputes over real property (private)
B. eminent domain and disputes with government over real property
C. landlord - tenant disputes
D. government seizure of property - as part of enforcement of criminal statutes
E. government seizure of property - civil (e.g., for deliquent taxes, liens)
Answer:
|
songer_direct1
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal 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.
Russell SHEPPARD, Appellant, v. Barney CORNELIUS, trading as Barney Coal Company, and Leckie Smokeless Coal Company, Appellees. Ray E. RHODES, Appellant, v. Joe COSTA, trading as Joe Costa Coal Company, and Leckie Smokeless Coal Company, Appellees.
No. 8486.
United States Court of Appeals Fourth Circuit.
Argued March 28, 1962.
Decided April 26, 1962.
James K. Edmundson, Beckley, W. Va., for appellants.
Joseph M. Holt, Lewisburg, W. Va., and George Richardson, Jr., Bluefield, W. Va., for appellees.
Before SOBELOFF, Chief Judge, and HAYNSWORTH and BRYAN, Circuit Judges.
HAYNSWORTH, Circuit Judge.
In these proceedings, filed under § 16 of the Fair Labor Standards Act, the two plaintiffs assert a contractual claim to additional compensation by their employer. They had been paid at rates in excess of the minimum wages required by § 6 of the Act, but they contend that their employment was governed by the National Bituminous Coal Agreement of 1950, as amended, and they claim they should have been compensated at the higher rate specified in that agreement. They worked no more than forty hours in any week, so that the requirements of § 7 are not involved.
The District Court granted summary judgment for the defendants on the ground that there was no cause of action under the Fair Labor Standards Act, and no other basis of federal jurisdiction. We agree with the District Court.
By § 16(b) of the Fair Labor Standards Act, an employer may be held liable to an employee for unpaid wages due to have been paid under §§ 6 or 7 of the Act. The action may be maintained in any court of competent jurisdiction. Section 6 of the Act is violated, however, only if the actual rate paid is less than the minimum specified in that section. There is a violation of § 7 if compensation for hours worked in any week in excess of the maximum number is at a rate less than one and one-half the regular rate. Where overtime compensation is involved, of course, it is necessary to determine what the regular rate is, and, to do so, reference must be had to the rates prescribed in any applicable collective bargaining agreement. Payment of contract rates is not required by § 6, however, for hours worked in any week if they do not exceed the maximum fixed by § 7. If, therefore, the plaintiffs' employment was governed by the National Bituminous Coal Agreement of 1950, they may have an action founded upon the contract for unpaid wages, but they have not shown a violation of the Fair Labor Standards Act. Section 16 of that Act confers no jurisdiction upon this Court to adjudicate contractual claims for wages unless such adjudication is necessary to enforcement of the Act.
The plaintiffs seek to support the jurisdiction of the Court by reference to § 301 of the Labor Management Relations Act. That Act, of course, permits actions in the District Courts of the United States, without regard to the amount in controversy, by or against a labor organization representing employees, for violations of collective bargaining agreements. It is now settled that the United States District Courts have jurisdiction to enforce the arbitration provisions of a collective bargaining contract at the instance of the recognized representative of the employees when the relief sought is additional compensation or benefits due the employees generally under other provisions of the •contract. Earlier, however, the Supreme Court had held there was no jurisdiction of an action brought by the recognized representative of the employees when the relief sought was additional1 compensation to individual employees alleged to be due under the terms of the collective agreement. The Supreme Court found no congressional intention “ * * * to open the doors of the federal courts to a potential flood of grievances based upon an employer’s failure to comply with terms of a collective agreement relating to compensation, terms peculiar in the individual benefit which is their subject matter and which, when violated, give a cause of action to the individual employee. * * * ” Enforcement of such rights was to be left to the individual employees.
Here, the employees’ representative, if there is one, is not a party to these actions. The Mine Workers are not here contending that they have a contract with the employers which the employers have violated. Jurisdiction, under § 301 of the Labor Management Relations Act, to adjudicate claims by or against a labor organization representing employees does not extend to the claims of two employees asserting in their own names individual rights to additional compensation under a contract which they claim to be applicable.
Individual rights, individually asserted, though stemming from a collective employment agreement and solely dependent upon it, cannot be enforced under § 301 of the Labor Management Relations Act. If there is substance in the rights asserted by these employees, the rights may be enforced through traditional actions brought in the state courts. There is no federal jurisdiction to enforce them.
Affirmed.
. 29 U.S.C.A. § 216.
. 29 U.S.C.A. § 206.
. 29 U.S.C.A. § 207.
. Sheppard v. Cornelius et al., D.C.S.D.W. Va., 194 F.Supp. 823.
. If there was a violation of § 7 of the Act, and the court determined that the contract rate was the regular rate within the meaning of that Section, the court would not be limited to an award of compensation for the overtime hour's worked. It could adjudicate the entire controversy by requiring payment of the contract rate for the first forty hours worked in each week and thus dispose of the entire controversy. When the court has jurisdiction of a federal claim under § 7 of the Act, it may proceed to adjudicate the closely related nonfederal contract claim for additional compensation during the first forty hours worked in any week. Manosky v. Betklehem-Hingham Shipyard, Inc., 1 Cir., 177 F.2d 529, 534. When there has been- no violation of the Fair Labor Standards Act, however, § 16 of that Act confers no jurisdiction upon the court to award any relief.
. 29 U.S.C.A. § 185.
. Textile Workers Union of America v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972; United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424; Textile Workers Union of America v. Cone Mills Corp., 4 Cir., 268 F.2d 920.
. Association of Westinghouse Salaried Employees v. Westinghouse Electric Corp., 348 U.S. 437, 75 S.Ct. 489, 99 L.Ed. 510.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
|
songer_realresp
|
E
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine whether or not the formally listed respondents in the case are the "real parties." That is, are they the parties whose real interests are most directly at stake? (e.g., in some appeals of adverse habeas corpus petition decisions, the respondent is listed as the judge who denied the petition, but the real parties are the prisoner and the warden of the prison) (another example would be "Jones v A 1990 Rolls Royce" where Jones is a drug agent trying to seize a car which was transporting drugs - the real party would be the owner of the car). For cases in which an independent regulatory agency is the listed respondent, the following rule was adopted: If the agency initiated the action to enforce a federal rule or the agency was sued by a litigant contesting an agency action, then the agency was coded as a real party. However, if the agency initially only acted as a forum to settle a dispute between two other litigants, and the agency is only listed as a party because its ruling in that dispute is at issue, then the agency is considered not to be a real party. For example, if a union files an unfair labor practices charge against a corporation, the NLRB hears the dispute and rules for the union, and then the NLRB petitions the court of appeals for enforcement of its ruling in an appeal entitled "NLRB v Widget Manufacturing, INC." the NLRB would be coded as not a real party. Note that under these definitions, trustees are usually "real parties" and parents suing on behalf of their children and a spouse suing on behalf of their injured or dead spouse are also "real parties."
In re James P. STUMP, Petitioner.
Misc. No. 509.
United States Court of Appeals, First Circuit.
Oct. 29, 1971.
James P. Stump, pro se, on motion and brief in support thereof.
Courtland D. Perry, Asst. Atty. Gen., on brief in opposition to motion.
Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.
PER CURIAM.
Although the amount of money involved in this case is small, the principle is not, but is of some general importance.
Petitioner appellant, a state prisoner, formerly at large on parole, had his parole revoked under procedures that he alleges were unconstitutional. In the light of present judicial concern over parole practices generally we are not prepared to say that his 42 U.S.C. § 1983 complaint which he sought to file in the district court is frivolous on its face. Nor did the district court. That court denied him leave to proceed in forma pauperis, under 28 U.S.C. § 1915(a), on the ground that he had sufficient means, thereby requiring him to pay the $15 filing fee. Petitioner admits to having a cash credit with the warden of $78.00. He lists no outstanding debts. The warden has certified that his credit is $218. Rather than pay the fee, petitioner brings this petition for mandamus, seeking an order recognizing his right to proceed in forma pauperis.
We have previously, in other connections, held that a plaintiff, even though of small means, could reasonably be asked to some small degree to “put his money where his mouth is,” it being all too easy to file suits, even with sufficient pro forma allegations, if it costs nothing whatever to do so. We are not prepared to say that the district court’s requirement in this case was such an abuse of discretion as would call for mandamus on our part.
Nor would we say that the court may not inquire whether, if a prisoner has no cash credit at the moment of filing, he had disabled himself by a recent drawing on his account, and if so, for what purposes.
The petition is dismissed. This ruling is without prejudice to a renewed request in the district court for leave to proceed in forma pauperis in order to meet some larger described expense subsequently faced. Cf. Green v. Cotton Concentration Co., S.D.Tex., 1968, 294 F.Supp. 34.
Question: Are the formally listed respondents in the case the "real parties", that is, are they the parties whose real interests are most directly at stake?
A. both 1st and 2nd listed respondents are real parties (or only one respondent, and that respondent is a real party)
B. the 1st respondent is not a real party
C. the 2nd respondent is not a real party
D. neither the 1st nor the 2nd respondents are real parties
E. not ascertained
Answer:
|
songer_bank_app1
|
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.
Your task is to determine whether or not the first listed appellant is bankrupt. If there is no indication of whether or not the appellant is bankrupt, the appellant is presumed to be not bankrupt.
UNITED STATES of America v. Elroy F. CARTER, Appellant.
No. 22912.
United States Court of Appeals, District of Columbia Circuit.
Argued Jan. 16, 1970.
Decided June 5, 1970.
Mr. John A. Nevius, Washington, D.C. (appointed by this court), with whom Mr. William R. Stratton, Washington, D.C., was on the brief, for appellant.
Mr. James L. Lyons, Asst. U. S. Atty., with whom Messrs. Thomas A. Flannery, U. S. Atty., John A. Terry, and Richard A. Hibey, Asst. U. S. Attys., were on the brief, for appellee. Mr. Roger E. Zuckerman, Asst. U. S. Atty., also entered an appearance for appellee.
Before BAZELON, Chief Judge, TAMM, Circuit Judge, and JAMESON, Senior District Judge.
Sitting by designation pursuant to the provisions of Title 28, U.S.Code, Section 294(d).
PER CURIAM:
Found guilty after having waived his right to a jury trial on charges of both robbery (22 D.C.Code § 2901 (Supp. III 1970)) and assault with a dangerous weapon (22 D.C.Code § 502 (1967)), appellant contends before us that the trial court should have granted his motion for a judgment of acquittal upon the ground of mental illness. Without in any way challenging the allegations regarding his participation in the crimes charged, appellant, admittedly a narcotic addict, argues that the evidence of his narcotic addiction, when weighed with the testimony of two psychiatrists and a psychologist called by the appellant, should have compelled the trial judge to grant the motion for judgment of acquittal by reason of insanity.
I.
Prior to trial appellant was committed to St. Elizabeths Hospital, and in due course he was certified competent to stand trial. Three members of the staff at St. Elizabeths who had examined appellant during his confinement there testified at length regarding his mental condition, and he also called as a witness one of the police officers who had observed his condition shortly after his arrest. The trial judge, in ruling upon appellant’s motion for judgment of acquittal, first observed that had there been a jury in the case he would have been required to submit the question of appellant’s mental capacity to that body (Tr. 199) — obviously to determine as a matter of fact whether the evidence established appellant’s capacity beyond a reasonable doubt.
The trial judge thereafter summarized his findings and contusions as to the appellant’s guilt and mental condition. He found:
That the crime [s] charged were committed and that appellant participated in them. (Tr. 200.)
That appellant’s participation was to such an extent that he could be found guilty if there was no causal connection between the crime and the mental disease. (Tr. 200.)
That appellant is suffering from an anxiety reaction and was suffering from an anxiety reaction at the time the crime[s] were committed. (Tr. 199. )
That the anxiety reaction is recognized in psychiatric journals and bulletins as a mental disease. (Tr. 200.)
That the anxiety reaction from which appellant suffered was a “mild” or “moderate” one which permitted the appellant or any other person “in a like situation to exercise control over himself, to restrain himself, and otherwise to function in a normally acceptable way within society.” (Tr. 200. )
That appellant “is and was” a narcotic addict at the time the crime [s] were committed. (Tr. 200.)
That the record was unclear as to whether appellant used drugs to alleviate his anxiety reaction or for some other reason. (Tr. 201.)
That, whatever was the reason for appellant’s narcotic addition, the use of narcotics can under certain circumstances alleviate the anxiety which is the mental disease from which appellant suffered. (Tr. 201.)
That at the time of the perpetration of the crime [s] and although appellant was then suffering from “a mental disease * * * a moderate form of anxiety reaction,” he was nevertheless “a highly intelligent person, he was able to plan, he was able to execute” and he was “capable of refraining from doing the acts which constitute the crime[s].” (Tr. 201-202.)
That at the time appellant committed the crime [s] “he was not suffering any withdrawal symptoms so that there was no compulsive or impulsive situation which caused him to do the acts which constitute the crime [s],” and that “[h]e was able to plan and to execute it, and he was able to refrain [from doing it].” (Tr. 202.)
That the testimony indicated that appellant was at the time of the commission of the offense “high” on drugs, and that “a drug addict who is in such a condition is more capable of controlling his behavior than the average person since the anxiety reaction from which all of us suffer to some degree was completely blanketed by the effect of the drugs.” (Tr. 202.)
From these findings of fact the trial judge concluded that “the crime became one of convenience rather than a crime of necessity.” (Tr. 202.) He rejected, upon the basis of these findings and this conclusion, the theory of appellant that the crime was “tied” to the mental disease.
We have reviewed the entire record of the testimony offered upon the subject of appellant’s mental condition prior to and at the time of the commission of the offenses. With this testimony, as with almost all testimony, it is possible to select excerpts out of context and to argue forcefully in support of any conclusion which the advocate seeks; obviously the trial judge, acting also as the trier of facts in this case, is far more accurate in his appraisal of the credibility of the witnesses and the factual elements establishing truth than we, faced with a cold record, can possibly be. It is, of course, the sole responsibility of the trier of facts to evaluate the testimony of the witnesses and to determine what weight, if any, should be given to the testimony of each witness. This basic principle was forcefully stated by Chief Judge Bazelon in his recent opinion for this court in Adams v. United States, 134 U.S.App.D.C. 137, 142, 413 F.2d 411, 416 (1969) :
The decisions of this jurisdiction have made clear * * * our reluctance to require a directed acquittal for insanity. We have upon occasion refused to find that the Government has not borne its burden even when the evidence of mental illness was un-contradicted. * * * We have emphasized time and again that “in view of the complicated nature of the decision to be made — intertwining moral, legal and medical judgments — ” the insanity defense is peculiarly apt for resolution by the jury. As part of its task, “The jury is free to believe any reasonable ‘estimate’ even though different or contrary views may also be reasonable.”
The Adams decision also makes clear that the governing principles are identical when the court rather than the jury is the trier of fact. (Id.) We cannot say upon the basis of our review of the testimony that the above findings and conclusions are not reasonable or that they are not supported by substantial testimony. We therefore have no authority to ignore or overrule them.
II.
Appellant also challenges his sentence in this case upon the ground that the trial judge should have referred the ease to the Legal Psychiatric Service for presentence evaluation. We noted above that appellant was committed to St. Elizabeths Hospital for mental observation on November 21, 1967 and was reported competent to stand trial on February 20, 1968. These data were before the trial judge at the time of sentencing. During the trial, the presiding judge heard the testimony of several witnesses as to appellant’s mental condition. (Tr. 123-124, 129-154, 160-171, 179-196.) Some six weeks elapsed between the finding of guilt and the imposition of sentence, during which the probation office conducted an investigation and submitted a report which was before the trial judge when sentence was imposed, and which had been “gone over * * * rather carefully.” (Sent. Tr. 4.) In addition, the court considered a sentencing report prepared in appellant’s behalf by the Offender Rehabilitation Project (Sent. Tr. 4), and at the sentencing appellant made no request for further psychiatric examination. Upon the basis of this record we are unable and unwilling to conclude that the trial judge in any way abrogated or abused the discretion residing in him in the imposition of these sentences.
Affirmed.
Question: Is the first listed appellant bankrupt?
A. Yes
B. No
Answer:
|
songer_const1
|
101
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited provision of the U.S. Constitution in the headnotes to this case. Answer "0" if no constitutional provisions are cited. If one or more are cited, code the article or amendment to the constitution which is mentioned in the greatest number of headnotes. In case of a tie, code the first mentioned provision of those that are tied. If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
Michael Joseph FALLON, Appellant, v. A.L. LOCKHART, Director, Arkansas Department of Correction; Bill Clinton, Governor; W.H. Sargent, Warden, Cummins Unit; William M. Stricklin, Chairman; Jerry Gasaway; Robert Clark, ADC Publications Review Committee; James L. Mason, Chairman; Morris H. Dreher; David C. McClinton; Hezekiah D. Stewart, Jr., Rev.; Henry Oliver; Mike Gaines; Larry Morris, Arkansas Department of Correction Board, Appellees.
No. 90-2441.
United States Court of Appeals, Eighth Circuit.
Submitted Oct. 18, 1990.
Decided Nov. 26, 1990.
Michael Joseph Fallon, appellant pro se.
Appellees were not represented by counsel.
Before McMILLIAN, WOLLMAN and BEAM, Circuit Judges.
PER CURIAM.
Michael J. Fallon, an Arkansas inmate, appeals from the district court’s judgment dismissing as legally frivolous his 42 U.S.C. § 1983 action prior to service of process. Concluding that no error of law appears in the record, we affirm on the basis of the district court’s order, which adopted the magistrate’s findings and recommendation. See 8th Cir. Rule 47B.
. The Honorable Stephen M. Reasoner, United States District Judge for the Eastern District of Arkansas.
. The Honorable John F. Forster, Jr., United States Magistrate for the Eastern District of Arkansas.
Question: What is the most frequently cited provision of the U.S. Constitution in the headnotes to this case? If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
Answer:
|
songer_state
|
07
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the state or territory in which the case was first heard. If the case began in the federal district court, consider the state of that district court. If it is a habeas corpus case, consider the state of the state court that first heard the case. If the case originated in a federal administrative agency, answer "not applicable". Answer with the name of the state, or one of the following territories: District of Columbia, Puerto Rico, Virgin Islands, Panama Canal Zone, or "not applicable" or "not determined".
UNITED STATES of America, Plaintiff-Appellee, v. Kenneth C. FITZGIBBON, Defendant-Appellant.
No. 79-1281.
United States Court of Appeals, Tenth Circuit.
Submitted March 11, 1980.
Decided April 22, 1980.
Joseph F. Dolan, U. S. Atty., and Rod W. Snow, Asst. U. S. Atty., Denver, Colo., for plaintiff-appellee.
Richard S. Henderson, San Diego, Cal., for defendant-appellant.
Before SETH, Chief Judge, McWIL-LIAMS and BARRETT, Circuit Judges.
BARRETT, Circuit Judge.
Kenneth C. Fitzgibbon (Fitzgibbon) appeals from a judgment denying his motion to vacate sentence imposed pursuant to 28 U.S.C. § 2255.
Background
Fitzgibbon is presently incarcerated following his conviction by a jury of knowingly and willfully making a false statement in violation of 18 U.S.C. § 1001, in connection with carrying on his person foreign currency in excess of $5,000.00 through United States Customs. This court affirmed. See: United States v. Fitzgibbon, 576 F.2d 279 (10th Cir. 1978), cert. denied, 439 U.S. 910, 99 S.Ct. 279, 58 L.Ed.2d 256 (1978).
The facts, in summary, leading to Fitz-gibbon’s conviction and sentence in the United States District Court for the District of Colorado are: Fitzgibbon entered the United States on a flight from Canada and, upon arrival in Denver on March 31, 1977, he tendered to a U. S. Customs official Customs Form 6059-B entitled “Customs Declaration” — given to all incoming passengers; the form asks whether the person responding or anyone in his or her party is carrying over $5,000.00 in coin, currency or monetary instruments; Fitzgibbon checked a “no” response to that question, and, in addition, he gave a similar oral response to a Customs official following his arrival at Stapleton International Airport in Denver, Colorado; nothing on Form 6059-B advised Fitzgibbon of the reporting requirements of the Bank Secrecy Act of 1970, Pub.L. No. 91-508, 84 Stat. 1114 (1970) (codified in scattered sections of 12, 31 U.S.C.); Customs Officer Lockhart, after inquiring of Fitzgibbon orally, received a negative verbal response to the identical question posed on Form 6059-B relative to possession of currency in excess of $5,000.00, together with Fitzgibbon’s explanation that he had been in Canada overnight and had not acquired anything during the trip; Lockhart observed that Fitzgibbon was hesitant and nervous, and thus decided that a secondary examination was required; after Fitzgib-bon was taken to a separate room, currency in excess of $10,000.00 was found in Fitz-gibbon’s boots when he removed them; after receiving Miranda warnings, Fitzgibbon stated that he had acquired the money in Canada and that he did not want to “hassle” with Internal Revenue over it because a “portion” of it was not his, but rather belonged to an individual residing in New Jersey.
The indictment upon which Fitzgibbon was convicted and subsequently sentenced relied solely upon the charge that he knowingly and willfully made a false statement in completing Customs Form 6059-B relative to the currency inquiry.
Fitzgibbon’s direct appeal to this Court from his initial conviction was anchored to two primary contentions: First, that the indictment was defective because it did not specifically cite the federal regulation defining the term “monetary instruments” contained in the statute as including Canadian currency, and, second, that the Customs form referred to was a “baggage declaration” and, thus, not a proper form. These contentions were held to be without merit. See: United States v. Fitzgibbon, supra.
Following our affirmance of Fitzgibbon’s conviction, he was incarcerated in the federal prison at Lompoc, California. On November 13,1978, Fitzgibbon filed his motion pursuant to the federal habeas corpus statute, 28 U.S.C. § 2255, to vacate and set aside his sentence. The District Court denied Fitzgibbon’s motion in a Memorandum Opinion and Order.
On appeal, Fitzgibbon contends that the District Court erred in failing to grant his motion in that: (1) he was denied effective assistance of counsel at trial, inasmuch as his attorney failed to raise the so-called “exculpatory no” defense to the 18 U.S.C. § 1001 charge, and (2) the “farce, sham or mockery of justice” test should not have been applied in determining whether his effective assistance of counsel claim was valid.
I.
Fitzgibbon contends that, “Because of the ‘exculpatory no’ defense, the checking of the box ‘no’ and the oral ‘no’ to the inquiry as to whether a traveler brings more than $5,000.00 from abroad into the United States is outside the scope of the offense of making a false statement in violation of 18 U.S.C. Sec. 1001 and, standing alone, these facts could not bottom a finding beyond a reasonable doubt that Fitzgibbon had knowingly and willfully violated that Section as a matter of law. The failure to raise the defense [i. e., the “exculpatory no” defense], ipso facto, demonstrates lack of effective assistance of counsel.” [Opening brief of appellant at p. 8].
We first observe, as did the District Court [R., Vol. I, p. 66], that the “exculpatory no” defense was raised by counsel for Fitzgib-bon before the trial court in a motion to dismiss for failure to charge an offense; on appeal to this Court; and in a petition for writ of certiorari denied by the Supreme Court. Thus, a serious question exists as to whether Fitzgibbon is estopped from raising the same issue in this habeas corpus posture. We elect to reach the issue both because it was apparently not properly articulated in the prior proceedings and because it is an issue which has not been previously decided by this Court directly in the context of the facts of this case.
18 U.S.C. § 1001 provides that:
Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than five years, or both.
The “Exculpatory No” Exception
The predicate of the “exculpatory no” defense is simply that a negative response cannot serve as proof of the requisite knowledge and willfulness required to convict under 18 U.S.C. § 1001, absent affirmative steps taken by the government to make the reporting requirements of the law known.
A confession is a species of admissions. It is an acknowledgment in express words, by the accused in a criminal case, of the truth of the guilty fact charged or of some essential part of it. Exculpatory statements, denying guilt, are not confessions. Wigmore on Evidence, 3rd Ed., Vol. 3, § 821. A “confession” leaves nothing to be determined. It is a defendant’s acknowledgment of his intentional participation in the criminal act. An “admission”, on the other hand, constitutes a mere recital of facts which tend to establish guilt. Thus, an “exculpatory statement” has been described as a statement which tends to j'ustify, excuse or clear a defendant from alleged fault or guilt.
Fitzgibbon’s primary reliance on the “exculpatory no” defense is the decision rendered by the Fifth Circuit in United States v. Schnaiderman, 568 F.2d 1208 (5th Cir. 1978). The court there held that the “exculpatory no” defense applied in a prosecution almost identical to Fitzgibbon’s; Schnaiderman’s conviction was reversed. The facts in Schnaiderman are: Schnaider-man, a Venezuelan resident, arrived at Miami International Airport and entered the United States Customs line; he presented Customs Declaration Form 6059 — B, which he had not completed; the Customs Inspector directed Schnaiderman to complete and sign the form, which he did; when Schnaid-erman reappeared in the line, he handed the inspector Form 6059-B completed and signed; on the form, Schnaiderman checked the “no” answer to the inquiry relative to whether he was carrying cash or negotiable instruments in excess of $5,000.00; and, in addition, he orally responded “no” when Customs Inspector Randall verbally inquired as to whether he was carrying more than $5,000.00; when Schnaiderman passed on to Customs Inspector Deeley in the line, it was observed that Schnaiderman’s pockets were bulging and that he was nervous; Schnaiderman was asked to empty his pockets and thereupon $8,086.00 was found on his person; when Inspector Deeley inquired of Schnaiderman whether he understood United States currency laws, Schnaiderman responded that he was aware of the laws but that he was not going to spend the money in the United States.
Schnaiderman was charged with violating 18 U.S.C. §§ 1001 and 1058. On appeal, he asserted that there was insufficient evidence, as a matter of law, to prove that he intentionally violated these statutes. He argued that the “exculpatory no” exception applied to the negative response to the question posed on Form 6059-B and the identical oral response he made to Customs Inspector Randall. The Court agreed, reasoning that since 18 U.S.C. § 1001 requires “knowing” transportation and since 31 U.S.C. § 1058 requires a “willful” violation, there must be proof of the defendant’s knowledge of the reporting requirement and his specific intent to commit the crime. The Court cited to its prior opinion in United States v. Granda, 565 F.2d 922 (5th Cir. 1978) which followed United States v. San Juan, 545 F.2d 314 (2nd Cir. 1976).
In Granda, the Court, in disposing of the Government’s argument that the question on Form 6059-B relative to currency in excess of $5,000.00 put the traveler on notice that he must file the report on Form 4790, stated:
. The failure of the government to make known the requirements of the statute is fatal to their case. The isolated act of bringing money in excess of $5,000 into the country is not illegal or even immoral. What is required is merely a filing of the proper form. Proof of the requisite knowledge and willfulness, therefore, is almost impossible unless affirmative steps are taken by the government to make the laws’ requirements known. The government argues that the defendant was made aware of the reporting requirement by the question on the customs declaration form asking whether the defendant was carrying more than $5,000. We do not agree. The effect, if any, of this question is merely to cause the traveler to think that it is illegal to carry a large amount of money into the country. The question in no way tells the traveler it is perfectly legal to enter or leave the country with more than $5,000 but that a form reporting this fact must be completed. Nor does the untruthful answer of the question by the defendant prove beyond a reasonable doubt that she knew she was supposed to fill out a form. An untruthful answer could very easily be prompted by the question on the form which might cause the traveler who enters the country with more than $5,000 to think that his or her possession is by itself illegal, and who therefore answers untruthfully in order to attempt to avoid being caught breaking the law. We do not accept the government’s contention that the defendant’s falsification of her declaration, forms proves that she was aware of the separate reporting requirement.
565 F.2d at p. 926.
Thus, the Schnaiderman court came down with a rule preventing prosecution of a person, such as Fitzgibbon, who simply and only responded “no” to the currency inquiries in that the “exculpatory no” could not satisfy the requisite proof of knowledge and willful intent. Such could be satisfied if the defendant is specifically informed of the reporting requirements mandated in Granda prior to responding to the Bank Secrecy Act, supra, currency inquiries. Accord: United States v. Beer, 518 F.2d 168 (5th Cir. 1975); United States v. Bush, 503 F.2d 813 (5th Cir. 1974). See also: United States v. Chevoor, 526 F.2d 178 (1st Cir. 1975), cert. denied, 425 U.S. 935, 96 S.Ct. 1665, 48 L.Ed.2d 176 (1976) (negative responses given to FBI agents by a prospective grand jury witness).
The Legislative History of § 1001
The predecessor of § 1001 condemned only false claims designed to defraud the United States of its property. In 1934, the statute was amended “to protect the authorized functions of governmental departments and agencies from the perversion which might result from the deceptive practices described.” United States v. Gilliland, 312 U.S. 86, 93, 61 S.Ct. 518, 522, 85 L.Ed. 598 (1941). From that date forward, proof of pecuniary loss to the United States was no longer required. United States v. Beacon Brass Co., 344 U.S. 43, 73 S.Ct. 77, 97 L.Ed. 61 (1952) announced that there is no distinction between oral and written statements under this section, and United States v. Bramblett, 348 U.S. 503, 75 S.Ct. 504, 99 L.Ed. 594 (1955) recognized that 18 U.S.C. § 1001 must be accorded a broad and liberal interpretation in order to accommodate the congressional desire that its enactment lessen the likelihood of future false claims aimed at defrauding the Government “in the wake of a spate of frauds upon the Government.” In Bryson v. United States, 396 U.S. 64, 90 S.Ct. 355, 24 L.Ed.2d 264 (1969), the Supreme Court made it clear that the term “jurisdiction” in relation to federal agencies was not to be construed narrowly:
As another element of the offense, § 1001 requires that the false statement be made “in any matter within the jurisdiction of any department or agency of the United States.” . . . Because there is a valid legislative interest in protecting the integrity of official inquiries, see United States v. Bramblett . . . United States v. Gilliland ... we think the term “jurisdiction” should not be given a narrow or technical meaning for purposes of § 1001. ... A statutory basis for an agency’s request for information provides jurisdiction enough to punish fraudulent statements under § 1001.
396 U.S. at pp. 70-71, 90 S.Ct. at p. 359.
Thus, in accord with Bryson, supra, § 1001 has been interpreted broadly and liberally so as to apply to statements not required by law, not under oath, and not in writing made in the exercise of routine governmental administrative duties and which do not involve the possibility of self-incrimination. United States v. Bettenhau-sen, 499 F.2d 1223 (10th Cir. 1974); Knowles v. United States, 224 F.2d 168 (10th Cir. 1955). See also: United States v. Rose, 570 F.2d 1358 (9th Cir. 1978); United States v. Isaacs, 493 F.2d 1124 (7th Cir. 1973), cert. denied, 417 U.S. 976, 94 S.Ct. 3183, 41 L.Ed.2d 1146 (1974); United States v. Protch, 481 F.2d 647 (3rd Cir. 1973); United States v. Adler, 380 F.2d 917 (2nd Cir. 1967), cert. denied, 389 U.S. 1006, 88 S.Ct. 561, 19 L.Ed.2d 602 (1968); United States v. McCue, 301 F.2d 452 (2nd Cir. 1962), cert. denied, 370 U.S. 939, 82 S.Ct. 1586, 8 L.Ed.2d 808 (1962).
Any doubt concerning the need of the United States Customs officials for the “currency” information sought from Fitz-gibbon within the administrative “jurisdiction” of the agency is dispelled by this language in California Bankers Assn. v. Shultz, 416 U.S. 21, 94 S.Ct. 1494, 39 L.Ed.2d 812 (1974):
Chapter 3 of Title II of the Act and the regulations promulgated thereunder generally require persons to report the transportation of monetary instruments into or out of the United States, or receipts of such instruments in the United States from places outside the United States, if the transportation or receipt involves instruments of a value greater than $5,000. Chapter 4 of Title II of the Act and the implementing regulations generally require United States citizens, residents, and businessmen to file reports of their relationships with foreign financial institutions. The legislative history of the foreign-transaction reporting provisions indicates that the Congress was concerned with the circumvention of United States regulatory, tax, and criminal laws which United States citizens and residents were accomplishing through the medium of secret foreign bank transactions. S.Rep.No.91-1139, supra, at 7; H.R.Rep.No.91-975, supra, at 13.
Section 231 of the Act, 31 U.S.C. § 1101, requires anyone connected with the transaction to report, in the manner prescribed by the Secretary, the transportation into or out of the country of monetary instruments exceeding $5,000 on any one occasion. As provided by the Secretary’s regulations, the report must include information as to the amount of the instrument, the date of receipt, the form of instrument, and the person from whom it was received. See 31 CFR §§ 103.23, 103.25. The regulations exempt various classes of persons from this reporting requirement, including banks, brokers or other dealers in securities, common carriers, and others engaged in the business of transporting currency for banks. 31 CFR § 103.23(c). Monetary instruments which are transported without the filing of a required report, or with a materially erroneous report, are subject to forfeiture under § 232 of the Act, 31 U.S.C. § 1102; a person who has failed to file the required report or who has filed a false report is subject to civil penalties under §§ 207 and 233, 31 U.S.C. §§ 1056 and 1103, as well as criminal penalties under §§ 209 and 210, 31 U.S.C. §§ 1058 and 1059.
416 U.S. at pp. 35-36, 94 S.Ct. at pp. 1504-1505. [Footnotes omitted].
Our Disposition
The elements of the offense identified in 18 U.S.C. § 1001, as amended, are 1) that the defendant made a statement, 2) that the statement was false and the defendant knew it was false, 3) the statement was made knowingly and willfully, 4) the statement was within the jurisdiction of the federal agency, and 5) the statement was material. We hold that these elements were established in Fitzgibbon’s trial and that the “exculpatory no” defense cannot prevail.
In United States v. Rose, 570 F.2d 1358 (9th Cir. 1978), the defendant’s conviction on two counts of violating 18 U.S.C. § 1001 was affirmed under facts strikingly similar to those involved in the case at bar. In Rose, the appellant (Rose) entered a United States Customs inspection border site at Blaine, Washington, adjacent to Canada. Rose gave false responses to a routine series of questions posed by the United States Customs agents. When asked what merchandise he was importing subject to declaration, Rose responded that he had only two cameras to declare when in fact he knew he was also carrying ergatomine tartrate (an alpha adrenergic blocking agent), a dutiable item he acquired abroad. In affirming the conviction of Rose grounded to the 18 U.S.C. § 1001 counts, the court rejected the “exculpatory no” defense:
Although the statement in this case was oral, unsworn and unrelated to any monetary claim against the United States, the declarant was claiming the privilege of entry, and his statement potentially impaired the function of the Customs Service.
The border agent testified that persons coming from overseas were referred automatically to a more rigorous inspection than those who had stayed in Canada. Instead of referring Rose for secondary inspection, the agent testified that he had been on the verge of letting him proceed. Although in this factual situation contraband was not allowed into the United States by Rose’s statement, the statement had the “intrinsic” capability of bringing it about. United States v. Quirk, 167 F.Supp. 462, 464 (E.D.Pa.1958), aff’d 266 F.2d 26 (3rd Cir. 1959), quoted in Brando w v. United States, 268 F.2d 559, 565 (9th Cir. 1959).
United States v. Bush, 503 F.2d 813 (5th Cir. 1974), relied on by appellant, is distinguishable. In that case, Bush was asked by an agent of the Internal Revenue Service whether he had committed a suspected misdeed. He answered with an untruthful “exculpatory ‘no’.” 503 F.2d at 819. Relying on its understanding of the congressional intent and influenced by Fifth Amendment concerns, the court reversed the conviction. It found that the “exculpatory no” fit within an investigatory exception to § 1001.
In our case, the border agent’s inquiries were a routine exercise of his administrative responsibility. Moreover, a truthful answer to the inquiries would not have involved self-incrimination. We conclude that the false statement appellant made to the agent at the border crossing was material within the meaning of § 1001.
570 F.2d at p. 1364.
The conflict between the Ninth Circuit’s holding in United States v. Rose, supra, and the Fifth Circuit’s embrace of the “exculpatory no” defense is well delineated, we believe, by this language stated in United States v. London, 550 F.2d 206 (5th Cir. 1977):
Section 1001 contains three operative clauses. The third concerns one who makes false writings, the second one who makes false statements or representations, and the first one who “falsifies, conceals or covers up by any trick, scheme, or device . . . ” The phrase “by trick, scheme, or device” obviously modifies all three preceding verbs. Had their intentions been otherwise the authors of the statute would have placed the non-modified verbs directly after the “by trick, scheme, or device” phrase. ******
This construction of the statute is supported by policy considerations. In construing a statute that will often come dangerously close to trenching on fifth amendment rights, one ought not punish concealments or false statements that fall short of constituting affirmative acts . The requirement of an affirmative act is implied in the second clause of § 1001 by the statute’s proscription of false statements . . . Unless full effect is given to the “trick, scheme, or device” phrase in the first clause, however, it would be possible to construe the terms “conceal or cover up” to embrace mere nondisclosure.
We have held, in enunciating the so-called “exculpatory no” doctrine, that essentially negative answers to questions propounded by investigating government officials are not statements within the meaning of the second clause of § 1001 in the absence of some affirmative, aggressive, or overt falsehood on the defendant’s part.
550 F.2d at pp. 212-213.
We agree with the rationale set forth in United States v. Rose, supra. Such is compatible with this broad-sweeping language in Bryson v. United States, supra:
A citizen may decline to answer the question, or answer it honestly, but he cannot with impunity knowingly and willfully answer with a falsehood.
396 U.S. at p. 72, 90 S.Ct. at p. 360.
In United States v. Fitzgibbon, supra, we implicitly held that the “exculpatory no” defense was not available to Fitzgibbon in light of the fact that when his flight arrived in Denver, he and all other incoming passengers were greeted in the Customs inspection area of the airport with prominent posters on the walls advising them that incoming travelers were obligated to report currency or monetary instruments exceeding $5,000.00 in value. In addition, we deem it important to observe that Customs Form 6059-B contained a clear and unequivocal instruction immediately above the signature space that all “. . oral and written statements which I have made are true, correct and complete.” In addition, the form stated, in bold print, that “False Statements Made To A Customs Officer Are Punishable by Law”.
In our view, the facts of the instant case do not “fit the mold” of the “exculpatory no” exception applied by the Fifth Circuit. The sole charge was based on the false statement Fitzgibbon submitted on the face of the Customs form he completed, signed and delivered. Under the statute, the submission of the form to Fitzgibbon while on board the flight was exclusively administrative in nature. There was no indication of criminal investigation or police coercion. Fitzgibbon clearly understood that completion of the form was required prior to entry into the United States, and that the false statements he made were designed to conceal information relevant to the administrative process:
He made a statement from which it could reasonably be inferred he knew of the requirement when he said he wanted to avoid a hassle with the United States Internal Revenue Service. Further, the fact he carried the money in his boots rather than in his wallet or in his pockets supports the inference he was attempting to hide it. His possession of a false driver’s license, and his “no” answers to repeated questions about whether he acquired anything in Canada and whether he had money would support the conclusion he knew of the reporting requirement.
576 F.2d 279 at p. 284.
It is important, in our view, to note that the question posed on the Customs declaration form, and orally asked by Customs Inspector Lockhart, could not have been incriminating, simply because it is not a crime to transport more than $5,000.00 into the United States. Rather, 31 U.S.C. § 1058 declares it a crime if a person willfully violates the provisions of Chapter 21 entitled “Reports of Currency and Foreign Transactions”.
Critical to a determination that a statement falls within the protection of the “exculpatory no” exception is a finding of possible self-incrimination. The rationale supporting this view is that a person cannot be compelled to be a witness against himself. In the case at bar, self-incrimination was clearly not implicated. Fitzgibbon could not have been held criminally liable under the subject statute had he truthfully reported the Canadian currency in his possession in excess of $5,000.00. The criminal sanction applies only if a person knowingly and willfully fails to report currency in excess of $5,000.00. Fitzgibbon could not have suffered any penalty or sanction at the hands of the Customs officials had he truthfully reported the currency in his possession. The knowing, false representation made by Fitzgibbon obstructed a statutorily mandated administrative function of a federal governmental agency. This is not a case where Fitzgibbon was “on the horns” of a dilemma between the truth and a lie. On the state of this record, it is pure speculation whether Fitzgibbon would have subjected himself to any criminal sanctions beyond those he incurred by violating the provisions of 18 U.S.C. § 1001.
II.
In light of that which we have heretofore written, we hold that Fitzgibbon’s trial counsel afforded him adequate, effective, competent representation under any recognized standard. See: Gillihan v. Rodriquez, 551 F.2d 1182 (10th Cir. 1977) (the “sham and mockery” test), cert. denied, 434 U.S. 845, 98 S.Ct. 148, 54 L.Ed.2d 111 (1977); Dyer v. Crisp, 613 F.2d 275 (10th Cir. 1980— En Banc) (exercise of “skill, judgment and diligence” of reasonably competent defense attorney).
WE AFFIRM.
Question: In what state or territory was the case first heard?
01. not
02. Alabama
03. Alaska
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. Florida
11. Georgia
12. Hawaii
13. Idaho
14. Illinois
15. Indiana
16. Iowa
17. Kansas
18. Kentucky
19. Louisiana
20. Maine
21. Maryland
22. Massachussets
23. Michigan
24. Minnesota
25. Mississippi
26. Missouri
27. Montana
28. Nebraska
29. Nevada
30. New
31. New
32. New
33. New
34. North
35. North
36. Ohio
37. Oklahoma
38. Oregon
39. Pennsylvania
40. Rhode
41. South
42. South
43. Tennessee
44. Texas
45. Utah
46. Vermont
47. Virginia
48. Washington
49. West
50. Wisconsin
51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer:
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songer_bank_r1
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B
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine whether or not the first listed respondent is bankrupt. If there is no indication of whether or not the respondent is bankrupt, the respondent is presumed to be not bankrupt.
John M. ADAMS, Jr., et al., Appellants, v. MADISON REALTY & DEVELOPMENT, Inc., a corporation; Consolidated Mortgage Company, a corporation; American Funding Limited, a partnership; First American Services, Inc., a corporation; John Peter Galanis and Chandra Galanis; Jay Botchman; Tri-County Savings and Loan Association, a state chartered savings and loan association; Community Federal Savings and Loan Association, a federal savings and loan association; First Northern Cooperative Bank, a state chartered mutual savings bank; Empire of America Federal Savings Bank, a federally chartered savings bank; Empire of America Federal Savings Bank Deland Florida, a federally chartered savings bank; Barclays/American Businesscredit, Inc., a corporation; Public Loqan Company, Inc., a corporation; Morris Cofman; MXC Holdings, Ltd., a corporation; Arthur Mason; Leff & Mason, a partnership; and Friedman & Shaftan, P.C. a professional corporation, Federal Savings and Loan Insurance Corporation, as receiver for Tri-County Savings and Loan Association.
No. 88-5111.
United States Court of Appeals, Third Circuit.
Submitted Pursuant To Third Circuit Rule 12(6) May 10, 1988.
Decided July 22, 1988.
Rehearing and Rehearing In Banc Denied Aug. 29, 1988.
Kenneth N. Laptook, Kimmelman, Wolff & Samson, Roseland, N.J., Marcus E. Cra-han, Jr., Crahan, Javelera, Ver Halen & Aull, Los Angeles, Cal., for appellants.
Mark F. Hughes, Jr., Robinson, Wayne, Levin, Riccio & LaSala, Newark, N.J., Richard E. Moot, Moot & Sprague, Buffalo, N.Y., Robert B. Fiske, Jr., Davis Polk & Wardwell, New York City, for appellee Empire of America Federal Sav. Bank.
Before GIBBONS, Chief Judge, GREENBERG and WEIS, Circuit Judges.
OPINION OF THE COURT
WEIS, Circuit Judge.
The district court entered summary judgments in favor of the purported indorsee of promissory notes and certified a controlling question of law pursuant to 28 U.S.C. § 1292(b). The issue presented on this appeal is whether a good faith purchaser is a holder in due course of promissory notes containing indorsements on separate sheets of paper loosely inserted within each note. We answer in the negative and will vacate the judgments.
The saga of this litigation is extensive and quite complicated. However, the question certified to us is narrow, and the essential facts are easily summarized.
Plaintiffs executed promissory notes in payment for investments in Madison Partnerships, a series of tax shelters formed to acquire and operate residential real estate properties. Each of the promissory notes were made payable to one of three originator banks: Tri-County Savings & Loan Association of New Jersey, Community Federal Savings & Loan Association of Connecticut, and First Northern Cooperative Bank of New Hampshire. After a series of transfers, the notes came into the possession of defendant Empire of America Federal Savings Bank.
Charging fraud in connection with the investment scheme, plaintiffs filed suit against numerous defendants who allegedly participated in the wrongdoing. Also named as a defendant was Empire, from whom plaintiffs sought rescission of the notes now in the bank’s possession. The discrete issue before us is the legal effect of purported indorsements not physically attached to the notes.
Empire purchased the thirty-five promissory notes challenged in this appeal for $19.5 million in March 1985 as part of a bulk acquisition of negotiable instruments. According to the bank’s affidavits, the practice of acquiring notes through this “secondary market” is an established commercial banking practice. It allows smaller lenders to preserve liquidity and diversify risks, while permitting larger institutions to buy notes at discounted prices.
In November 1984, Consolidated Mortgage Company sold to Empire for $6.1 million a package of 116 notes executed by investors in conjunction with the Madison Partnership venture. In early 1985, Putnam Funding Company offered Empire a similar batch of notes which included the 35 instruments executed by plaintiffs. This collection consisted of 267 notes tendered at a purchase price of $19.5 million dollars.
On March 4, 1985 an Empire representative conducted a four-hour random review of 52 of the 267 loan files associated with the proposed Putnam transaction. He examined the supporting file material, including loan applications, credit reports, disbursal sheets, and current income tax 1040 forms. The documents indicated that the makers of the notes had substantial means, with individual net worths generally in excess of $500,000 and adjusted annual gross incomes usually greater than $100,000. None of the notes was found to be delinquent or beyond maturity.
Empire’s representative could not recall whether he had inspected the notes. He did report, however, that he was satisfied with the financial condition of both borrowers and servicer and would recommend the purchase. On the following day, Empire’s management loan committee approved the transaction and wired a transfer of $19.54 million dollars to Putnam.
On March 20, 1985 an examiner from the Federal Home Loan Bank Board met with Empire’s internal auditors to inquire whether the bank had any contact with certain persons then under investigation for conduct unrelated to these purchases. The examiner’s list included some of the individuals who had negotiated the sale of the Consolidated and Putnam notes to Empire. The district judge found that the examiner’s report, shown to Empire personnel, did not contain specific allegations of fraud and had no apparent connection to the notes under discussion.
Plaintiffs allege that both Consolidated and Putnam participated in the asserted fraud. No evidence of record, however, demonstrates that Empire played any role in the original investment proposals.
On March 28, 1985 Empire’s Board of Directors ratified the purchase. Twelve days later, the original notes were sent to Empire.
The promissory notes are each two-page, fold-over documents. The front page names the originator bank and sets forth the repayment schedule. The reverse side contains printed agreement conditions and signature lines. Inserted loosely within the fold, lacking any physical attachment to the note, are two sheets of paper containing purported indorsements, the last of which is the transfer from Putnam to Empire. Each note contains a provision directing that its terms be interpreted under the law of the state in which the originator bank is located — New Hampshire, Connecticut, and New Jersey, respectively.
The district court acknowledged that the use of a separate, unattached sheet of paper to carry the indorsements failed to comply with Uniform Commercial Code section 3-202(2), which reads: “An indorsement must be written by or on behalf of the holder and on the instrument or on a paper so firmly affixed thereto as to become a part thereof.” Conn.Gen.Stat.Ann. § 42a-3-202(2) (West 1987); N.H.Rev.Stat. Ann. § 382-A:3-202(2) (1961); N.J.Stat. Ann. § 12A:3-202(2) (West 1962).
The court commented that the object of this statutory provision was “to protect subsequent purchasers from the risk that the present holder or a previous holder has negotiated the instrument to someone outside the apparent chain of title through a separate document.” In view of this purpose, the court reasoned, even if the indor-see had been exposed to some risks, “that is no reason to absolve the notemakers, who are in no way injured by the use of an unattached indorsement, of their obligations.”
The court observed that the makers of the notes in this case were not threatened with double liability because there “is no reasonable basis to fear that there are other indorsees to the notes in question other than Empire.” Failure to properly attach the indorsements, therefore, was excused as “hypertechnical.” Nevertheless, the court conceded that the issue was a “close one” which justified certification under 28 U.S.C. § 1292(b).
On appeal, plaintiffs contend that the district court’s ruling runs contrary to explicit language in the Uniform Commercial Code and decisional precedents. Admitting that the affixation requirement may be technical, plaintiffs assert that the privileged status of holder in due course is also a technical creation bestowed only after strict compliance with the statutory prerequisites.
Defendant argues that it is the rightful owner of the notes, that it purchased them for value, and that the unambiguous in-dorsements were intended by the parties to negotiate the notes. The bank insists that the “purely clerical omission” of proper affixation distinguishes this case from others in which collateral documents such as assignments, ■ guarantees, or mortgages were denied effect as indorsements.
I.
Whether a separate, unattached indorsement page can constitute a proper indorsement of a negotiable instrument is a question of state law. The parties concede there is no controlling precedent in any of the three relevant jurisdictions, but each state has adopted the Uniform Commercial Code. The briefs have not cited any case recounting facts close to those presented here, nor has our independent research uncovered any such authority. We are left, therefore, largely to the wording of the Code itself.
Article 3 of the Uniform Commercial Code incorporated many portions of its predecessor, the Uniform Negotiable Instruments Law (NIL), drafted in 1896 by the National Conference of Commissioners on Uniform State Laws. By 1924, the NIL had been adopted in every state. See 2 F. Hart & W. Willier, Commercial Paper Under the Uniform Commercial Code § 1.06, at 1-25 to -26 (1988). When it was transplanted into the 1956 draft of the Uniform Commercial Code, the indorsements provision was altered in only a minor respect. Section 31 of the NIL had specified that a proper indorsement “must be written on the instrument itself or upon a paper, attached thereto.” The Code substituted the words “so firmly affixed as to become a part thereof” for the phrase “upon a paper attached thereto.”
Indorsement constitutes one step in the process of establishing the highly advantageous position of holder in due course, a status which cuts off certain defenses of previous parties to the instrument and which offers a procedural means for obtaining a judgment on the note promptly and inexpensively. See U.C.C. § 3-305. As a condition for conferring this privileged position, the Code not unreasonably imposes a number of prerequisites.
A holder in due course must take the instrument for value, in good faith, and without notice that it is overdue, that it has been dishonored, or that a claim or defense to it exists on the part of any person. See U.C.C. § 3-302(1). But preliminarily, a person seeking to become a holder in due course must satisfy the threshold requirements for becoming a “holder,” the critical issue on this appeal.
The Code defines a holder as one “who is in possession of ... an instrument ... drawn, issued or indorsed to him or to his order.” U.C.C. § 1-201(20). Mere ownership or possession of a note is insufficient to qualify an individual as a “holder.” The instrument must be obtained through a process the Code terms “negotiation,” defined as “the transfer of an instrument in such form that the transferee becomes a holder.” U.C.C. § 3-202(1). If the instrument is payable to order — as is the case with the notes here — negotiation is accomplished “by delivery with any necessary indorsement.” Id.
In explaining the requirement that the indorsement be on or firmly affixed to the instrument, the Official Comment states that the Code “follows decisions holding that a purported indorsement on a mortgage or other separate paper pinned or clipped to an instrument is not sufficient for negotiation. The indorsement must be on the instrument itself or on a paper intended for the purpose which is so firmly affixed to the instrument as to become an extension or part of it. Such a paper is called an allonge.” U.C.C. § 3-202 Official Code Comment (3).
We may assume, without actually deciding, that the loose indorsement sheets accompanying Empire’s notes would have been valid allonges had they, been stapled or glued to the notes themselves. Cf. All American Finance Co. v. Pugh Shows, Inc., 30 Ohio St.3d 130, 507 N.E.2d 1134, 1136-37 n. 3 (1987) (collecting cases showing disagreement among courts on how firmly indorsements must be affixed). Nevertheless, the fact remains that the in-dorsement sheets here were not physically attached to the instruments in any way, and thus patently fail to comply with the explicit Code prerequisite. Conceding the requirement’s formalistic nature, we explore the arguments in support of its enforcement here.
The Code’s requirement that an indorsement be “firmly affixed” to its instrument is a settled feature of commercial law, adopted verbatim by every American state, the District of Columbia, and the Virgin Islands. See 5 R. Anderson, Uniform Commercial Code § 3-202:2, at 416 (3d ed. 1984) (citing codifications). With a unanimity unusual in decisional law, the directive has been faithfully observed.
The historical origins of the provision have been chronicled to the days of the Law Merchant. See Pribus v. Bush, 118 Cal.App.3d 1003, 173 Cal.Rptr. 747, 749 (1981). The practice of multiple indorse-ments which accompanied the growth in commerce eventually led to acceptance of the use of allonges. See id.; Estrada v. River Oaks Bank & Trust Co., 550 S.W.2d 719, 725 (Tex.Civ.App.—Houston [14th Dist.] 1977, writ ref’d n.r.e.). Even today, however, numerous jurisdictions permit al-longes only where, because of multiple in-dorsements, no additional space for signatures remains on the negotiable instrument. See, e.g., Pribus, 173 Cal.Rptr. at 751; Tallahassee Bank & Trust Co. v. Raines, 125 Ga.App. 263, 187 S.E.2d 320, 321 (1972). But see Crosby v. Roub, 16 Wis. 616, 626-27 (1863) (allonge permitted even where space remains on note).
When the drafters of the Uniform Commercial Code replaced the term “attached” in the NIL with the phrase “firmly affixed,” they intended to make the use of allonges more difficult. See Hills v. Gardiner Savings Institution, 309 A.2d 877, 880-81 (Me.1973); Estrada, 550 S.W.2d at 728; 5 Anderson, supra, § 3-202:05. Courts have advanced two justifications for the firmly-affixed requirement. The California Court of Appeals reasoned that the provision serves to prevent fraud, remarking that a signature innocently placed upon an innocuous sheet of paper could be fraudulently-attached to a negotiable instrument in order to simulate an indorsement. Pribus, 173 Cal.Rptr. at 750. But cf. Lamson v. Commercial Credit Corp., 187 Colo. 382, 531 P.2d 966, 968 (1975) (allonge consisting of two legal sheets stapled to two small checks held valid because signing on checks themselves would have been impossible; “stapling is the modern equivalent of gluing or pasting”).
The affixation requirement has also been cited for its utility in preserving a traceable chain of title, thus furthering the Code’s goal of free and unimpeded negotiability of instruments. Nearly a century ago, the Supreme Court of Georgia declared it “indispensably necessary” that negotiable instruments “should carry within them the indicia by which their ownership is to be determined; otherwise, their value as a circulating medium would be largely curtailed, if not entirely destroyed.” Haug v. Riley, 101 Ga. 372, 29 S.E. 44, 46 (1897). See also Crosby, 16 Wis. at 627 (permanently attached indorsements to instrument “travel with it wherever it might go”). Chancellor Hawkland writes that it would be “unreasonable to impose upon the indor-see the risk that the present holder or a prior holder had negotiated the instrument to someone not in the apparent chain of title by virtue of a separate document.” 4 W. Hawkland & L. Lawrence, Uniform Commercial Code Series § 3-202:05 (1984).
Defendant here argues that these considerations warrant enforcement of the requirement only against those persons who acquire the notes after issuance, not against the makers who undertook to repay the amount loaned by the bank. This argument overlooks the rights which pass to an indorsee. Through effective negotiation, the indorsee becomes a holder, acquiring the authority to discharge the obligation on the note by accepting payment. See U.C.C. § 3-301. Until the maker pays a holder, he will not be discharged from his obligation. Thus, “if the primary party pays an instrument bearing an improper indorsement, he will not have paid a holder, and the true owner of the instrument may recover against the primary party.” See 1 R. Aldermann, A Transactional Guide to the Uniform Commercial Code 633 n. 294 (2d ed. 1983).
From the maker’s standpoint, therefore, it becomes essential to establish that the person who demands payment of a negotiable note, or to whom payment is made, is the duly qualified holder. Otherwise, the obligor is exposed to the risk of double payment, or at least to the expense of litigation incurred to prevent duplicative satisfaction of the instrument. These risks provide makers with a recognizable interest in demanding proof of the chain of title. Consequently, plaintiffs here, as makers of the notes, may properly press defendant to establish its holder status.
Plaintiffs have another reason for insisting on compliance with the Code’s indorsement requirements. They allege their notes were procured by fraud and they wish to assert that as a defense to payment. As the Code provisions have been interpreted, however, the defense of fraud in the inducement is not available against holders in due course. See 6 Anderson, supra, § 3-305:62. Thus, if Empire successfully establishes its status as a holder in due course, it will be able to expeditiously fend off the plaintiffs’ fraud allegations and obtain a judgment on the notes.
Notwithstanding these concerns, defendant maintains that mere “clerical oversight” should not obscure its right to recover as a holder in due course on notes it purchased for value. There is some equitable appeal to this line of reasoning, but overriding considerations militate against it.
We must be mindful of the limitations imposed on federal courts sitting in diversity. Where an appeal to this court challenges an application of state law, we are not free to indulge our preferences as to how the common law should best develop. Falcone v. Columbia Pictures Indus., 805 F.2d 115, 118 (3d Cir.1986). When, as here, no controlling state case law guides our consideration, we are left to the “unenviable task” of predicting how the highest courts of Connecticut, New Hampshire, and New Jersey would rule were the question now before them — a review decried as “omniscient in a way that is not possible for mortals.” Santiago v. Johnson Mach. & Press Corp., 834 F.2d 84, 84 (3d Cir.1987).
Fortunately, our review in this case does not demand such clairvoyance. When interpreting the attachment requirement, the courts “have been of one mind” that the lack of an indorsing signature on the instrument itself, or on a sheet “firmly affixed” to the instrument, is fatal to holdership. See, e.g., Bailey v. Mills, 257 Ala. 239, 58 So.2d 446, 447 (1952); Lopez v. Puzina, 239 Cal.App.2d 708, 49 Cal.Rptr. 122, 124-25 (1966); Lamson, 531 P.2d at 968; Shepherd Mall State Bank v. Johnson, 603 P.2d 1115, 1118 (Okla.1979); Estrada, 550 S.W.2d at 725; Crossland Sav. Bank FSB v. Constant, 737 S.W.2d 19 (Tex.Ct.App.—Corpus Christi 1987); Crosby, 16 Wis. at 627. As one treatise states, “[t]he unanimity of the courts in cases where the signature is separate from the instrument can be explained by a judicial perception that it is sound policy to require the indorsement to be on the instrument.” R. Hillman, J. McDonnell, & S. Nickles, Common Law and Equity Under the Uniform Commercial Code ¶ 11.02[l][b], at 11-18 (1985).
Where the state courts, the scholarly commentators, and the unambiguous language of the statute all admit of but one result, only an overwhelming equitable ground would warrant a departure from what is unquestionably settled law. Absent such a circumstance, the Code’s express goal of national uniformity must prevail. See U.C.C. § 1-102(2).
One premise underlying the defendant’s position on appeal is that plaintiff makers, once they give up possession of the instruments, lack standing to contest subsequent developments occurring in the course of later negotiations. Yet, as we have seen, the obligors have a very real interest in determining whether the person demanding payment on the note is actually a holder.
The defendant’s attempt to distinguish the district court’s holding from the great weight of contrary precedent is similarly unpersuasive. Defendant argues that its indorsement sheets serve no collateral purpose other than to negotiate the notes, and that section 3-202(2) was intended only to prevent giving legal effect to purported indorsements contained in collateral purpose documents — such as mortgages and guaranties. This contention has been rejected by courts that have denied holder status to transferees relying on plain, unattached indorsement sheets. See Pribus, 173 Cal.Rptr. at 748; Duxbury v. Roberts, 388 Mass. 385, 446 N.E.2d 401, 403 (1983). Moreover, the same goals prompting adoption of the provision — prevention of fraud and ensuring an attached chain of title record — are equally served in applying the requirement here.
Empire is not in a strong position to justify equitable relaxation of a settled formality in the Code. That longstanding provision was enacted, after all, for the benefit of parties in Empire’s position, commercial sophisticates that trade in the secondary market for negotiable instruments. The provision is not ambiguous, nor can Empire assert excusable ignorance of an unusual local technicality, given the rule’s universal application. The flaws in the notes should have been perceived quickly and readily cured. Instead, the record suggests that the failure to observe that Code formality was caused by nothing short of sheer carelessness.
Financial institutions, noted for insisting on their customers’ compliance with numerous ritualistic formalities, are not sympathetic petitioners in urging relaxation of an elementary business practice. It is a tenet of commercial law that “[hjoldership and the potential for becoming holders in due course should only be accorded to transferees that observe the historic protocol.” Hillman, McDonnell, & Nickles, supra, at ¶ 11.02[l][b], at 11-17. In sum, we are not persuaded that defendant presents a credible case for nonapplication of the plain wording of the state statutes.
II.
Denying the bank holder in due course status does not necessarily relegate it to simple contract remedies, claiming payment as a mere assignee subject to the plaintiffs’ fraud defenses. Even though it is not entitled to the abbreviated proof granted to a holder in due course, Empire perhaps may benefit from the Code’s shelter provision, succeeding to the rights of a holder in due course albeit not entitled to that status itself.
Section 3-201(1) of the Code embodies what has come to be known as the “shelter” or “umbrella” principle. It provides that transfer of an instrument will vest in the transferee “such rights as the transfer- or has therein, except that a transferee who has himself been a party to any fraud or illegality affecting the instrument or who as a prior holder had notice of a defense or claim against it cannot improve his position by taking from a later holder in due course.” Ct.Gen.Stat.Ann. § 42a-3-201(l) (West 1987); N.H.Rev.Stat. Ann. § 382-A:3-201(l) (1961); N.J.Stat. Ann. § 12A:3-201(1) (West 1962).
This section extends the accepted rule in commercial law that a transferor assigns to his transferee all the rights he had in the transferred note. U.C.C. § 3-201 Official Code Comment (1). The shelter principle permits a transferee, who cannot satisfy the formal prerequisites of negotiation, to step into the shoes of his transferor, succeeding to the same rights and liabilities as his predecessor. 2 Hart & Willier, supra, § 12.02[2j.
If the transferor was a holder in due course, the transferee succeeds to the rights of a holder in due course, although— because the purported negotiation failed— he does not enjoy the status of holder in due course. See Security Pac. Nat’l Bank v. Chess, 58 Cal.App.3d 555, 129 Cal.Rptr. 852 (1976) (provision assures transferee rights of transferor); Crossland Savings Bank FSB, 737 S.W.2d at 21 (if transferor is holder in due course, transferee can assert rights of holder in due course); Estrada, 550 S.W.2d at 728 (same). See also Great Western Bank & Trust Co. v. PIMA Savings & Loan Ass ’n, 149 Ariz. 364, 718 P.2d 1017, 1020 (1986) (assignment to owner transferred rights of holder through shelter principle); Weast v. Arnold, 299 Md. 540, 474 A.2d 904, 909 (1984) (same.).
To attain its purpose of guaranteeing the transferor a ready market for his negotiable instrument, the shelter principle operates cumulatively. As some commentators explain, a transferee of a holder in due course takes through, rather than from, his transferor. Thus, if the transferor’s predecessor was a holder but the transfer- or was not, the ultimate transferee may succeed to the rights of the original holder: the holder’s rights pass through each as-signee. See 5 Anderson, supra, § 3-201:22; 1 Alderman, supra, at 630.
The commentary on this point, however, is not unanimous. Chancellor Hawkland observes that under both the NIL and the Code a question exists “whether a purchaser from a party who was denied protection of the shelter provision because he was a party to a fraud or illegality (or, under the Code, had notice of a defense or claim) obtains merely the rights of his transferor or whether he can succeed to the rights of a previous holder in due course.” 4 Hawk-land & Lawrence, supra, at 278-79.
Nevertheless, Official Code Comment (3)(a) implies that such a result is permissible, offering the following example:
“A induces M by fraud to make an instrument payable to A, A negotiates it to B, who takes it as a holder in due course. After the instrument is overdue B gives it to C, who has notice of the fraud. C succeeds to B’s rights as a holder in due course, cutting off the defense.”
See Weast, 474 A.2d at 909.
We are aware that section 3-201(3) grants a transferee for value a specifically enforceable right to have the unqualified indorsement of the transferor. However, actual “[negotiation takes effect only when the indorsement is made and until that time there is no presumption that the transferee is the owner.” U.C.C. § 3-201(3). This timing provision, a carryover from NIL § 49, may pose problems for Empire.
In view of this litigation, it is incontestable that the bank is now on notice of the plaintiffs’ fraud defense against the promoters. See Security Pac. Nat’l Bank, 129 Cal.Rptr. at 857. Comment 7 of the Official Comment to section 3-201(3) reiterates that until the indorsement is made, “the purchaser does not become a holder, and if he receives earlier notice of defense against or claim to the instrument he does not qualify as a holder in due course under Section 3-302(l)(c).”
In his treatise, Chancellor Hawkland submits that this post hoc provision may be unnecessarily harsh. He concedes, however, that “except in the case of depository bank/transí erees, the clarity of subsection 3-201(3) has discouraged any court from holding otherwise.” 4 Hawkland & Lawrence, supra, § 3-201:09, at 286.
At this stage of the litigation, we cannot anticipate what course the bank may choose to follow in light of our decision here, nor can we predict the responses defendant may interject. We hold only that, on the present state of the record, Empire is not entitled to the status of a holder in due course.
The judgments in favor of Empire will be vacated and the case remanded for further proceedings consistent with this opinion.
Costs will be taxed against Appellee.
. The exemplar reprinted in the Appendix shows what appears to be two unattached sheets of paper containing indorsements. The first page contains the indorsement of Community Federal Savings & Loan to Consolidated Mortgage Company, Consolidated Mortgage Company to Barclays American/Business Credit, and Barclays American to Consolidated Mortgage. The second sheet records indorsements from Consolidated Mortgage to North American Trust Company, North American Trust Company to Putnam Funding Corporation, and Putnam Funding to Empire of America Federal Savings Bank.
. The closest authority, not cited by either party, appears to be National Bank v. Leonard, 91 Ga. 805, 18 S.E. 32 (1893). There, a bank had received two obligation notes, one folded inside another, with the purported indorsement on the exterior note only. The court ruled that this attempted negotiation did not qualify as an in-dorsement.
. The published authorities and legal commentators have identified only two decisions which have excused the attachment requirement and permitted the transferee to claim holder status. Mosely v. Graydon, 35 S.C.L. (4 Strob.) 7 (1849); First Nat'l Bank v. Bell, 88 S.W.2d 119 (Tex.Civ.App.—Fort Worth 1935, writ dism’d). Notwithstanding their obvious equitable appeal, these rulings have not persuaded other courts, but have been expressly disapproved. See, e.g., Lopez v. Puzina, 239 Cal.App.2d 708, 49 Cal.Rptr. 122, 124-25 (1966); Tennessee Valley Bank v. Williams, 246 Ala. 563, 21 So.2d 686, 688 (1945); Estrada v. River Oaks Bank & Trust Co., 550 S.W.2d 719, 726 (Tex.Civ.App.— Houston [14th Dist.] 1977, writ ref’d n.r.e.).
. See Professor Gilmore’s interesting discussion in Gilmore, Formalism and the Law of Negotiable Instruments, 13 Creighton L.Rev. 441 (1979).
. Empire of America Federal Savings Bank has its principal place of business in Buffalo, New York. The parties have referred to this company as "Empire North.” Empire’s subsidiary, referred to in the record as “Empire South", has its administrative headquarters in Fort Worth, Texas and is incorporated under the name "Empire of America Federal Savings Bank, Deland, Florida.”
The district court concluded that, although the notes bear the legend “Pay to the order of EMPIRE OF AMERICA FEDERAL SAVINGS BANK” (Empire North), Putnam intended to indorse the notes to Empire South. The court found the misnomer in the designation of the transferee not material. We find no error in this ruling. See Swanson v. Commercial Acceptance Corp., 381 F.2d 296 (9th Cir.1967); First State Bank v. Cox, 192 Wis. 566, 213 N.W. 290 (1927).
Question: Is the first listed respondent bankrupt?
A. Yes
B. No
Answer:
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songer_respond1_1_3
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F
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case.
JACK’S COOKIE COMPANY, Appellant and Cross-Appellee, v. A. A. BROOKS, Appellee and Cross-Appellant.
No. 7060.
United States Court of Appeals Fourth Circuit.
Argued Oct. 18, 1955.
Decided Dec. 8, 1955.
See also D.C., 122 F.Supp. 113.
W. Pinkney Herbert, Jr., Charlotte, N. C., R. B. Herbert, Jr., Columbia, S. C., and James O. Moore, Charlotte, N. C. (Herbert & Dial, Columbia, S. C., and Lassiter, Moore & Van Allen, Charlotte, N. C., on the brief), for Jack’s Cookie Co.
Fred F. Cunningham and Edward M. Woodward, Columbia, S. C. (Edens & Woodward and Cunningham & Brandon, Columbia, S. C., on the brief), for A. A. Brooks.
Before SOPER and DOBIE, Circuit Judges, and BRYAN, District Judge.
SOPER, Circuit Judge.
This suit grows out of the termination of an agency contract between Jack’s Cookie Company, a North Carolina corporation, and A. A. Brooks, a citizen of South Carolina who was engaged in the business of selling and distributing the products of divers manufacturers in South Carolina and neighboring states. Jack’s terminated the contract after it had been in operation for about nineteen months and notified the trade.by circular letter that Brooks was no longer its sales representative. Thereupon Brooks sued Jack’s claiming damages for breach of contract and unjust enrichment, and also claiming actual and punitive damages 'for libel on the ground that certain statements in the circular letter imputed to' him a lack of business capacity and insinuated that he had been discharged for ■ dishonesty or misconduct. At the conclusion of the plaintiff’s case the District Judge, on motion of the defendant, dismissed the claims of breach of contract and unjust enrichment on the grounds that the arrangement between the parties lacked mutuality and was indefinite in duration and terminable at the will of either party.
The case proceeded on the claim of libel and was submitted to the jury at the close of all the evidence on the issue of actual damages, the. right to punitive damages being refused. The jury found for the plaintiff on this cause of action in the sum of $17,500, and both parties have appealed.
Jack’s had been in the business of manufacturing cookies in Charlotte, North Carolina, since 1947, but had not been very successful and in consequence it was reorganized in 1950 and a new management was installed under a new president, John Barton, who set about changing the methods of operation. The company had previously distributed its product in its own trucks on certain routes in and around Charlotte, and Barton decided to sell to independent distributors rather than from his own trucks in introducing the product in new territory. Brooks had had experience as a manufacturer’s representative in handling diversified lines oí goods which he sold to wholesalers and distributors. He was on the lookout for new accounts and one of his circulars fell into Barton’s hands and led to a meeting between the men and the formation of an oral contract.
It was agreed that Brooks was to set up a sales organization for the sale of .Jack’s product by wholesale distributors in Virginia and West Virginia, and also in the Carolinas, with the exception of certain cities in the latter states. He agreed to produce a reasonable amount of business and to pay his own expenses and he was to receive as compensation a commission of five per cent on gross sales after a deduction of five per cent for freight charges'. He was to have the position so long as he did a good job, but he was free to stop work for Jack’s at any time. There is no dispute that these terms formed part of the contract, but as to another element the testimony was in conflict. On behalf of Jack’s it was testified that Brooks was not to take on any additional lines of merchandise; but Brooks denied that he made any such agreement.
Entering upon his duties on or about January 1, 1952, Brooks visited jobbers to whom he was already selling other merchandise and divided the territory amongst them giving them exclusive areas for the sale of Jack’s cookies upon their agreement that they would not handle competing goods. He had one salesman working for him at the time, but employed additional men to assist him in the work, and paid them four-fifths of his commissions. His efforts were successful and sales were greatly increased in the territory assigned him, so that by September, 1953 the gross sales had risen from approximately $1500 to approximately $50,000 per month, and his net return amounted to $1,000 per month for a number of months in 1953. Upon his advice Jack’s increased the minimum purchase by the distributors from $50 to $200, and he selected new distributors in certain localities in place of old ones appointed by Jack’s who had proved unsatisfactory. In April, 1953, after he found the line profitable, he asked for a written contract which he had previously refused to sign, but the company declined.
Dissatisfaction arose in certain particulars. Brooks did not keep any record of his sales or of his employees, and he did not make it clear to them that they were his employees and not Jack’s, and in some instances the salesmen called on Jack’s for services which Brooks should have given. Barton was obliged to call a meeting of salesmen in Charlotte in order to instruct the salesmen on this point. Barton instructed Brooks to open an office in Columbia as headquarters for Brooks’ operations and in January Brooks rented an office and engaged a secretary, but it was not opened until July and then it proved to be the headquarters of an employment agency operated by his wife and his secretary. Brooks hired and fired a large number of salesmen during the period and he had only two salesmen at work in September, 1953.
In April, 1953, in order to increase sales and instruct the retailers as to the distribution of the product, it was agreed that one Henry Hall, an experienced man, should be employed to go out with the salesmen on their routes in order to demonstrate how to display the goods, and he was paid for these services by Jack’s for seventy-five days, and thereafter one-half of his salary was paid by each of the parties.
While working for Jack’s Brooks took on several new lines for distribution, contrary to his agreement with Jack’s, if the testimony of Barton is accepted.
On September 1, 1953 Brooks was called into Jack’s office and discharged. He was paid in full for goods sold up to that date. Henry Hall, as an employee of Jack’s, was put in charge of the distribution of the merchandise on a salary basis.
On or about September 3, 1953 Barton sent out to the trade a letter announcing that Brooks had ceased to be Jack’s representative in the following terms:
“This is to notify you that effective September 1, 1953, Mr. A. A. Brooks and his organization are no longer the sales representatives of Jack’s Cookie Company, Charlotte, N. C.
“We are sorry that situations of this nature have to arise, but we have no hesitancy in doing that which in our judgment is best for the company, its distributors, representatives and customers. You will be contacted as soon as possible by an official representative of this company. It is our sincere desire to serve you in an efficient manner with quality products of which you can be proud. Your business is greatly appreciated and we will do everything in our power to continue to be worthy of it.
“Should there be any questions whatsoever concerning this situation, please do not hesitate to call Mr. Howard Walters at 3-9033, Charlotte, N. C.”
We think it was error to submit the libel charge to the jury because the letter does not convey a defamatory meaning. At the worst it meant nothing more than that Jack’s believed it better for the business to select a new sales agent, and the statement that it was best for the company, its distributors and customers to make the change, could not fairly be interpreted as charging Brooks either with incompetency or dishonesty. Any unexplained severance of the relationship of employer and employee gives rise to speculations as to the reasons for, it in the minds of interested persons, but something more than mere speculation is required to form the basis of a charge of libel or slander. In Phillips v. Union Indemnity Co., 4 Cir., 28 F.2d 701, we had occasion to consider a case from South Carolina in which it was charged that the cancellation of an agency by an insurance company reflected upon the character of the agents under the circumstances in which it occurred. We sustained a demurrer to the complaint saying, at pages 702, 703:
“It is familiar law that while the office of the innuendo is to connect the defamatory matter with the other facts set out, so as to show the meaning and application of the charge, it cannot enlarge or restrict the natural meaning of the words, or introduce new matter. It cannot be used to give a forced and unnatural construction and application of the words, but only a reasonable and natural construction and application. * * * since the injurious character of the publication and the harm done to the plaintiff depends upon the manner in which the writing is understood by those to whom it is uttered, it must be read and construed in the sense in which the reader would ordinarily understand it; and if, when thus considered, it cannot reasonably be interpreted as defamatory, it will not serve as a basis for the action.
“ * * * But neither in a libel case, nor in any other, may a jury be permitted to indulge in mere speculation, unaided by facts, to determine which of several causes may have produced an event. No facts are alleged which tend to show that there was friction between the parties to the cause, or that the most evil of all possible meanings was intended by the defendant.”
This is also the rule of the South Carolina courts by whose decisions we are governed in this case. See particularly, Hubbard v. Furman University, 76 S.C. 510, 57 S.E. 478, where, upon the resignation of a teacher, the school sent out a notice to its patrons in which it was said that the change was made for the good of the department and in the interest of the patrons, and the court held that the statement was not libelous and would not ordinarily be understood as implying a charge of incompetency or lack of character. See also Hospital Care Corp. v. Commercial Casualty Insurance Co., 194 S.C. 370, 9 S.E.2d 796; cf. Duncan v. Record Publishing Co., 145 S.C. 196, 143 S.E. 31.
Our conclusion is not changed by the testimony of three recipients of the letter who were allowed to testify that the impression made upon them by it was that Brooks had done something wrong or out of the way which led to the discontinuance of the agency, although it did not cause them to lose confidence in him. The decision must rest upon the ordinary meaning of the words and not upon the mere speculation of the recipients of the letter. The case is not one in which it is proper to consider the effect upon the minds of the hearers of words which were ambiguous in the context of the circumstances under which they were spoken. See Jenkins v. Southern Ry. Co., 130 S.C. 180, 125 S.E. 912.
We think, however, that the case should have been submitted to the jury on the issue of breach of contract, because in our opinion the evidence, taken in the light most favorable to the agent, indicated something more than a contract in which the agent is appointed merely to sell the goods of a manufacturer on commission, and there is no promise on either side to continue the relationship for a definite period. In such event each sale constitutes the acceptance of an offer in a series of independent transactions and the manufacturer fulfills his agreement by paying the stipulated commission and is ordinarily at liberty to terminate the arrangement at will without breach of contract. See Willcox & Gibbs Sewing-Machine Co. v. Ewing, 141 U.S. 627, 12 S.Ct. 94, 35 L.Ed. 882; Motor Car Supply Co. v. General Household Utilities Co., 4 Cir., 80 F.2d 167; E. I. DuPont de Nemours & Co. v. Claiborne-Reno, 8 Cir., 64 F.2d 224, 89 A.L.R. 238; Curtis Candy Co. v. Silberman, 6 Cir., 45 F.2d 451; Terre Haute Brewing Co. v. Dugan, 8 Cir., 102 F.2d 425; Shealy v. Fowler, 182 S.C. 81, 188 S.E. 499.
On the other hand, if the manufacturer appoints an agent not merely to sell the goods, but the agent in addition to making sales furnishes additional 'consideration, as when he sets up a distributive system for the manufacturer's goods and his compensation is measured by the amount of goods sold in the territory assigned to him, the manufacturer is not at liberty to terminate the agreement at will even though it contains no provision for its termination, but must retain the agent in the employment for a reasonable period of time. Williston on Contracts, § 1027(a), p. 2852; Joy v. City of St. Louis, 138 U.S. 1, 50, 11 S.Ct. 243, 34 L.Ed. 843; Restatement of Agency, § 442 Comment C; Kelly-Springfield Tire Co. v. Bobo, 9 Cir., 4 F.2d 71; Bassick Mfg. Co. v. Riley, D.C.E.D.Pa., 9 F.2d 138; J. C. Millett Co. v. Park & Tilford Distillers Corp., D.C.N.D.Cal.S.D., 123 F. Supp. 484; Shealy v. Fowler, 182 S.C. 81, 188 S.E. 499.
There is evidence in this case which tends to show that Brooks’ employment falls into the latter category, and hence the question should have been submitted to the determination of the jury; and if they should so find, they should go further and determine the additional question whether the agent was permitted to retain the agency for a reasonable time, and if not, to ascertain the damages, if any, which he suffered thereby.
However, the jury should be instructed first to consider whether Brooks kept the promises which he made. This issue involves in the first place a determination of the disputed question whether Brooks promised, when he assumed the agency, not to take on any new lines additional to Jack’s, and if they find that he made this promise, and violated it, they should be instructed to find a verdict for the defendant.
In addition the jury should determine whether Brooks faithfully and efficiently carried out his part of the business. In this connection the jury should be instructed to consider the evidence tending to show the character of the salesmen selected by him, the frequent changes of personnel, his failure to render them the necessary services and to instruct them that they were his employees and not the employees of Jack’s; and also the failure of Brooks to set up a headquarters’ office for his agency. If the jury should find from a consideration of this evidence relating to these matters that Jack’s had reasonable ground to terminate the agency, the verdict of the jury should be in its favor.
It is not our intention to express any opinion on these controverted questions or to limit the jury to the consideration of the circumstances referred to above, but rather to outline the course to be followed upon the remand of the case, leaving to the District Judge to determine the bearing of the evidence, as it will be developed at the new trial upon the crucial issues in the case.
Reversed and remanded for new trial in accordance with the views expressed in this opinion.
. There is no legal basis for the separate claim of the appellee for unjust enrichment.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case?
A. agriculture
B. mining
C. construction
D. manufacturing
E. transportation
F. trade
G. financial institution
H. utilities
I. other
J. unclear
Answer:
|
songer_r_fed
|
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.
LIBERTARIAN PARTY OF MAINE, et als., Plaintiffs, Appellants, v. G. William DIAMOND, Etc., Defendant, Appellee. (Two Cases).
Nos. 92-2026, 92-2061.
United States Court of Appeals, First Circuit.
Heard Jan. 4, 1993.
Decided April 30, 1993.
Glenn S. Eddy with whom Berman & Simmons, P.A., Lewiston, ME, was on brief for plaintiffs, appellants.
Cabanne Howard, Deputy Atty. Gen., with whom Michael E. Carpenter, Atty. Gen., Augusta, ME, was on brief for defendant, appellee.
Before TORRUELLA and CYR, Circuit Judges, and BOWNES, Senior Circuit Judge,
CYR, Circuit Judge.
The Libertarian Party of Maine (“Party”) and seventeen of its candidates for elective office (“appellant candidates”) challenge a district court ruling upholding the constitutionality of Maine’s ballot-access requirements, 21-A M.R.S.A. § 301 et seq. We affirm.
I
Under Maine law, a group of voters seeking recognition as a new political party may “qualify” in either of two ways. First, the voter group may petition the Secretary of State to participate as a political party in the primary election; the petition must be signed by voters numbering at least 5% of the votes cast in the preceding gubernatorial election. See 21-A M.R.S.A. § 303(1). Second, the group may organize a political party around a prior candidate for the office of Governor or President who (1) was not affiliated with a registered party; (2) consents in writing; and (3) received more than 5% of the total Maine vote cast for the office of Governor or President, as the case may be, in the immediately preceding gubernatorial or presidential election. See id. at § 302(1). A party which organizes itself under § 302(1), on the “coattails” of a prior independent candidate for office, need not demonstrate contemporaneously the level of voter support defined in § 303(1), but the party’s candidates remain subject to the numerical voter-support requirements for later listing on the general election ballot. See id. at § 304.
Party recognition entails certain benefits, including public exposure, the prestige of “official” status, automatic listing of the party’s presidential candidate on the election ballot, see id. at § 331(2)(A), and the right to raise funds by means of a special check-off box on the Maine income tax form. See 36 M.R.S.A. § 5283. With these benefits come certain responsibilities, including the obligation to hold municipal caucuses during election year, 21-A M.R.S.A. §§ 301(1)(A), 311; to hold a biennial state convention, id. at § 301(1)(B), 321; and to nominate candidates for office through a primary election process, id. at § 331(1). The primary election process is intended to control “ballot clutter” by ensuring that each political party nominates only one candidate for any particular office, and that the party nominee possesses the prescribed levels of support within his or her party and the general electorate. See Opinion of Justices of the Supreme Judicial Court, 578 A.2d 183, 186 (Me.1990).
To qualify for the primary election ballot, a party candidate must present the Secretary of State, not later than April 1, with a petition signed by enough enrolled party members to demonstrate the level of party support prescribed for the particular “electoral division” to which the candidate seeks election. Id. at § 335(5). The required levels of petition support are shown in Table I. '
TABLE 1
Number of Signatures Required to Qualify For Primary Ballot (Registered Party Candidates)
President of the United States 2000 signatures
United States Senator 2000 signatures
State Governor 2000 signatures
United States Representative 1000 signatures
County offices (other than County Commissioner) 150 signatures
State Senator 100 signatures
County Commissioner 50 signatures
State Representative 25 signatures
A party candidate who does not obtain the signatures required to qualify for the primary election ballot may still qualify for the general election ballot by winning a plurality of the party’s primary election write-in vote. Id. at § 723(1)(A). The write-in voting process is not restricted to members of the candidate’s political party, but is open to any registered voter who is eligible to participate in the party primary. Id. at § 340. On the other hand, a successful write-in candidate must obtain votes totalling twice the number of signatures which would have been required to qualify for listing on the primary ballot under § 335(5). See id. at 723(1)(A).
TABLE II
Number of Signatures Required to Qualify For General Election Ballot by Nomination Petition or by Write-In Vote in Party Primary
Presidential elector 4000 signatures
United States Senator 4000 signatures
Governor 4000 signatures
United States Representative 2000 signatures
County office (other than County Commissioner) 300 signatures
State Senator 200 signatures
County Commissioner 100 signatures
State Representative 50 signatures
Candidates who are not enrolled in a “qualified” party, or who withdraw their party affiliation at least three months in advance, see id. at § 353, may qualify for Maine’s general election ballot through a third process, a nomination petition. Id. at § 351. The nomination petition must bear the names, signatures and addresses of enough registered voters, regardless of party affiliation, to meet the prescribed level of support for the particular “electoral division” to which the candidate aspires. Id. at § 354(1) — (2). Generally speaking, the number of signatures required on a nomination petition for any particular office is the same as that required for a write-in candidate to qualify at a party primary, see Table II, supra; and totals twice the number of signatures a party candidate would be required to obtain on a primary petition. See id. at § 354(5). A prospective candidate may list a party name (or “political designation”) of up to three words on the nomination petition, id. at § 354(1), and on the general election ballot if s/he qualifies. Id. at § 602(2)(B).
II
For some time, the Libertarian Party has participated in Maine elections, apparently without achieving the level of voter support needed to qualify as an official political party under § 303. In January 1991, however, Andrew Adam, an independent candidate who won 9% of the vote in the 1990 Maine gubernatorial election, permitted the Party to use his name to bypass the nomination-petition process and qualify automatically as a political party under the “coattail” provisions of § 302(1). Following its certification as an “official” party, the Party made diligent efforts to attract members. By the date of the primary election on June 9, 1992, it had enrolled 1,048 registered voters statewide, but did not have sufficient concentrations of membership support to satisfy the signature requirements under § 335 for getting the appellant candidates on the primary election ballots in their respective districts. The appellant candidates participated as write-in candidates in the Party primary, and in some instances won a plurality of the write-in votes cast in their respective districts, but the total number of their write-in votes was insufficient to qualify the appellant candidates for the general election ballot under § 723(1)(A)
Anticipating its candidates’ inability to qualify for the general election ballot through the prescribed statutory process, the Party amended its by-laws on May 17, 1992, to permit its candidates in the general election to be nominated at the Party convention. Following their nomination, the names of the appellant candidates were submitted to defendant-appellee, Secretary of State William Diamond (“Secretary”), who declined to place their names on the general election ballot, citing the mandatory language of the Maine election code. See id. at § 331(1) (“a party’s nomination of a candidate for federal, state or county office shall be made by primary election”) (emphasis added); § 7 (“[w]hen used in this Title, the words ‘shall’ and ‘must’ are used in a mandatory sense to impose an obligation to act or refrain from acting”).
On August 10, 1992, the Party brought an action for injunctive relief against the Secretary, challenging, inter alia, the constitutionality of Maine’s ballot-access restrictions. Following an expedited hearing, the district court dismissed the action. See Libertarian Party of Maine v. Diamond, 799 F.Supp. 1 (D.Me.1992). We denied injunc-tive relief pending appeal, on the ground that appellants had not shown a likelihood of success on the merits of their constitutional claim. In the 1992 general election, no Party candidate was elected to any state office. The Party’s presidential candidates, Andrew Marrou and Nancy Lord, who were “automatically” listed on the general election ballot, received approximately one-quarter of one percent of the Maine popular vote.
Reiterating their constitutional claims on appeal, appellants note that a Party candidate may be denied access to the general election ballot under the Maine election code, even if s/he commands the support of a plurality of the voters participating in the Party’s district primary, unless s/he also shows that the Party itself has sufficient support, in the particular electoral subdivision, to enable the candidate (1) to gather the requisite signatures from Party members to qualify for the primary ballot under § 335(5); or (2) to qualify for the general election ballot by obtaining sufficient voter participation in a write-in election under § 723(1)(A). Appellants assert that these additional requirements are unnecessary and unconstitutionally burdensome, since the Party has already qualified, under 21-A M.R.S.A. § 302, as an organization possessing “statewide support.” Furthermore, appellants assert, if any additional showing of support is necessary, the Party should be able to rely on demonstrations of support from other voters outside the Party ranks.
III
Limitations upon ballot access may impinge two fundamental constitutional rights: “the right of individuals to associate for the advancement of political beliefs, and the right of qualified voters, regardless of their political persuasion, to cast their votes effectively.” See Williams v. Rhodes, 393 U.S. 23, 30, 89 S.Ct. 5, 10, 21 L.Ed.2d 24 (1968); see also, e.g., Munro v. Socialist Workers Party, 479 U.S. 189, 193, 107 S.Ct. 533, 536, 93 L.Ed.2d 499 (1987); Illinois State Board of Elections v. Socialist Workers Party, 440 U.S. 173, 184, 99 S.Ct. 983, 990, 59 L.Ed.2d 230 (1979). Where ballot access restrictions fall unequally on similarly situated parties or candidates, the Fourteenth Amendment right to “equal protection of the laws” may be threatened as well. See Anderson, 460 U.S. at 786 n. 7, 103 S.Ct. at 1569 n. 7; Lubin v. Panish, 415 U.S. 709, 713-14, 94 S.Ct. 1315, 1318-19, 39 L.Ed.2d 702 (1974); Bullock v. Carter, 405 U.S. 134, 141, 92 S.Ct. 849, 855, 31 L.Ed.2d 92 (1972); Williams, 393 U.S. at 30-34, 89 S.Ct. at 10-12. The Supreme Court has recognized, nevertheless, that “as a practical matter, there must be substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes.” Storer v. Brown, 415 U.S. 724, 730, 94 S.Ct. 1274, 1279, 39 L.Ed.2d 714 (1974). This legitimate interest in reasonable regulation is based not only on “common sense,” Burdick v. Takushi, — U.S. —, —, 112 S.Ct. 2059, 2063, 119 L.Ed.2d 245 (1992), but also on the Article I reservation to the States of the power to prescribe “Times, Places, and Manner of holding Elections for Senators and Representatives.” U.S. Const., Art. I, § 4, cl. 1. Accordingly, courts have attempted a constitutional equilibrium between the legitimate constitutional interests of the States in conducting fair and orderly elections and the First Amendment rights of voters and candidates, balancing
“the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate” against “the precise interests put forward by the State as justifications for the burden imposed by its rule,” taking into consideration “the extent to which those interests make it necessary to burden the plaintiffs rights.”
Burdick, — U.S. at —, 112 S.Ct. at 2063 (quoting Anderson, 460 U.S. at 789, 103 S.Ct. at 1570). “Only after weighing all these factors is the reviewing court in a position to decide whether the challenged provision is unconstitutional.” Anderson, 460 U.S. at 789, 103 S.Ct. at 1570.
A. “Substantial Support”
As the Supreme Court repeatedly has held, States have a legitimate interest in “protecting] the integrity of the electoral process” by ensuring that “all candidates for nomination make a preliminary showing of substantial support” among voters in the relevant electoral districts. Over the years, the Court has articulated the “support” requirement in various ways, but its broad outlines are clear. See, e.g., Munro, 479 U.S. at 193, 107 S.Ct. at 536 (“modicum of support among the potential voters for the office”); Anderson, 460 U.S. at 788-89 n. 9, 103 S.Ct. at 1569-70 n. 9 (“preliminary showing of substantial support”); American Party of Texas v. White, 415 U.S. 767, 782, 94 S.Ct. 1296, 1307, 39 L.Ed.2d 744 (1974) (“significant, measurable quantum of community support”); Lubin, 415 U.S. at 715, 94 S.Ct. at 1319 (“serious candidates with some prospects of public support”); Jenness v. Fortson, 403 U.S. 431, 442, 91 S.Ct. 1970, 1976, 29 L.Ed.2d 554 (1971) (“significant modicum of support”). The “support” requirement is meant to safeguard the integrity of elections by avoiding overloaded ballots and frivolous candidacies, which diminish victory margins, contribute to the cost of conducting elections, confuse and frustrate voters, increase the need for burdensome runoffs, and may ultimately discourage voter participation in the electoral process. See Illinois State Board of Elections, 440 U.S. at 183-84, 99 S.Ct. at 989-90 (quoting Lubin, 415 U.S. at 715, 94 S.Ct. at 1319); Bullock, 405 U.S. at 145, 92 S.Ct. at 857. A State is permitted to consider a party’s primary-election performance as a relevant factor in its measurement of “significant support.” See, e.g., Munro, 479 U.S. at 196-197, 107 S.Ct. at 538 (upholding requirement that minor parties poll 1% of participating electorate in primary election; observing that “[t]he primary election ... is ‘an integral part of the entire election process ... [that] functions to winnow out and finally reject all but the chosen candidates’ ”). “The State can properly reserve the general election ballot ‘for major struggles.’ ” Id. (quoting Storer, 415 U.S. at 735, 94 S.Ct. at 1281).
The Party argues that its qualification as a political party under the § 302 “coattail” provision was enough to demonstrate “substantial support” among the Maine electorate. We do not agree. By choosing to qualify under the “coattail” provision, the Party bypassed the requirement of mustering significant numerical support among eligible voters, rather than demonstrating its capacity to do so. As far as the record shows, the Party has submitted no petitions, enrolled few members, and garnered little support for the candidates who ran under its banner in the 1992 and earlier elections. Indeed, its only significant sponsorship to date has been the endorsement of Andrew Adam, whose 9% showing in the 1990 gubernatorial elections may have suggested an ability to interest independents in Party enrollment, but clearly did not ensure that such support could or would be obtained. In these circumstances, we think the State retained a legitimate interest in ensuring that the Party in fact possessed a minimal level of support among the electorate, as a prerequisite to listing the appellant candidates on the primary and general election ballots.
Moreover, even if we were to accept the Party’s premise — that Adam’s coattails invested the Party with some similitude of “statewide support” — more would be required. The Supreme Court recently confirmed that a State possesses a separate, and additional, interest in ascertaining that a political party which nominates candidates for office in an electoral subdivision of a larger political unit demonstrate support in the particular electoral subdivision for which the candidate is nominated. See Norman v. Reed, 502 U.S. —, —, 112 S.Ct. 698, 708, 116 L.Ed.2d 711 (1992) (rejecting “overall” showing of support as basis for nominating local candidate; “[a] Party [may not] cite its success in [one] district as a sufficient condition for running candidates in the [other]”). The Norman requirement makes sound electoral sense: the potential for “confusion and frustration” when statewide election ballots are overloaded with candidacies who lack even a modicum of support among eligible voters poses similar risks in local and district elections. As all appellant candidates sought elective office at the local or district level, rather than statewide, the State had a legitimate interest in ensuring a modicum of candidate support among the relevant voter constituencies, over and above any general support which might be imputed to the Party based on Adam’s “statewide” success in 1990.
B. Regulating Primary Participation
States possess a comparable interest in ensuring that a party’s nominating process includes sufficient participation by the party’s own members or supporters. Absent some level of participation by party members, the integrity of party nominations might be compromised by “party raiding,” whereby “voters in sympathy with one party ... influence or determine the results of another party’s primary,” Rosario, 410 U.S. at 761-62, 93 S.Ct. at 1251-52, which in turn could threaten the integrity of general elections and dilute the informative function of a party’s label as a description of its collective political purpose. See Tashjian, 479 U.S. at 220-21, 107 S.Ct. at 551-52 (noting “informative function” of party labels as “shorthand designation of the views of [the] party[’s] candidates on matters of public concern”); Rosario, 410 U.S. at 762, 93 S.Ct. at 1252 (noting State’s asserted interest in preventing primary votes which are “not in sympathy with the party’s principles”).
Appellants correctly suggest that the Supreme Court, in Tashjian, minimized the significance of the State’s interest in “attempting to act as the ideological guarantor of [a particular] Party’s candidates,” 479 U.S. at 218, 107 S.Ct. at 550, and reaffirmed its “faith in the ability of individual voters to inform themselves about campaign issues,” id. (quoting Anderson, 460 U.S. at 796, 103 S.Ct. at 1574). In arriving at this conclusion, however, the Court specifically noted the state-law requirement that parties maintain a certain level of support among the general electorate, see id. 479 U.S. at 211 n. 2, 107 S.Ct. at 547 n. 2, and that party candidates thereafter “garner substantial minority support” at the Party’s “closed” convention:
The Party is not proposing that independents be allowed to choose the Party’s nominee without Party participation; on the contrary, to be listed on the Party’s primary ballot continues to require, under a statute not challenged here, that the primary candidate have obtained at least 20% of the vote at a Party convention, which only Party members may attend. Id. at 220-21, 107 S.Ct. at 552 (emphasis added). In light of the Tashjian Court’s explicit reference 'to a “closed” nomination process, by a Party possessing “substantial support” among the general electorate, we do not think Tashjian signals a retreat from the position that the State may impose reasonable safeguards to ensure active participation by a significant number of a party’s members or supporters in the course of the nominating process.
C. Burden on Associational Interests
We next consider the burdensomeness of Maine’s electoral scheme. Like all such schemes, Maine’s ballot-access restrictions “inevitably affeet[ ] — at least to some degree — the individual’s right to vote and his right to associate with others for political ends.” Anderson, 460 U.S. at 788, 103 S.Ct. at 1570. After carefully examining the effects of Maine’s nomination procedures, the district court concluded that the challenged ballot-access requirements were neither inappropriate to their purposes nor unconstitutionally burdensome. We agree.
As the district court noted, the levels of electoral support Party candidates are required to demonstrate in order to get on the Party’s primary ballot are not high:
The record shows that there are approximately 876,000 registered voters in Maine. In Maine there are two Congressional seats, 35 state senate seats, and 151 state representative seats. If each electoral division has an equal number of voters, then each Congressional district would have approximately 438,000 voters, each state senate district would have approximately 25,-000 voters, and each state representative district would have approximately 5,800 voters. The requirements for primary petition signatures for these three districts are 1,000,100 and 25, respectively. Therefore, the numbers [of Party members’ signatures] that an aspiring Libertarian candidate for each of these positions would need amount to 0.22%, 0.4%, and 0.43%, respectively, of the registered voters in each district.
799 F.Supp. at 4. We endorse the district court’s view that these signature requirements indeed are modest in numerical terms. Compare, e.g., American Party, 415 U.S. at 783, 94 S.Ct. at 1307 (upholding requirement that 1% of voters in last gubernatorial election must participate in minor parties’ precinct conventions or sign supplemental nominating petitions for statewide candidates; “[t]o demonstrate this degree of support does not appear either impossible or impractical, and we are unwilling to assume that the requirement imposes a substantially greater hardship on minority party access to the ballot”); see also Burdick, — U.S. at —, 112 S.Ct. at 2064 (1% of all registered voters for party participation in statewide primary); Illinois State Board of Elections, 440 U.S. at 186, 99 S.Ct. at 991 (25,000 signatures for statewide office); Storer, 415 U.S. at 740, 94 S.Ct. at 1284 (325,000 signatures statewide in 24 days); Jenness, 403 U.S. at 431, 91 S.Ct. at 1970 (5% of state’s registered voters).
Unlike the statutes under challenge in American Party and other eases, however, the Maine statute requires Party candidates to obtain the signatures of Party members, as opposed to independent voters or voters enrolled in other political parties. Accordingly, the Party insists, the onerousness of the signature requirements must be defined, for constitutional purposes, as a percentage of party membership (the “eligible pool of possible signers”), rather than the entire electorate. See Storer, 415 U.S. at 742-43, 94 S.Ct. at 1285. Any broader view, says the Party, would treat all registered voters as potential Party enrollees, “amounting] to forced political association” violative of First Amendment rights. See Democratic Party v. Wisconsin, 450 U.S. at 122, 101 S.Ct. at 1019 (“the freedom to associate for the ‘common advancement of political beliefs’ necessarily presupposes the freedom to identify the people who constitute the association, and to limit the association to those people only”) (quoting Kusper v. Pontikes, 414 U.S. 51, 56, 94 S.Ct. 303, 307, 38 L.Ed.2d 260 (1973)); Consumer Party, 633 F.Supp. at 889-90 (“a party may not be essentially required to broaden its message or appeal in an effort to increase its membership; a group’s associative rights depend on having as members only those who share a particular vision and collective purpose”); see also Roberts v. United States Jaycees, 468 U.S. 609, 623, 104 S.Ct. 3244, 3252, 82 L.Ed.2d 462 (1984) (“freedom of association ... plainly presupposes a freedom not to associate”).
Viewed as the Party urges, the Maine scheme indeed would appear onerous; the Party lacks sufficient membership support in many districts and counties to meet the primary-ballot access requirements of § 335. We see the issue somewhat differently, however. We need not decide whether there may be circumstances in which significant constitutional problems would result from a regulatory scheme which precluded candidate access to a party’s ballot by different means than those under challenge in this case. If such limits exist, it suffices to say that they have not been reached under the Maine electoral scheme.
First, the burden about which the Party complains is self-imposed, for the most part. Under Maine law, a party which adopts restrictive membership policies is not required to assume “qualified” status under § 301, et seq., or to assume the burdens of the primary nomination requirement imposed by § 331. Indeed, a party can choose to “disqualify” itself at any time up to April 15 of an election year, even after submitting the party designation and consent of its “coattail” candidate under § 302(1), merely by eschewing the municipal caucuses required by § 302(3), or by instructing its party chairman to withhold the signed certificate of caucus participation required by § 301(1)(D). If a party voluntarily chooses — or continues — to pursue the § 302 procedure for electoral participation as a “qualified” party, it must be understood to have assumed the burden of maintaining membership rolls sufficient to nominate candidates through the primary election process.
Second, and equally important, a party which chooses not to participate in primary elections as a “qualified” party retains the option to qualify candidates for the statewide election ballot through the § 351 “nomination petition” procedure. The Party has offered no evidence whatever to suggest that this alternate route to the printed ballot is substantially more burdensome for a small party than a primary-qualification procedure. In fact, in the 1992 elections, at least three independent candidates for President— Lenora Fulani, H. Ross Perot, and Howard Phillips — mustered the requisite 4000 signatures and qualified by petition to be listed, along with their chosen “political designation,” on Maine’s general election ballot. As the Supreme Court recognized in Jenness, 403 U.S. at 441-42, 91 S.Ct. at 1975, a nomination petition procedure for ballot access by new or small political parties is not inherently impermissible, merely because it is different from the procedure permitted for larger parties, provided the procedure imposes no undue burden. “There are obvious differences in kind between the needs and potentials of a political party with historically established broad support, on the one hand, and a new or small political organization on the other. [A State is not] guilty of invidious discrimination in recognizing these differences and providing different routes to the printed ballot.” Id.; see also Munro, 479 U.S. at 193, 107 S.Ct. at 536 (“[i]t is now clear that States may condition access to the general election ballot by a minor-party or independent candidate upon a showing of a modicum of support [in a primary election] among the potential voters for the office”); American Party, 415 U.S. at 782, 94 S.Ct. at 1307 (“so long as the larger parties must demonstrate major support among the electorate at the last election, whereas the smaller parties need not, the latter, without being invidiously treated, may be required to establish their position in some other manner”).
Finally, even if a small party chooses to “qualify” under § 302, and to nominate its political candidates under the primary election procedure, Maine law provides a means by which party candidates may gain access to the general election ballot by soliciting support from unenrolled registered voters through write-in ballots cast in the primary election. The write-in ballot option ensures that no qualified primary voter is denied the opportunity freely to vote for the candidate of his or her choice, and that a small party which is unable to meet the minimal membership requirements for listing any candidates on its primary ballot, despite “significant support” among the general electorate in a particular district, may nonetheless nominate the candidate who receives a plurality of primary voter support. Unity Party v. Wallace, 707 F.2d 59, 62 (2d Cir.1983) (write-in candidacy is acceptable alternative to ballot listing where ballot access requirement imposes de minimis encumbrance). The one impediment is that the successful primary candidate’s write-in plurality must be sufficient to satisfy the numerical
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.
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songer_state
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48
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What follows is an opinion from a United States Court of Appeals. Your task is to identify the state or territory in which the case was first heard. If the case began in the federal district court, consider the state of that district court. If it is a habeas corpus case, consider the state of the state court that first heard the case. If the case originated in a federal administrative agency, answer "not applicable". Answer with the name of the state, or one of the following territories: District of Columbia, Puerto Rico, Virgin Islands, Panama Canal Zone, or "not applicable" or "not determined".
CONTINENTAL ILLINOIS NATIONAL BANK AND TRUST COMPANY OF CHICAGO, et al., Plaintiffs/Appellees, v. The STATE OF WASHINGTON et al., Defendants/Appellants, The Don’t Bankrupt Washington Committee, Intervenor/Appellant. UNITED STATES of America, Plaintiff/Appellee, v. The STATE OF WASHINGTON et al., Defendants/Appellants, The Don’t Bankrupt Washington Committee, Intervenor/Appellant.
No. CA 82-3404.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Nov. 10, 1982.
Decided Jan. 11, 1983.
Appeal Dismissed April 18, 1983.
See 103 S.Ct. 1762.
Jeffrey D. Goltz, Asst. Atty. Gen., Olympia, Wash., for defendants-appellants.
William R. Squires, III, Davies, Wright, Todd, Riese & Jones, Seattle, Wash., argued, Franklin P. Auwarter, Mayer, Brown, Platt, Chicago, 111., Richard K. Willard, Washington, D.C., for plaintiffs-appellees.
Before WRIGHT, ANDERSON and CANBY, Circuit Judges.
CANBY, Circuit Judge:
This case involves a challenge to the constitutionality of the Washington State Energy Financing Voter Approval Act, 1981 Wash.Laws (2d Ex.Sess.) ch. 6 (“Initiative 394”), as applied to three nuclear power plants currently under construction. The initial challenge was brought by three banks serving as trustees for holders of bonds previously issued to finance the construction of these projects. The Don’t Bankrupt Washington Committee (“Committee”), the original proponent of Initiative 394, was permitted to intervene. The United States then filed suit challenging the Initiative on behalf of the Bonneville Power Administration (“BPA”). The Committee was also permitted to intervene in that action and the two cases were consolidated.
Plaintiffs argued that initiative 394 violated various provisions of the federal and state constitutions. The district court held that the Initiative unconstitutionally impaired existing contractual obligations to finance and complete three nuclear power plants under construction. U.S. Const. Art. I, § 10. It did not reach the additional contentions presented. We affirm.
BACKGROUND
BPA is a federal agency charged with marketing the power produced from federal hydroelectric projects in the Columbia River Basin to 147 customers in the Pacific Northwest. In the 1960’s, BPA was faced with rapidly increasing demand for power and concluded that it would be unable to meet the future needs of its customers from existing facilities. As a result, BPA embarked upon a program under which certain of its customers were to build and operate the additional power plants needed to meet the anticipated demand. One segment of the program provided for BPA’s “preference customers” (public utilities and cooperatives) to construct power projects that would be integrated into BPA’s system without BPA’s owning or operating the projects.
The Washington Public Power Supply System (“WPPSS”) is the builder of three nuclear power plants to be operated by it as part of- the BPA program. WPPSS is a municipal corporation of the State of Washington known as a “joint operating agency.” It is comprised of 19 public utility districts and 4 municipalities, all of which are also political subdivisions of the State. During the early 1970’s WPPSS entered various agreements to enable it to build and operate the plants. Those agreements and the provisions of state law in existence at the time they were executed contain the obligations of contract allegedly impaired by Initiative 394. The agreements fall into three categories.
The first category consists of project agreements between BPA and WPPSS governing the construction and operation of each of the three plants. The project agreements allow BPA to oversee certain aspects of construction including budgets and termination. BPA is authorized to disapprove “significant action” taken by WPPSS if BPA concludes that the action is inconsistent with “Prudent Utility Practice.” If WPPSS and BPA are unable to agree on the proposed action, the matter is referred to an independent “project consultant.” The project consultant is authorized to resolve the dispute in accordance with the Prudent Utility Practice standard. There is little doubt that a decision not to finance the projects through to completion would be a “significant action” subject to disapproval if it did not meet the Prudent Utility Practice standard. In addition, the project agreements specifically obligate WPPSS to “use its best efforts to issue and sell bonds to finance the costs” of construction of each plant.
The second category of agreement entered by WPPSS consists of “Net Billing Agreements” between WPPSS, BPA and other “participants,” who are BPA customers. Like the project agreements, the Net Billing Agreements require WPPSS to construct and operate the plants in accordance with Prudent Utility Practice. They also make each participant liable for a share of the construction and financing costs of the project equal to that participant’s share of anticipated power output. Under the agreements, the participants assign their share of anticipated output to BPA in return for credit for an equal amount of power on their wholesale bill from BPA. BPA in turn assumes each participant’s obligation to pay its share of the construction and financing costs of the project. The result of the Net Billing Agreements, then, is that BPA receives essentially all the power to be produced by the three plants, and undertakes to pay the construction and financing costs of the projécts whether or not any power ultimately is produced by the plants. Those costs BPA would presumably pass on to its ratepayers throughout the Northwest. This obligation of BPA to pay the costs of constructing the plants regardless of output makes the protections of the project agreements extremely important to BPA. The project agreements enable BPA to prevent a termination of construction by WPPSS unless that termination is consistent with Prudent Utility Practice.
The third category of agreement entered by WPPSS consists of promises to bond purchasers, made in the form of bond resolutions and the state statutes giving them effect. WPPSS issued revenue bonds, payable solely from the income derived by WPPSS from its ownership and operation of the power plants. The bond resolutions assured bondholders that WPPSS was “duly authorized under all applicable laws to create and issue the bonds and to adopt [the resolutions].” The authorizing section of the resolutions permitted the issuance of future bonds “in such amounts and from time to time as may be required to pay the costs of construction.” The resolutions contain covenants by WPPSS that it would “take all lawful measures required to issue and sell” the additional bonds required to complete the project. WPPSS also agreed to “use its best efforts to issue and sell Bonds to finance the costs of the project and the completion thereof.” It covenanted that it would “proceed with all reasonable diligence to and will construct to completion the project and complete such construction at the earliest practical time.”
WPPSS’ promises to use best efforts to sell bonds and to proceed with diligence to completion are important to the bondholders, of course, because the bonds are payable from revenues produced by operation of the plants. It is true that the bondholders are also protected by BPA’s obligation under the Net Billing Agreements to pay the costs of construction including its financing, but that fact does not render the promises of completion unimportant to the bondholders. Sale of power is still an important source of repayment of the bonds. The bond resolutions themselves recognized that operation of each project is “essential to the payment and security of the Bonds.”
INITIATIVE 394
Initiative 394 was enacted at the Washington general election of November 3, 1981, in response to cost overruns and construction delays at five nuclear power plants then under simultaneous construction by WPPSS. Initiative 394 applies only to future projects and those projects still under construction as of July 1, 1982, that have exceeded their first official agency budget estimates by more than 200%. All three WPPSS power plants at issue here fall into the latter category.
The heart of the Initiative is contained in section 4. That section provides that no public agency may issue or sell bonds to finance construction or acquisition of any major public energy project “unless it has first obtained authority for the expenditure of the funds to be raised by the sale of such bonds for that project at an election” conducted in accordance with the Initiative. Other provisions of the Initiative require the public agency to hire an independent consultant to prepare a draft cost-effectiveness study, followed by a period of public comment and issuance of a final draft study. The election then is held and voters within the districts encompassed by the agency and its members are entitled to vote. Bonds may not be issued in excess of the amounts of funds authorized by the voters and, of course, if the proposal is voted down no bonds may issue at all.
The Initiative alters WPPSS’s functioning in two ways. Prior to the Initiative’s enactment there was no explicit requirement that WPPSS obtain cost-effectiveness studies for its projects. Arguably, however, such studies were encompassed in the “Prudent Utility Practice” standard which governed both WPPSS’s operation and BPA’s limited oversight of WPPSS. A more important change arises from the fact that the only pre-initiative statute governing WPPSS’ bond issuing authority was Wash. Rev.Code § 43.52.3411. That statute authorized WPPSS to issue bonds payable from the revenues of the utility projects whenever its board deemed it advisable. Initiative 394 accordingly imposes a substantial new hurdle to the sale of bonds essential to WPPSS’ completion of the three plants. .Plaintiffs argue that by conditioning WPPSS’s ability to issue bonds on the outcome of a popular referendum, Initiative 394 impermissibly impairs WPPSS’s obligations under the project agreements, the Net .Billing Agreements, and the bond resolutions.
CONTRACTS CLAUSE
Article I, Section 10, Clause 1 of the United States Constitution provides: “No State shall ... pass any ... Law impairing the Obligation of Contracts.... ” To determine whether Initiative 394 violates the contract clause, we must address two major issues. First, we must determine whether the Initiative substantially impairs WPPSS’s contractual obligations to BPA or the bondholders. Second, we must determine whether the Initiative, if it substantially impairs those obligations, is nevertheless justified as a reasonable and necessary exercise of the State’s sovereign power. Allied Structural Steel Co. v. Spannaus, 438 U.S. 234, 98 S.Ct. 2716, 57 L.Ed.2d 727 (1978); United States Trust Co. v. New Jersey, 431 U.S. 1, 97 S.Ct. 1505, 52 L.Ed.2d 92 (1977).
IMPAIRMENT
Defendants argue that Initiative 394 did not substantially impair any of WPPSS’s contractual obligations. Conceding that the Initiative does alter WPPSS’s ability to issue bonds, they contend that the possibility of such an alteration was contemplated at the time the agreements were made. If in fact the contracts in question did allow for such an alteration, then the Initiative does not substantially impair them. See Northwestern Nat’l Life Ins. Co. v. Tahoe Regional Planning Agency, 632 F.2d 104, 106 (9th Cir.1980). We do not agree, however, that the contracts can reasonably be read as contemplating the kind of alteration of WPPSS’s bonding authority effected by Initiative 394.
Defendants point to the provision of the bond resolutions in which WPPSS covenanted to “take all lawful measures required to issue and sell” the additional bonds (emphasis added). They also rely on the provision of the project agreements that promises that WPPSS will use its best efforts to sell bonds to finance completion provided “that in each case such Projects Bonds may then be legally issued and sold” (emphasis added). We realize that the defendants’ arguments, particularly with regard to the latter provision, are not without force. We nevertheless believe that both provisions may be read most reasonably as promises of compliance with regular and broadly applicable bonding requirements of the state for the issuance of bonds. It is less reasonable to interpret them as leave for the state to impose a more narrowly targeted requirement of success in a popular referendum as a condition for further bonding authority by WPPSS.
We confess that our conclusion is influenced by what we perceive as the central aspect of the agreements before us. The contracting parties agreed at the outset that additional power resources were needed. The object of the agreements was to provide those resources. WPPSS recognized the importance of completion to BPA and the bondholders, and BPA agreed in effect to repay the bonds regardless of whether the plants were completed. The bondholders therefore had a promise of payment even without the plants, but completion of the plants unquestionably will make more energy available to finance repayment. WPPSS agreed to finish the piants with all reasonable diligence, which it clearly cannot do without issuing more bonds. In a very practical sense, the promise of completion was the only consideration BPA received for agreeing to pay the construction and financing costs. Its entitlement to the energy produced — BPA’s sole benefit from the entire set of agreements— is rendered valueless if the plants are not completed. WPPSS’s ability to issue additional bonds was accordingly the centerpiece of the entire arrangement. We have difficulty reading the provisions of the contracts in a way that permits destruction of their primary purpose. A promise in a contract that gives one party the power “to deny or change the effect of the promise, is an absurdity.” United States Trust Co. v. New Jersey, 431 U.S. at 25 n. 23, 97 S.Ct. at 1519 n. 23 (quoting Murray v. Charleston, 96 U.S. 432, 445, 24 L.Ed. 760 (1877)).
Defendants also contend that there is no impairment because of Wash.Rev.Code § 43.52.3411 (“Section 3411”), the statute that authorizes agencies such as WPPSS to issue bonds. That statute provides that, with one exception not relevant here, “all the provisions of law as now or hereafter in effect relating to revenue bonds or warrants of public utility districts shall apply to revenue bonds or warrants issued by the joint operating agency including, without limitation, provisions relating to: ... the time and place of payment of such bonds or warrants and the interest rate or rates thereon; the covenants that may be contained therein and the effect thereof....” Defendants focus on the words “now or hereafter” and contend that Section 3411 constitutes a reservation of state authority to make the changes imposed by Initiative 394. In our view, this contention overreads the statute.
The meaning and application of a state statute that is challenged as violating the contracts clause is a question of federal law. Coombes v. Getz, 285 U.S. 434, 441, 52 S.Ct. 435, 436, 76 L.Ed. 866 (1932); see American Toll Bridge Co. v. Railroad Comm’n, 307 U.S. 486, 490, 59 S.Ct. 948, 951, 83 L.Ed. 1414 (1939); Rapid Transit Corp. v. New York, 303 U.S. 573, 593, 58 S.Ct. 721, 731, 82 L.Ed. 1024 (1938). That rule necessarily extends to Section 3411 insofar as that statute dictates the application of Initiative 394 to the contracts in issue here.
The provisions of Section 3411 relied upon by defendants to establish a reservation of state power to modify contracts are ambiguous. The State has on occasion enacted statutes which explicitly exempted or subjected bond issues to the effects of subsequently enacted laws. Compare Wash.Rev.Code § 53.34.120 (state covenants not to limit or alter vested rights of certain specified bondholders) with Wash.Const. art. XII, § 1 (all laws relating to corporations may be altered at any time). Defendants argue that any ambiguity in the provisions at issue here should be resolved in favor of the State. We cannot agree. Although contracts which affect the public interest are interpreted so as to favor the State, when the State borrows money .the State is not acting entirely in its sovereign capacity. Thus, insofar as the purely financial aspects of the agreement are concerned, reservations are not to be lightly inferred. United States Trust v. New Jersey, 431 U.S. at 25 n. 23, 97 S.Ct. at 1519 n. 23; see Restatement (Second) of Contracts § 207 comment a.
We conclude that the effect of Section 3411 simply is to render applicable to future bond issues the requirements of state law then in existence so long as imposition of those requirements does not modify pre-existing contracts. We do not read it as a reservation of power applicable to the contracts at issue here. While the State unquestionably may reserve power to change some aspects of existing contracts, see Atlanta v. Metropolitan Atlanta Rapid Transit Authority, 636 F.2d 1084 (5th Cir.1981), the State has not specifically done so here. Moreover, to interpret Section 3411 as a broad reservation of power is not permissible when the statute is viewed in light of the contract clause. For example, Section 3411 could not sensibly be construed to permit the State to change by law the interest rates or redemption schedules applicable to previously issued bonds. See United States Trust Co. v. New Jersey, supra, 431 U.S. at 27-28, 97 S.Ct. at 1520-21. Section 3411 therefore cannot be applied as broadly and retrospectively as its literal language may suggest. It is a closer question whether it can be applied to allow the State to restrict a future bond issue in a manner contrary to the provisions of preexisting contracts. We conclude that it cannot be so applied, at least in the direction dictated by Initiative 394. Section 3411 may doubtless apply many of the technical requirements of the State’s bond laws to bonds issued by WPPSS in the future. Initiative 394 may itself be applied, so far as the contract clause is concerned, to future bond issues for projects not subject to the contractual constraints binding the projects in issue here. But Section 3411 does not, in our view, reserve to the State the power to apply Initiative 394 to the additional bond issues of WPPSS that were promised in the contracts before us, and that remain central to the accomplishment of their purpose.
Defendants argue that Initiative 394 did not simply affect financial obligations. They contend that it altered the structure of governance of one of the State’s political subdivisions, an act inherently within the sovereign’s power. The Initiative did alter the type of control the electorate could exercise over WPPSS. But the voters always had ultimate control, direct or indirect, over WPPSS by the power to elect its board. The Initiative simply altered the manner in which WPPSS can raise money. The new method does involve voter approval, but it is still the method of financing that is being altered.
Defendants also argue that a municipal corporation, such as WPPSS, remains subject to state regulation and cannot be allowed to contract itself out from state control. That argument misperceives the nature of the restriction on state action imposed by the contract clause. As a creature of the state a municipal corporation derives its power from the legislature. Once having granted certain powers to a municipal corporation, which in turn enters into binding contracts with third parties who have relied on the existence of those powers, the legislature (or here, the electorate) is not free to alter the corporation’s ability to perform. Louisiana ex rel. Hubert v. New Orleans, 215 U.S. 170, 175-78, 30 S.Ct. 40, 42-43, 54 L.Ed. 144 (1909); Wolff v. New Orleans, 103 U.S. 358, 365-68, 26 L.Ed. 395 (1880); see United States Trust, 431 U.S. at 24 n. 22, 97 S.Ct. at 1519 n. 22. WPPSS remains subject to state regulation, but if the State significantly alters WPPSS’s ability to perform previously negotiated agreements, it impairs obligations of contract.
Since we have concluded that neither the contracts themselves nor Wash. Rev.Code 43.52.3411 permit the state to modify the contractual obligations along the lines dictated by Initiative 394, we must next address the question whether Initiative 394 constitutes a substantial impairment of those obligations. It largely follows from what has already been said that the impairment is substantial. The issuance of additional bonds by WPPSS is essential to the performance of its contracts; it is particularly crucial to the obligation running from WPPSS to BPA. Pri- or to Initiative 394, the issuance of additional bonds was within the discretion of the board of directors of WPPSS. BPA had the right to ensure that the discretion was exercised in accordance with Prudent Utility Practice. An abandonment of the project was consequently likely to occur only if events caused such abandonment to be in BPA’s interests as a distributor of power. Initiative 394 adds a new and unpredictable element. Bonds necessary for completion of the projects can only be issued after approval of the proposed expenditure of the proceeds by the electorate at a popular referendum. No standard can be imposed on the electorate in exercising its decision, nor can it be subjected to any review. It can reject the proposal for any reason or no reason. The addition of the referendum requirement is, we conclude, a severe impairment that defeats the expectations of the parties under their contracts. See Allied Structural Steel Co. v. Spannaus, 438 U.S. 234, 98 S.Ct. 2716, 57 L.Ed.2d 727 (1978).
Nor do we view Initiative 394 as an insubstantial impairment prior to the time that the voters actually turn down a proposed bond issue. Defendants argue that the district court made inadequate findings to support its conclusion that the very existence of Initiative 394 injured plaintiffs by lowering the market value of WPPSS bonds and thereby increasing the costs of construction. They also contend that there was no real loss to the bondholders because they still have BPA’s promise of payment. We need not fix with certainty, however, any loss in value of bonds caused by the existence of Initiative 394. It is sufficient that the additional requirements imposed by Initiative 394 impair the ability of WPPSS to carry out its covenants in the manner originally promised. United States Trust Co. v. New Jersey, supra, is conclusive on that point. In that case, the Supreme Court held that the fact that the bondholders’ security provision impaired by the state was of little value was irrelevant to the constitutional determination. Absent the payment of just compensation, the repeal of a particular security provision impaired an obligation of contract even though the bondholders might have retained other contractual security. 431 U.S. at 18-19, 97 S.Ct. at 1515-16. As in United States Trust, the covenants at issue here were not superfluous. Plaintiffs were promised financing of the plants to completion, subject only to contractually specified conditions. That promise was clearly an inducement to contract. Cf. El Paso v. Simmons, 379 U.S. 497, 85 S.Ct. 577, 13 L.Ed.2d 446 (1965) (unlimited redemption period could be changed by statute to five year redemption period when original provision was not an inducement to contract). Plaintiffs were not compensated for modification of that central provision. Initiative 394 impairs the obligation by imposing the election requirement, and that requirement is a present injury not dependent on the outcome of such an election.
JUSTIFICATION
Having concluded that Initiative 394 does impair WPPSS’s contractual obligations, we must determine whether the degree of that impairment is both reasonable and necessary to achieve a valid state interest. United States Trust, supra 431 U.S. at 29, 97 S.Ct. at 1521. Our determination whether the State’s action is justified is affected by the fact that WPPSS is itself a political subdivision of the State, made up of other political subdivisions. We cannot view the contracts between WPPSS and the plaintiffs as those between private parties. Because the State is a contracting party, we give less deference to its claims of justification for impairment. Id. at 25-26, 97 S.Ct. at 1519-20.
We emphasize that the State has not attempted to justify Initiative 394 as an exercise of the State’s sovereign prerogative to protect the health and safety of its citizens. Considerations of health and safety did not give rise to the Initiative, and are not offered in justification of it. Instead, defendants propose five public purposes served by Initiative 394. Essentially the five reduce to three related goals: ensuring WPPSS’s public accountability; ensuring public accountability in all decisions affecting the energy and economic future of the State; and protecting the State’s finances by placing controls on WPPSS’s spending.
Achievement of public accountability is certainly a legitimate public purpose. It is not clear, however, that Initiative 394 is either reasonable or necessary to achieve it. The Initiative was not necessary to give the public control over either WPPSS or energy and economic decision-making generally. Through the election process, the voters have always had direct or indirect control of both. At least one alternative method of achieving public accountability has actually been adopted. See, e.g., 1982 Wash.Laws (1st Ex.Sess.) ch. 43 (requiring joint operating agencies to form executive boards with outside membership). Others remain available. Cost effectiveness studies can be required without being tied to an election requirement for the issuance of bonds previously promised. The existence of such alternative means of achieving accountability cast doubt on the validity of Initiative 394’s application to the obligations in issue here. See United States Trust Co., 431 U.S. at 29-31 & n. 28, 97 S.Ct. at 1521-22 & n. 28. Cf. El Paso v. Simmons, 379 U.S. 497, 516-17, 85 S.Ct. 577, 587-88,13 L.Ed.2d 446 (1965) (retroactive application “quite clearly necessary” to achieve state’s purpose.).
Limitation of public spending is also certainly a legitimate state goal, but its weight is diminished in contract clause analysis when the state limits its own previous financial commitments. As the Supreme Court declared in United States Trust:
[C]omplete deference to a legislative assessment of reasonableness and necessity is not appropriate because the State’s self-interest is at stake. A governmental entity can always find a use for extra money, especially when taxes do not have to be raised. If a State could reduce its financial obligations whenever it wanted to spend the money for what it regarded as an important public purpose, the Contracts Clause would provide no protection at all.
431 U.S. at 26, 97 S.Ct. at 1519 (footnote omitted). These words are no less applicable when the purpose of an impairment is merely saving money, as here, rather than spending it for a broad public purpose (mass transportation) as in United States Trust. Reduced to bare essentials, the State’s financial argument in support of Initiative 394 is that completion of the projects as contracted by WPPSS had become too expensive.
Even in the light of the severe cost overruns and lengthy construction delays associated with the WPPSS projects, Initiative 394 does not appear to be a reasonable measure if applied to the contracts before us. The Initiative seems somewhat narrowly targeted to modify those very contracts, rather than being part of a broad public program with incidental impairing effects. In Allied Structural Steel Co. v. Spannaus, 438 U.S. 234, 98 S.Ct. 2716, 57 L.Ed.2d 727 (1978), the Supreme Court invalidated a statute that altered the pension plan liabilities of employers who either terminated a pension plan or closed a Minnesota office. The statute, intended to protect discharged workers, essentially required the employer to assure all employees of at least ten years standing a full pension regardless of the vesting provisions of any existing plan. Stressing the fact that the severe disruption of contractual obligations was unexpected and served only a relatively narrow public interest, the Court held that not even the presumption, favoring legislative judgments as to necessity and reasonableness could save the act.
The Spannaus Court contrasted the facts of Home Building & Loan Ass’n. v. Blaisdell, 290 U.S. 398, 54 S.Ct. 231, 78 L.Ed. 413 (1934), in which a temporary provision extending mortgage redemption periods was upheld. That emergency measure, enacted in response to the economic conditions of the 1930’s, protected a basic societal interest rather than a favored group. Moreover, it imposed reasonable conditions, many of which were designed to protect the creditors whose rights were affected.
Defendants argue that unlike Spannaus this case involves an area historically regulated by the State and that state regulation altering contractual obligations was therefore foreseeable. It is true that the State has historically regulated power production and the operation of its political subdivisions. The State’s regulation is not necessarily more foreseeable, however, than state regulation of a port authority and mass transportation involved in United States Trust, supra, where the State’s impairment of bond obligations was nevertheless struck down.
Defendants argue that the cost overruns and delays which prompted passage of the Initiative were of such a magnitude as to compare with the economic conditions present in Blaisdell. We cannot agree. The concerns addressed by the Initiative were not unknown in the early 1970’s. In Blaisdell the State, acting in its sovereign capacity adopted a balanced and temporary' measure designed to protect broad societal interests which were threatened by the unforeseeable collapse of the world economy. In contrast, Initiative 394 sacrifices the interest of parties to contracts with the State’s subdivision in order to protect the State’s own finances. We cannot conclude that this imposed sacrifice was reasonable in light of changed circumstances. Compare United States Trust, 431 U.S. at 31-32, 97 S.Ct. at 1522-23 with El Paso v. Simmons, 379 U.S. at 515, 85 S.Ct. at 587.
We therefore hold that the contract clause of the United States Constitution prohibits the application of Initiative 394 to the three WPPSS projects at issue in this appeal. Our disposition makes it unnecessary to address other grounds urged by plaintiffs in support of the district court’s decision. The judgment of the district court is AFFIRMED.
. Morgan Guaranty Trust Company of New York is bond fund trustee for bondholders of Project 1. Continental Illinois National Bank and Trust Company of Chicago is trustee for bondholders of Project 2. Seattle-First National Bank is trustee for bondholders of Project 3.
. WPPSS was created in 1957 pursuant to Wash.Rev.Code § 43.52.360 which provides, in part:
Any two or more cities or public utility districts or combinations thereof may form an operating agency (herein sometimes called joint operating agency) for the purpose of acquiring, constructing, operating and owning plants, systems and other facilities and extensions thereof, for the generation and/or transmission of electric energy and power. Each such agency shall be a municipal corporation of the state of Washington with the right to sue and be sued in its own name.
. There is also an ownership agreement for project Number 3.
. “Prudent Utility Practice” is defined in the project agreements as:
any of the practices, methods and acts, which, in the exercise of reasonable judgment in light of the facts (including but not limited to practices, methods and acts engaged in or approved by a significant portion of the electrical utility industry prior thereto) known at the time the decision was made, would have been expected to ¿ccomplish the desired result at the lowest reasonable cost consistent with reliability, safety and expedition.
Defendants argue that Prudent Utility Practice is a non-standard. The standard is quite flexible. The project agreements further state that “Prudent Utility Practice is not intended to be limited to the optimum practice, method or act, to the exclusion of all others, but rather to be a spectrum of possible practices, methods or acts.” We need not attempt to define its contours. It is sufficient to note that it is the standard to which the parties agreed.
. BPA will receive only 70% of the power from one of the plants (Number 3) at issue here because the remaining 30% is owned by nonparticipants.
. The bond resolutions stated that the bonds were revenue bonds to be paid solely from “income, revenues, receipts and profits derived by the Supply System through the ownership and operation by it of the project.”
. Two additional plants were begun after the three noted earlier. BPA was not involved in those projects and work on them has been halted for the time being.
. The original total estimated cost for all five WPPSS projects was approximately $4 billion. As of May 1981 the estimated total cost for the five projects was $24 billion. The original estimate for the three plants at issue here was $1.9 billion. As of May 1981 the estimated total cost for those three plants was $12 billion.
. The major provisions of Initiative 394 are the following:
New Section. Sec. 2.
The purpose of this chapter is to provide a mechanism for citizen review and approval of proposed financing for major public energy projects. The development of dependable and economic energy sources is of paramount importance to the citizens of the state, who have an interest in insuring that major public energy projects make the best use of limited financial resources. Because the construction of major public energy projects will significantly increase utility rates for all citizens, the people of the state hereby establish a process of voter approval for such projects. New. Section. Sec. 3.
The definitions set forth in this section apply throughout this chapter unless the context clearly requires otherwise.
* * * * * *
(2) “Major public energy project” means a plant or installation capable, or intended to be capable, of generating electricity in an amount greater than two hundred fifty megawatts. Where two or more such plants are located within the same geographic site, each plant shall be considered a major public energy project. An addition to an existing facility is not deemed to be a major energy project unless the addition itself is capable, or intended to be capable, of generating electricity in an amount greater than two hundred fifty megawatts. A project which is under construction on July 1,
Question: In what state or territory was the case first heard?
01. not
02. Alabama
03. Alaska
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. Florida
11. Georgia
12. Hawaii
13. Idaho
14. Illinois
15. Indiana
16. Iowa
17. Kansas
18. Kentucky
19. Louisiana
20. Maine
21. Maryland
22. Massachussets
23. Michigan
24. Minnesota
25. Mississippi
26. Missouri
27. Montana
28. Nebraska
29. Nevada
30. New
31. New
32. New
33. New
34. North
35. North
36. Ohio
37. Oklahoma
38. Oregon
39. Pennsylvania
40. Rhode
41. South
42. South
43. Tennessee
44. Texas
45. Utah
46. Vermont
47. Virginia
48. Washington
49. West
50. Wisconsin
51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer:
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songer_crossapp
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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 whether there were cross appeals from the decision below to the court of appeals that were consolidated in the present case.
CURRIN et al. v. NOURSE et al. In re GENERAL UTILITIES CO.
No. 10001.
Circuit Court of Appeals, Eighth Circuit.
Nov. 26, 1934.
William B. Bostian and Floyd E. Jacobs, both of Kansas City, Mo. (James A. McDermott, of Winfield, Kan., and Horace D. Payne and Thomas E. Deacy, both of Kansas City, Mo., on the brief), for appellants.
Boy B. Thomson, of Kansas City, Mo. (I. P. Ryland, Paul R. Stinson, Arthur Mag, and Robert E. Rosenwald, all of Kansas City, Mo., on the brief), for appellee Stem Bros. Inv. Co.
William G. Boatright, of Kansas City. Mo. (Ringolsky, Boatright & Jacobs, of Kansas City, Mo., on the brief), for appellee Brown-Strauss Corporation.
Ben L. Shifrin and Taylor, Mayer & Shifrin, all of St. Louis, Mo., for appellee Jacob Lasky.
Louis Mayer and Irl B. Rosenblum, both of St. Louis, Mo., for appellees J. J. Ruben-stein and United Bank & Trust Co.
Frank P. Barker and. Winger, Reeder, Barker & Hazard, all of Kansas City, Mo., for appellee Wheeler Kelly Hagney Trust Co.
Forest W. Hanna, of Kansas City, Mo., for appellees Allen E. Lonston & Co. et al.
James B. Nourse, of Kansas City, Mo., trustee, pro se.
Before .GARDNER, SANBORN, and WOODROUGH, Circuit Judges.
Rehearing denied Jan. 12, 1935.
WOODROUGH, Circuit Judge.
This is an appeal by certain unsecured creditors of the bankrupt General Utilities Company from an order confirming the sale of the assets of the bankrupt estate to Stern Bros. Investment Company. The sale in question was made February 8,1933, and was on that date confirmed b'y the referee. A petition for review was filed and on March 21, 1933, the District Court confirmed the sale (Judge Otis sitting). Thereafter an appeal to this court was taken from the order of confirmation by the 'same parties who now prosecute the present appeal. On consideration of the former appeal, this court expressed no opinion as to the validity of the sale, but reached the conclusion that there had been an abuse of power by the referee in that he had denied the unsecured creditors an opportunity to be heard fully upon the question of the approval of the sale, and that the parties should be restored to the position which they occupied prior to the confirmation of the sale by the referee on February 8, 1933. The ease was remanded with directions that the unsecured creditors be given a full and fair opportunity to be heard upon the question of the confirmation of the sale. (C. C. A.) 66 F.(2d) 137. After the remand, notice of hearing on the matter of confirmation was given and hearings were had before the referee extending over several days, in the course of which the trus-tee was examined and testified at great length and much testimony claimed to have a bearing on the. question of the confirmation of the sale was offered and heard by the referee. After the hearing before the referee and on September 15,1933, the referee again ordered confirmation of the sale to Stern Bros. Investment Company, finding that the sale was in all respects fairly made and for the best price and upon the best terms available to the trustee. After the referee had for the seeond time confirmed the sale to Stern Bros. Investment Company, the unsecured creditors petitioned the District Court for review and also applied for a re-reference to the referee on the grounds that the referee had failed to make a proper summary of the evidence and for the purpose of correcting or supplementing the record. It was also represented to the District Court, among other things, that since the date of the hearing, the petitioners had caused á certain report and valuation of the properties, which was in the course of preparation during the hearing before the referee, to be finally completed, and that “one McKee of Brokaw, Dixon, Garner & McKee, geologists and engineers enjoying a national reputation, i; * * stated that * *■ * a cash bid for these properties would be made upon the report and valuation” and “that said McKee was of the firm opinion that the said bid would be a cash bid, would be a cash offer substantially greater than the bid of Stern Brothers Investment Company.” It was also alleged that “an offer to purchase has been prepared and it is desired to submit this to the referee on re-reference of this cause. This offer to purchase is for a cash consideration of $300,000.00 * * * it is signed by George MeBlair.”’ On the hearing before District Judge Otis, he found that the referee had sent up with his certificate to the District Court a complete transcript of all the testimony taken at the hearing before him, including approximately 1,000 pages of testimony, but acceded to the complaint that the referee had not certified to the judge a summary of the evidence relating to the questions presented in conformity with General Order in Bankruptcy 27 (11 USCA § 53). The court ordered the referee to make summaries in accordance with the rules, and also ordered the referee to hear evidence on the question whether there was then any prospective bidder ready to make a better cash offer than that of the Stem Bros. Investment Company4
Upon the re-reference so ordered and on December 20, 1933, a further hearing was had before the referee, at which hearing George McBlair was the only person appearing for the purpose of making any offer or proposal to bid. He filed a written document entitled “Offer of George McBlair to purchase property of General Utilities,” which was analyzed and compared by the referee and found to be no better bid than that of Stern Bros. Investment Company. On December 23, 1923, after this hearing before the referee, George McBlair filed an affidavit of prejudice in the District Court charging that Judge Otis had personal bias and prejudice against him and the unsecured creditors for whom he was attorney in fact, and, thereafter, on December 26, 1933, an affidavit in very similar terms and for the same purpose was filed by one U. S. Hannum, a general creditor of the estate in the sum of $2,000.
Motions to strike the affidavits as insufficient in law were sustained and Judge Otis reviewed the order of the referee confirming the sale for the second time and sustained the findings and conclusions of the referee and confirmed the sale. On this appeal from the. final order of Judge Otis it is presented that there was error in striking the affidavits of bias and prejudice and in the refusal of Judge Otis to hear additional oral testimony offered at the hearing upon the petition to review the referee’s order of confirmation and the exceptions and objections taken to the action of the referee and that there was error in refusing to sustain the various exceptions and objections to the action of the referee and his confirmation of sale.
We consider first the question whether Judge Otis properly retained jurisdiction of the case. It appears that each of the affidavits of bias and prejudice presented to him contained what purports to be a certificate of counsel signed by one Horace D. Payne, describing himself therein as counsel of record for the affiant to the effect that “he prepared the document and is informed as to the proceedings,” and he certifies “that the affidavit and application for the designation of another judge are made in good faith and not for the purpose of delay or hindrance of the proceedings.” At the hearing of the motions to strike the affidavits, testimony was offered that the said Horace D. Payne was not a member of the bar of the District Court for the Western District of Missouri on or before the times when the affidavits and certificates were made or filed and, thereupon, the said Horace D. Payne, being present before the court, admitted that he had never been enrolled as such member of the bar of the federal court for the Western District of Missouri at the times the affidavits and the certificates were made or filed. The section of the applicable statute (section 21 Judicial Code, title 28 USCA § 25) provides that “no such affidavit [an affidavit of bias and prejudice] shall be filed unless accompanied by a certificate of counsel of ‘record that such affidavit and application are made in good faith.” The phrase “counsel of record” in the statute means an attorney at law admitted to the bar of the court who has been counsel of record in the case. One who is not a member of the bar cannot be counsel of record even though the record on its face may show he had undertaken to appear as counsel. Since Mr. Payne was not on the date of the filing of either of the affidavits a member of the bar of the court, he could not then or at any earlier time have been counsel of record in the ease for either of the affiants. The purpose of the provision of the statute requiring certificate of good faith by counsel of record is that the court may be assured that the affidavit is made in good faith through the certificate to that effect made by one who is a sworn officer of the court, regularly admitted as an attorney to practice at the bar of the court. The requirement is not technical. It is one of the essential requirements of the statute. As the affidavits were not certified to be made in good faith by counsel of record, the motions to strike them for insufficiency in law were properly sustained and Judge Otis “having,” as he stated, “no consciousness whatever of any prejudice against any of the parties or in favor of any,” the duty to continue with the hearing oil the matter of confirmation of the sale remained upon Judge Otis. Klose v. United States (C. C. A. 8) 49 F.(2d) 177; Cuddy v. Otis (C. C. A. 8) 33 F.(2d) 577; Morse v. Lewis (C. C. A. 4) 54 F.(2d) 1027; Saunders v. Piggly Wiggly Corp. (D. C.) 1 F.(2d) 582; Benedict v. Seiberling (D. C.) 17 F.(2d) 831; Ex parte Fairbank Co. (D. C.) 194 F. 978.
Passing to the matter of the confirmation of the sale, we take up the assignments of error based upon the claim that the trial court erroneously refused to receive testimony offered in opposition to the confirmation of the sale at the hearing had on February 2, 1934. The record discloses that on that date the ease came on for hearing before the District Judge on the report of the referee confirming sale and the exceptions thereto, and the court declared that he would not then accord a trial de novo nor receive further evidence. Some forty-one separately stated and numbered offers to prove by oral testimony were thereupon made, and refused by the court.
It appears from the record, however, that before the ease reached this point when the cotfrt declared that he .would not receive evidence, the referee had accorded all parties interested in the sale or purchase of bankrupt’s assets full opportunity to be heard; that the unsecured creditors had availed themselves of the opportunity; and that a .thousand pages of testimony had been taken; all of which was before the trial court at the hearing on the report of the referee and the exceptions. It also appears that the trial court had heard applications for re-reference and that the referee, upon such re-references, had heard additional testimony.
The offers to prove are before us and have been examined. The witnesses from whom the oral evidence was proposed to be elicited were the trustee in bankruptcy and one Anderson, who had been long connected with the bankrupt estate, both being witnesses who had been at all times available to the unsecured creditors, the trustee himself having been on the witness stand for several days. We find nothing in the circumstances under which the proposed testimony was obtained or in the testimony itself to- require the trial court to hear or consider it at the time it was offered. None of it tended to establish that there was any reason to believe that any responsible bidder had been or could be found who would pay more for the assets of the bankrupt than Stern Bros. Investment Company. Although it was the intention of this court, clearly expressed in the former opinion, that all parties should have a right to be heard in respect to confirmation of the sale, it was not intended that the orderly procedure by original trial before the referee with review in the District Court should be abrogated or that the case should in all stages be for trial de novo.
The trial court properly proceeded to pass upon the order of confirmation of sale and the exceptions and objections thereto and the proceedings and evidence certified therewith. None of the assignments of error based upon the refusal to hear the offered testimony at that time is sustained.
As the matter of the bid of George Me-Blair was brought intb the proceedings after the referee had made and reported his second confirmation of sale, we next consider the assignments of error assailing the findings and conclusions concerning that bid and its rejection. The evidence is that Mr. Me-Blair was chairman of a committee constituted to represent a large number of the unsecured creditors of the estate and that he had been very actively concerned in the bankruptcy administration of the estate throughout, and was informed as to the assets of the bankrupt and the conduct of the administration by the receivers and the trustee, including the attempts of the trustee to sell the assets and of various persons to acquire them. The record discloses no bid or proposal from him until he submitted his written offer before the referee on December 20, 1933, more than ten months after the assets had been sold to Stern Bros, and the sale confirmed. The fact that Mr. McBlair was desirous of making a bid was first brought to the trial court’s attention on November 6, 1933, after the referee had confirmed the sale to Stem Bros, the second time on September 18, 1933. The court said:
“The application for re-reference sets out that if a re-reference is granted proof may be made that a substantially ‘larger amount ¿light be realized for the assets of the bankrupt than will be realized under the sale to Stern Bros. Investment Company. A large majority of the general creditors appear to believe that the amount bid by Stern Bros, is inadequate and that the properties are worth much more and can be sold for much more. * * * It is set up in the application for re-reference that a showing can now be made of two really cash offers for the assets of the bankrupt. One of them is described as an offer to purchase for ‘a cash consideration of $300,000.00’ (the McBlair bid). Another is described as a cash bid by one Butterworth of an amount of $350,000.-00. These promised showings are described in the application for re-reference as newly discovered evidence. * ^ * A belated and new cash offer now made might not in any event justify the setting aside of the referee’s order of confirmation; * * * if there is really a prospective bidder who stands ready now to make a cash offer substantially greater than that of Stern Brothers this court desires to know it.”
The order of the court was that the referee should hear such evidence as may be submitted to him tending to prove that substantially larger cash offers for the assets of the bankrupt were made than that made by Stem Bros. Investment Company. Accordingly, re-reference was made and further opportunity to submit bids before the referee was given and McBlair presented his bid. The referee had made the requirement, which we find to be reasonable,, that the amount required to be deposited with proof of any bid should be $50,000 in cash or cer-, titled checks (this sum having also been required as a deposit from other bidders), to be forfeited in case the bidder failed or refused to comply with the terms of his bid in the event of acceptance and confirmation of sale to such bidder. Instead of depositing gueh cash or certified chock as required, Mr. McBlair deposited an assignment of allowed claims against the bankrupt estate of the face amount of $19,800, neither of which claims were cash or the equivalent of cash, and a check for $15,000. The check was conditioned by indorsement that payment was to be made only if, as, and when the offer to purchase by George McBlair is accepted and properties bid upon conveyed to McBlair. The bid of McBlair contained specific reservations of bidder’s right to deposit liens or administrative claims in part payment of the purchase price. It also specifically excepted from inclusion in the offer to purchase parcels of property covered by certain lien claims, some allowed and some then pending allowance. The bidder offered to purchase only a part of the property covered by particular liens and excluded the remainder of the property covered by the same lien in certain instances. The McBlair bid, after reciting that certain credits on aceouht of net earnings of the property should accrue to him on his bid as a result of specifying a certain cut-off date, stated that his information was that such total accruals amounted to $71,000. Mr. McBlair did not offer testimony to establish that net earnings had amounted to such sum and our study of the evidence presented at the hearing on confirmation of sale has satisfied us that the referee is supported in his finding that the bidder’s statements of accruals are greatly in excess of the actual amount. The evidence fully sustains the findings of the referee and the trial court that the proposed offer of George McBlair was insufficient; that it was impracticable to divide the property according to said proposed offer because of overlapping liens without serious loss; that it was not accompanied by sufficient deposit; and that the deposit made by MeBlair with the restrictions placed thereon was insufficient and inadequate to insure performance of his offer to purchase. We are persuaded that no ground for upsetting the sale to Stern Bros. Investment Company was developed in the record by any proceedings had or offers of proof made after the order of confirmation was made by the referee on September 15, 1933.
It is urged through many assignments of error and in the briefs of appellants that the sale of the bankrupt’s assets was not necessary or for the best interests of creditors and it is still urged upon us that the trustee ought to be permitted to continue to operate the business; and that we should take into consideration “the fact that by reason of the economic depression and financial stringency it was difficult, even well-nigh impossible, to obtain a higher cash bid.” We do not find that the question was open at the time of the hearing before the referee in August and September of 1933. On December 22, 1932, the trustee had duly filed his petition for order of sale, specifying in detail the property and assets, in which he presented to the court under oath that the properties of the estate had been rapidly deteriorating in value and required the expenditure of large sums of money to properly develop, maintain, and improve them, and that the continuing operation of the properties by the trustee was rapidly becoming a real hazard to the interests of the creditors of the estate; the properties of the estate had received the widest advertisement for sale; that the trustee was reasonably familiar with all of the prospective buyers at the time; and that the creditors were all thoroughly familiar with the immediate necessity for a new sale; and that the creditors had already made exhaustive and extensive study of the particular properties of the estate and of their present value and that the trustee was of the opinion that the creditors of the estate would be benefited by a sale of said property within a minimum of time-and hy private sale for cash only. The order of the referee made on January 19, 1933, commanding private sale of the assets of the bankrupt, was made at a general meeting of the creditors when there were present the trustee and attorneys Representing the general creditors, and many creditors in person, as well as many lien claimants appearing by respective attorneys and in person, and other parties in interest appearing by attorneys and in person. It was the fourth order to sell made by the referee and it does not appear that any direct attack was ever made upon the finding and order that the property should then be sold at private sale. There is no substantial testimony to show that the order was improvidently made, although it is now argued by appellants that the operations of the properties under court authority have resulted in very large net profits and betterment of the estate (a matter to be later discussed), and therefore that it is not necessary to sell the property. It must be conceded that at the time the sale was ordered the trustee’s verified showing of the necessity to sell was fully acquiesced in by all the appellants and no exception was taken to the showing of the trustee “that said creditors are all thoroughly familiar with the immediate necessity for a new sale.” Our study of the evidence which has been brought up also convinces that the order to sell was necessary and proper.
Other assignments of error are based on the claim that the trustee made the sale to Stern Bros. Investment Company under circumstances amounting to duress or that the sale was not his free and voluntary act. There was some testimony to show that at and for some months prior to the time when the trustee finally appended his signature to the contract he was laboring under extreme difficulties to deliver gas to the town of'Liberty, Mo., his supply of gas having failed ■in severe cold weather, and that, while he was so laboring, a representative of the purchaser told him that if he sold the properties his troubles would be over, or words to that effect. But the trustee’s testimony convinces that his negotiations for the sale to Stern Bros, were conducted by himself and his attorney, Mr. Bundsehu, with the attorneys for Stern Bros, with orderly and businesslike deliberation. He testified:
“I negotiated with Mr. Page (attorney for Stern Brothers) several times and some two or three days prior to the final signing went over and discussed the terms and provisions of the proposed bid with (Mr. Thomson, attorney for Stern Brothers); it seems to me that we reached this kind of understanding, that we all met as near as we could on terms, leaving the amount open, as I recall it; each receded from his position on certain points and maintained his position on other points until a certain form" of contract was obtained; after certain changes were suggested by me and (Mr. Thomson) I wanted a bid of $350,000. Mr. Page was prepared to bid $300,000 including the meter deposits and was not prepared to pay any more; I said I would try $340,-000 as I recall, and then as I recall it we agreed that we couldn’t make a deal, that 1 could go elsewhere and have the fullest good ■will from Stern Brothers and everybody.”
Thereafter the parties again met, inserted the purchase price, and executed the contract according to the terms that had been previously agreed upon. The trustee further testified that he did not allege any fraud in procuring his signature to the contract. There was no testimony whatever of any coercion or duress practiced by the purchaser, Stern Bros. Investment Company. ' We conclude on consideration of all the testimony on this matter that the sale was entered into without duress and was the free and voluntary act of the trustee in the exercise of his best judgment.
Further assignments present the complaint that the contract of sale imposes conditions upon the trustee impossible of performance on his part and evidences an option rather than a contract of sale. This contention also appears to be without merit. The sale contract is short and no uncertainties or ambiguities are pointed out. It contains a recital .that the properties contracted to be sold are being operated by the seller for the supplying of gas to its various patrons and include certain franchises granted by the cities and towns in which the seller is supplying and distributing gas and certain gas purchase contracts, a list being attached. The seller represented that all said franchises and gas purchase contracts were then in full force and effect and it was provided that if any of the said franchises or gas purchase contracts was, in fact, then ineffective, or in case a party thereto should' challenge the validity, sufficiency, or present operative force thereof, the buyer might, at its option, at any time prior to the final closing date of the contract terminate the contract. This condition was not different in substance and effect from the customary reservation to the buyer of a short time to satisfy himself of the validity of title offered him. At the time of the hearing on confirmation before the referee, the purchaser, through its attorney, declared itself satisfied as to the condition of the franchises and gas purchase contracts referred to, and waived anything further with respect to their acceptance. The sales contract also contains the provision that the contract was conditioned upon the ability of the buyer to procure the approval of the Public Service Commissions of the state of Missouri and of the state of Kansas of the purchase of said properties, and the continued operation thereof by the buyer or its designee and assignee as the buyer may prefer. The properties involved in the sale constitute public utilities in the states of Missouri and Kansas ■which, under the laws of those states, are subject as to sale and operation to jurisdiction of the Public Service Commissions. This provision of the contract of sale is a reasonable and proper one, having been included in practically all of the offers and proposals made to the trustee. Procuring the authority for such a purchase from the Public Service Commissions of these states is •merely a preliminary though necessary step under the laws of these states to the acquisition of such properties. The evidence is that the Public Service Commission in Kansas has made the necessary record of approval to the nominee of Stern Bros. Investment Company and that the Public Service Commission of Missouri is merely waiting final confirmation, of the sale before it takes action. The •contract between the trustee and Stern Bros. Investment Company is not an option but a contract of sale and obliges the purchaser to receive and pay for the property conditioned now solely upon the approval by the state authorities referred to.
Under other assignments appellants contend that the Stem Bros. Investment Company bid was not the best bid. In this connection the several offers and the efforts which have been made by C. O. Moore to acquire the property are elaborately discussed. As stated in our former opinion, Mr. Moore was a successful bidder for the property under the second order of sale and deposited $100,-000 with his bid. He defaulted on his contract and default was taken against him and the sale that had been made to him was set aside. Since then, both before and after the sale to Stem Bros., he has endeavored to h'ave his original bid reinstated or to become the purchaser under new offers or bids. The record satisfies that each of his proposals and offers has been given careful hearing and consideration, but the evidence fully supports the final conclusion of the referee and of the trial court that Mr. Moore was not in financial position to buy the properties. There is no claim that he has money of his own to buy them with and he declined at a meeting of creditors before the referee to state upon what his expectations of getting the money in the future were based. He made disclosure to the referee, upon which disclosure the referee found without any contradiction in the record, that “iti is very apparent from Mr. Moore’s own statement that he does not now have any possible commitments of reasonably good prospects in the future out of which he will get his securities to carry out his contract within the time contemplated.” There is no ground shown by the evidence to expect a better sale to Moore than has been made to Stern Bros. Investment Company.
At the hearing on confirmation before the referee, the trustee testified that with the exception of Moore and Butterworth, he had no other firm bids for the properties. Though we do not find any serious contention by appellants that the Butterworth bid was a better bid than that of Stern Bros., or that the properties should be sold to Butterworth, we have considered the bid and the circumstances surrounding it. It included a scheme for the organization of a corporation which would own and operate the properties and which would issue securities, and a condition of the bid was that the Public Service Commissions should approve the issuance of the securities. Furthermore, it was made after the trustee had closed the sale to Stem Bros. We think the referee rightly analyzed and compared the bid with others and properly rejected it.
The trustee produced at the hearing on confirmation a long list of those he deemed to be prospective purchasers of the properties and he was examined and testified as to the offers and bids that he had received. It is evident from the record that the trustee constantly endeavored to' find purchasers for the properties, and he testified: “I have tried every day to get purchasers.”
The record convinces that not only has no better bid than that of Stern Bros, been obtained before the hearing on the confirmation in August and September of 1933, but that in spite of the utmost efforts that were afterwards made, no better bid has been obtainable.
Appellants further argue that the sale to Stern Bros. Investment Company was made at a price so grossly inadequate in view of the real value of the property that it should be set aside. It is contended that the operation of the properties under the supervision of the court has produced very large net profits; that “the property, during the financial emergency and economic depression weathered the storm with decisive economic strength”; and that its value has been greatly enhanced by additions and betterments. The record does not bear out the contentions. It does not contain any full or complete profit and loss accounting of the business carried on by the receivers and the trustee. The income tax 'return of the estate for the year ending December 31, 1932, immediately prior to the sale of the property to Stern Bros., disclosed no net income for taxation, but a loss of some $13,000. It is said that these figures were arrived at by deducting $34,365.71 for depletion and depreciation and that such deduction, although proper, should not be made in considering the point contended for. But there is convincing testimony of depletion of gas wells under the trustee’s operation and of losses and burdens from inability to deliver gas and it is noted that in the income tax return some undetermined court costs and allowances were not included. It is stated in the brief of appellants that “total allowances, fees and costs in this ease will approximate $150,000, additional referee and trustee fees, which is in the near neighborhood of the price to be paid for this estate by the alleged purchaser.” We do not find these figures in the record nor any other final computation of such items, but do not doubt that the total of the amounts referred to will reach a large sum. In the argument that the properties were being profitably operated, isolated months of operation following the cut-off date of November 21, 1932, are pointed to as being very profitable, but the account is not fully made up and the uncertain- costs and allowances are left out. We are constrained to note also the testimony of the trustee “that he could not pay all of the taxes that accrued since he had been trustee on all the properties from the cash that he had on hand and still continue to operate.” He says, “Give me freedom of the properties with the 'right to liquidate certain property, I could pay, I don’t mean today, all the taxes amounting to $18,-000, on all properties, which include the 1933 taxes.” Without going into the minutia of the evidence, we are not persuaded that there can be found in any showing as to great net earnings of the properties under the direction of the court, any substantial proof that the sale to Stern Bros, was at a grossly ihadequate price.
In the early stage of this bankruptcy, earnest endeavor was made to effect composition with creditors. The plan was to organize a corporation which would issue stocks, common and preferred, and bonds to be underwritten and sold to the public. The composition failed, but it illustrates the kind of financing to which it was thought the utility properties of the bankrupt adapted themselves. The possibilities of such financing attracted interest and attempts to buy from persons who did not have the money themselves, and a heavy responsibility was imposed upon the trustee and referee, shared by the trial court, to weigh the proposals, offers, and bids in selecting the best for acceptance. Despite the clash of interests in this long litigation, no charges of bad faith are made against the trustee or that he failed to do his honest best to get the best possible bid or in closing with the purchaser. On the question of the real value of the properties, therefore, and what they ought to sell for, we. attach importance to the sworn showing and the testimony of the trustee. When he petitioned the court for an order of sale in December of 1932, he suggested that an upset price of $300,000 be set by the court, which shows he must have believed that such price, though doubtless less than he hoped to get, was not “grossly inadequate.” He coupled with the suggestion the condition that the cut-off date should be November 21, 1933, and that the purchaser should assume payment of the meter deposits, exactly as was specified in the sale to Stern Bros. Furthermore, the suggestion of the upset price brought the belief of the trustee directly home to the knowledge of all of the appellants herein, and they acquiesced in the further order of sale without protest. Also the sworn statement of the referee, on making the sale, that he had used reasonable diligence to sell the properties and that in his opinion the sale to Stem Bros, was the best cash offer that he was able to obtain, persuade that such was his belief at the time. A point is made of the fact that when the trustee was called as a witness at the hearing on confirmation before the referee in August and September of 1933, more than six months after he had made his sworn return, he refused to recommend confirmation of the sale. He did not deny that he had made every reasonable effort to sell the properties at the best possible price, nor that the Stern Bros.’ bid was the best that he had been able to obtain. Wo think his testimony reaffirms his sworn return as to those vital matters. But it was his thought that the responsibility for confirmation or refusal to confirm the sale rested upon the court and not on him, and his attitude was that if a better deal for the creditors c-ould be had, he would be for it, he wanted to hear the evidence. His testimony also reflects that he then thought that if ho could be continued in control and operation of the property, he could ultimately work out more for the creditors. On this basis, he would not recommend the confirmation of the sale. Such hopes, however, developed so long after sale, were not controlling upon the court.
Appraisals have been made of the properties reflecting a much greater value than that obtained on the sale. It is undoubtedly true, as stated by Judge Otis in his opinion of November 22, 1933, that “a large majority of the general creditors appear to believe that the amount bid by Stern Brothers is inadequate and that the properties are worth much more and can be sold for much more,” but such beliefs, however honest, as well as the opinions of expert engineers and appraisers, avail nothing against the stern fact that a better bid was not to be had.
The trustee in bankruptcy has not joined in this appeal, but made a statement at the oral argument and filed a brief. He urges, among other things, that this court should take into consideration the question whether Mr. C. O. Moore lias any claim upon the $100,000 which he deposited to secure the bid made by him in July of 1932. Consideration of the same question is also asked for by appellants and claimed by them to be material to our determination of the appeal. Mr. Moore is not a party to this appeal and the court declines to comment upon the matter. We find that the question whether Mr. Moore does or does not have such a claim is without bearing on the question whether the sale to Stern Bros. Investment Company should bo confirmed.
The assignments of error herein cover some 38 pages of the brief and it has not been possible within the compass of an opinion to discuss them individually. They are not in compliance with the requirements of rule 11 of this court. Though it is undisputed that the findings and conclusions of the trial court fully sustain its judgment, errors are not assigned separately to the particular findings or conclusions, as required, but the assignments are laid in the form of arguments and reasons addressed to this court. But we have considered upon all the grounds argued whether confirmation of sale should be upset, and are persuaded that it should not.
On the whole record, wo are convinced that the parties have been accorded a full hearing as contemplated by law and by our former mandate; that the order commanding the sale was valid; that the sale was fairly made to the best obtainable bidder; that the contract was in proper form and evidenced a valid and binding sale subject to no unreasonable conditions; that there was no such gross inadequacy of price as would justify upsetting the sale; and that the sale was rightfully confirmed.
The order appealed from is affirmed.
Question: Were there cross appeals from the decision below to the court of appeals that were consolidated in the present case?
A. No
B. Yes
C. Not ascertained
Answer:
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sc_lcdisagreement
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A
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the court opinion mentions that one or more of the members of the court whose decision the Supreme Court reviewed dissented. Focus on whether there exists any statement to this effect in the opinion, for example "divided," "dissented," "disagreed," "split.". A reference, without more, to the "majority" or "plurality" does not necessarily evidence dissent (the other judges may have concurred). If a case arose on habeas corpus, indicate dissent if either the last federal court or the last state court to review the case contained one. If the highest court with jurisdiction to hear the case declines to do so by a divided vote, indicate dissent. If the lower court denies an en banc petition by a divided vote and the Supreme Court discusses same, indicate dissent.
HERBERT v. LANDO et al.
No. 77-1105.
Argued October 31, 1978
Decided April 18, 1979
White, J., delivered the opinion of the Court, in which Burger, C. J., and BlacKMUN, Powell, RehNQUist, and SteveNs, JJ., joined. Powell, J., filed a concurring opinion, post, p. 177. BreNNAN, J., filed an opinion dissenting in part, post, p. 180. Stewart, J., post, p. 199, and Marshall, J., post, p. 202, filed dissenting opinions.
Jonathan W. Lubell argued the cause for petitioner. With him on the briefs was Mary K. O’Melveny.
Floyd Abrams argued the cause for respondents. With him on the brief were Dean Ringel, Kenneth M. Vittor, Carle-ton G. Eldridge, Jr., and Richard G. Green.
Briefs of amici curiae urging affirmance were filed by Arthur B. Hanson and Frank M. Northam for the American Newspaper Publishers Assn.; and by Dan Paul, Parker D. Thomson, Susan B. Werth, Alan B. Finberg, Corydon B. Dunham, Edgar A. Zingman, Richard M. Schmidt, Jr., Samuel E. Klein, J. Laurent Scharff, Robert C. Lobdell, Erwin G. Krasnow, Robert D. Sack, Gary G. Gerlach, Paul E. Kritzer, James A. Strain, and Robert Haydock for New York Times Co. et al.
Mr. Justice White
delivered the opinion of the Court.
By virtue of the First and Fourteenth Amendments, neither the Federal nor a State Government may make any law “abridging the freedom of speech, or of the press . . . .” The question here is whether those Amendments should be construed to provide further protection for the press when sued for defamation than has hitherto been recognized. More specifically, we are urged to hold for the first time that when a member of the press is alleged to have circulated damaging falsehoods and is sued for injury to the plaintiff's reputation, the plaintiff is barred from inquiring into the editorial processes of those responsible for the publication, even though the inquiry would produce evidence material to the proof of a critical element of his cause of action.
I
Petitioner, Anthony Herbert, is a retired Army officer who had extended wartime service in Vietnam and who received widespread media attention in 1969-1970 when he accused his superior officers of covering up reports of atrocities and other war crimes. Three years later, on February 4, 1973, respondent Columbia Broadcasting System, Inc. (CBS), broadcast a report on petitioner and his accusations. The program was produced and edited by respondent Barry Lando and was narrated by respondent Mike Wallace. Lando later published a related article in Atlantic Monthly magazine. Herbert then sued Lando, Wallace, CBS, and Atlantic Monthly for defamation in Federal District Court, basing jurisdiction on diversity of citizenship. In his complaint, Herbert alleged that the program and article falsely and maliciously portrayed him as a liar and a person who had made war-crimes charges to explain his relief from command, and he requested substantial damages for injury to his reputation and to the literary value of a book he had just published recounting his experiences.
Although his cause of action arose under New York State defamation law, Herbert conceded that because he was a “public figure” the First and Fourteenth Amendments precluded recovery absent proof that respondents had published a damaging falsehood “with 'actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” This was the holding of New York Times Co. v. Sullivan, 376 U. S. 254, 280 (1964), with respect to alleged libels of public officials, and extended to “public figures” by Curtis Publishing Co. v. Butts, 388 U. S. 130 (1967). Under this rule, absent knowing falsehood, liability requires proof of reckless disregard for truth, that is, that the defendant “in fact entertained serious doubts as to the truth of his publication.” St. Amant v. Thompson, 390 U. S. 727, 731 (1968). Such “subjective awareness of probable falsity,” Gertz v. Robert Welch, Inc., 418 U. S. 323, 335 n. 6 (1974), may be found if “there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports.” St. Amant v. Thompson, supra, at 732.
In preparing to prove his case in light of these requirements, Herbert deposed Lando at length and sought an order to compel answers to a variety of questions to which response was refused on the ground that the First Amendment protected against inquiry into the state of mind of those who edit, produce, or publish, and into the editorial process. Applying the standard of Fed. Rule Civ. Proc. 26 (b), which permits discovery of any matter “relevant to the subject matter involved in the pending action” if it would either be admissible in evidence or “appears reasonably calculated to lead to the discovery of admissible evidence,” the District Court ruled that because the defendant’s state of mind was of “central importance” to the issue of malice in the case, it was obvious that the questions were relevant and “entirely appropriate to Herbert’s efforts to discover whether Lando had any reason to doubt the veracity of certain of his sources, or, equally significant, to prefer the veracity of one source over another.” 73 F. R. D. 387, 395, 396 (SDNY 1977). The District Court rejected the claim of constitutional privilege because it found nothing in the First Amendment or the relevant cases to permit or require it to increase the weight of the injured plaintiff’s already heavy burden of proof by in effect creating barriers “behind which malicious publication may go undetected and unpunished.” Id., at 394. The case was then certified for an interlocutory appeal under 28 U. S. C. § 1292 (b), and the Court of Appeals agreed to hear the case.
A divided panel reversed the District Court. 568 F. 2d 974 (CA2 1977). Two judges, writing separate but overlapping opinions, concluded that the First Amendment lent sufficient protection to the editorial processes to protect Lando from inquiry about his thoughts, opinions, and conclusions with respect to the material gathered by him and about his conversations with his editorial colleagues. The privilege not to answer was held to be absolute. We granted certiorari because of the importance of the issue involved. 435 U. S. 922 (1978). We have concluded that the Court of Appeals misconstrued the First and Fourteenth Amendments and accordingly reverse its judgment.
II
Civil and criminal liability for defamation was well established in the common law when the First Amendment was adopted, and there is no indication that the Framers intended to abolish such liability. Until New York Times, the prevailing jurisprudence was that “[l]ibelous utterances [are not] within the area of constitutionally protected speech . . . .” Beauharnais v. Illinois, 343 U. S. 250, 266 (1952); see also Roth v. United States, 354 U. S. 476, 482-483 (1957); Chaplinsky v. New Hampshire, 315 U. S. 568, 571-572 (1942) ; Near v. Minnesota ex rel. Olson, 283 U. S. 697, 707-708 (1931). The accepted view was that neither civil nor criminal liability for defamatory publications abridges freedom of speech or freedom of the press, and a majority of jurisdictions made publishers liable civilly for their defamatory publications regardless of their intent. New York Times and Butts effected major changes in the standards applicable to civil libel actions. Under these cases public officials and public figures who sue for defamation must prove knowing or reckless falsehood in order to establish liability. Later, in Gertz v. Robert Welch, Inc., 418 U. S. 323 (1974), the Court held that nonpublic figures must demonstrate some fault on the defendant’s part and, at least where knowing or reckless untruth is not shown, some proof of actual injury to the plaintiff before liability may be imposed and damages awarded.
These cases rested primarily on the conviction that the common law of libel gave insufficient protection to the First Amendment guarantees of freedom of speech and freedom of press and that to avoid self-censorship it was essential that liability for damages be conditioned on the specified showing of culpable conduct by those who publish damaging falsehood. Given the required proof, however, damages liability for defamation abridges neither freedom of speech nor freedom of the press.
Nor did these cases suggest any First Amendment restriction on the sources from which the plaintiff could obtain the necessary evidence to prove the critical elements of his cause of action. On the contrary, New York Times and its progeny made it essential to proving liability that the plaintiff focus on the conduct and state of mind of the defendant. To be liable, the alleged defamer of public officials or of public figures must know or have reason to suspect that his publication is false. In other cases proof of some kind of fault, negligence perhaps, is essential to recovery. Inevitably, unless liability is to be completely foreclosed, the thoughts and editorial processes of the alleged defamer would be open to examination.
It is also untenable to conclude from our cases that, although proof of the necessary state of mind could be in the form of objective circumstances from which the ultimate fact could be inferred, plaintiffs may not inquire directly from the defendants whether they knew or had reason to suspect that their damaging publication was in error. In Butts, for example, it is evident from the record that the editorial process had been subjected to close examination and that direct as well as indirect evidence was relied on to prove that the defendant magazine had acted with actual malice. The damages verdict was sustained without any suggestion that plaintiff's proof had trenched upon forbidden areas.
Reliance upon such state-of-mind evidence is by no means a recent development arising from New York Times and similar cases. Rather, it is deeply rooted in the common-law rule, predating the First Amendment, that a showing of malice on the part of the defendant permitted plaintiffs to recover punitive or enhanced damages. In Butts, the Court affirmed the substantial award of punitive damages which in Georgia were conditioned upon a showing of “wanton or reckless indifference or culpable negligence” or “ ‘ill will, spite, hatred and an intent to injure 388 U. S., at 165-166. Neither Mr. Justice Harlan, id., at 156-162, nor Mr. Chief Justice Warren, concurring, id,., at 165-168, raised any question as to the propriety of having the award turn on such a showing or as to the propriety of the underlying evidence, which plainly included direct evidence going to the state of mind of the publisher and its responsible agents.
Furthermore, long before New York Times was decided, certain qualified privileges had developed to protect a publisher from liability for libel unless the publication was made with malice. Malice was defined in numerous ways, but in general depended upon a showing that the defendant acted with improper motive. This showing in turn hinged upon the intent or purpose with which the publication was made, the belief of the defendant in the truth of his statement, or upon the ill will which the defendant might have borne toward the plaintiff.
Courts have traditionally admitted any direct or indirect evidence relevant to. the state of mind of the defendant and necessary to defeat a conditional privilege or enhance damages. The rules are applicable to the press and to other defendants alike/ and it is evident that the courts across the country have long been accepting evidence going to the editorial processes of the media without encountering constitutional objections.
In the face of this history, old and new, the Court of Appeals nevertheless declared that two of this Court’s cases had announced unequivocal protection for the editorial process. In each of these cases, Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241 (1974), and Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U. S. 94 (1973), we invalidated governmental efforts to pre-empt editorial decision by requiring the publication of specified material. In Columbia Broadcasting System, it was the requirement that a television network air paid political advertisements and in Tornillo, a newspaper’s obligation to print a political candidate’s reply to press criticism. Insofar as the laws at issue in Tornillo and Columbia Broadcasting System sought to control in advance the content of the publication, they were deemed as invalid as were prior efforts to enjoin publication of specified materials. But holdings that neither a State nor the Federal Government may dictate what must or must not be printed neither expressly nor impliedly suggest that the editorial process is immune from any inquiry whatsoever.
It is incredible to believe that the Court in Columbia Broadcasting System or in Tornillo silently effected a substantial contraction of the rights preserved to defamation plaintiffs in Sullivan, Butts, and like cases. Tornillo and Gertz v. Robert Welch, Inc., were announced on the same day; and although the Court’s opinion in Gertz contained an overview of recent developments in the relationship between the First Amendment and the law of libel, there was no hint that a companion case had narrowed the evidence available to a defamation plaintiff. Quite the opposite inference is to be drawn from the Gertz opinion, since it, like prior First Amendment libel cases, recited without criticism the facts of record indicating that the state of mind of the editor had been placed at issue. Nor did the Gertz opinion, in requiring proof of some degree of fault on the part of the defendant editor and in forbidding punitive damages absent at least reckless disregard of truth or falsity, suggest that the First Amendment also foreclosed direct inquiry into these critical elements.
In sum, contrary to the views of the Court of Appeals, according an absolute privilege to the editorial process of a media defendant in a libel case is not required, authorized, or presaged by our prior cases, and would substantially enhance the burden of proving actual malice, contrary to the expectations of New York Times, Butts, and similar cases.
Ill
It is nevertheless urged by respondents that the balance struck in New York Times should now be modified to provide further protections for the press when sued for circulating erroneous information damaging to individual reputation. It is not uncommon or improper, of course, to suggest the abandonment, modification, or refinement of existing constitutional interpretation, and notable developments in First Amendment jurisprudence have evolved from just such submissions. But in the 15 years since New York Times, the doctrine announced by that case, which represented a major development and which was widely perceived as essentially protective of press freedoms, has been repeatedly affirmed as the appropriate First Amendment standard applicable in libel actions brought by public officials and public figures. Curtis Publishing Co. v. Butts, 388 U. S. 130 (1967); St. Amant v. Thompson, 390 U. S. 727 (1968); Gertz v. Robert Welch, Inc., 418 U. S. 323 (1974); Time, Inc. v. Firestone, 424 U. S. 448 (1976). At the same time, however, the Court has reiterated its conviction — reflected in the laws of defamation of all of the States— that the individual’s interest in his reputation is also a basic concern. Id., at 455-457; Gertz v. Robert Welch, Inc., supra, at 348-349.
We are thus being asked to modify firmly established constitutional doctrine by placing beyond the plaintiff’s reach a range of direct evidence relevant to proving knowing or reckless falsehood by the publisher of an alleged libel, elements that are critical to plaintiffs such as Herbert. The case for making this modification is by no means clear and convincing, and we decline to accept it.
In the first place, it is plain enough that the suggested privilege for the editorial process would constitute a substantial interference with the ability of a defamation plaintiff to establish the ingredients of malice as required by New York Times. As respondents would have it, the defendant’s reckless disregard of the truth, a critical element, could not be shown by direct evidence through inquiry into the thoughts, opinions, and conclusions of the publisher, but could be proved only by objective evidence from which the ultimate fact could be inferred. It may be that plaintiffs will rarely be successful in proving awareness of falsehood from the mouth of the defendant himself, but the relevance of answers to such inquiries, which the District Court recognized and the Court of Appeals did not deny, can hardly be doubted. To erect an impenetrable barrier to the plaintiff’s use of such evidence on his side of the case is a matter of some substance, particularly when defendants themselves are prone to assert their good-faith belief in the truth of their publications, and libel plaintiffs are required to prove knowing or reckless falsehood with “convincing clarity.” New York Times Co. v. Sullivan, 376 U. S., at 285-286.
Furthermore, the outer boundaries of the editorial privilege now urged are difficult to perceive. The opinions below did not state, and respondents do not explain, precisely when the editorial process begins and when it ends. Moreover, although we are told that respondent Lando was willing to testify as to what he “knew” and what he had “learned” from his interviews, as opposed to what he “believed,” it is not at all clear why the suggested editorial privilege would not cover knowledge as well as belief about the veracity of published reports. It is worth noting here that the privilege as asserted by respondents would also immunize from inquiry the internal communications occurring during the editorial process and thus place beyond reach what the defendant participants learned or knew as the result of such collegiate conversations or exchanges. If damaging admissions to colleagues are to be barred from evidence, would a reporter’s admissions made to third parties not participating in the editorial process also be immune from inquiry? We thus have little doubt that Herbert and other defamation plaintiffs have important interests at stake in opposing the creation of the asserted privilege.
Nevertheless, we are urged by respondents to override these important interests because requiring disclosure of editorial conversations and of a reporter’s conclusions about the veracity of the material he has gathered will have an intolerable chilling effect on the editorial process and editorial decision-making. But if the claimed inhibition flows from the fear of damages liability for publishing knowing or reckless falsehoods, those effects are precisely what New York Times and other cases have held to be consistent with the First Amendment. Spreading false information in and of itself carries no First Amendment credentials. “ [T]here is no constitutional value in false statements of fact.” Gertz v. Robert Welch, Inc., supra, at 340.
Realistically, however, some error is inevitable; and the difficulties of separating fact from fiction convinced the Court in New York Times, Butts, Gertz, and similar cases to limit liability to instances where some degree of culpability is present in order to eliminate the risk of undue self-censorship and the suppression of truthful material. Those who publish defamatory falsehoods with the requisite culpability, however, are subject to liability, the aim being not only to compensate for injury but also to deter publication of unprotected material threatening injury to individual reputation. Permitting plaintiffs such as Herbert to prove their cases by direct as well as indirect evidence is consistent with the balance struck by our prior decisions. If such proof results in liability for damages which in turn discourages the publication of erroneous information known to be false or probably false, this is no more than what our cases contemplate and does not abridge either freedom of speech or of the press.
Of course, if inquiry into editorial conclusions threatens the suppression not only of information known or strongly suspected to be unreliable but also of truthful information, the issue would be quite different. But as we have said, our cases necessarily contemplate examination of the editorial process to prove the necessary awareness of probable falsehood, and if indirect proof of this element does not stifle truthful publication and is consistent with the First Amendment, as respondents seem to concede, we do not understand how direct inquiry with respect to the ultimate issue would be substantially more suspect. Perhaps such examination will lead to liability that would not have been found without it, but this does not suggest that the determinations in these instances will be inaccurate and will lead to the suppression of protected information. On the contrary, direct inquiry from the actors, which affords the opportunity to refute inferences that might otherwise be drawn from circumstantial evidence, suggests that more accurate results will be obtained by placing all, rather than part, of the evidence before the decisionmaker. Suppose, for example, that a reporter has two contradictory reports about the plaintiff, one of which is false and damaging, and only the false one is published. In resolving the issue whether the publication was known or suspected to be false, it is only common sense to believe that inquiry from the author, with an opportunity to explain, will contribute to accuracy. If the publication is false but there is an exonerating explanation, the defendant will surely testify to this effect. Why should not the plaintiff be permitted to inquire before trial? On the other hand, if the publisher in fact had serious doubts about accuracy, but published nevertheless, no undue self-censorship will result from permitting the relevant inquiry. Only knowing or reckless error will be discouraged; and unless there is to be an absolute First Amendment privilege to inflict injury by knowing or reckless conduct, which respondents do not suggest, constitutional values will not be threatened.
It is also urged that frank discussion among reporters and editors will be dampened and sound editorial judgment endangered if such exchanges, oral or written, are subject to inquiry by defamation plaintiffs. We do not doubt the direct relationship between consultation and discussion on the one hand and sound decisions on the other; but whether or not there is liability for the injury, the press has an obvious interest in avoiding the infliction of harm by the publication of false information, and it is not unreasonable to expect the media to invoke whatever procedures may be practicable and useful to that end. Moreover, given exposure to liability when there is knowing or reckless error, there is even more reason to resort to prepublication precautions, such as a frank interchange of fact and opinion. Accordingly, we find it difficult to believe that error-avoiding procedures will be terminated or stifled simply because there is liability for culpable error and because the editorial process will itself be examined in the tiny percentage of instances in which error is claimed and litigation ensues. Nor is there sound reason to believe that editorial exchanges and the editorial process are so subject to distortion and to such recurring misunderstanding that they should be immune from examination in order to avoid erroneous judgments in defamation suits. The evidentiary burden Herbert must carry to prove at least reckless disregard for the truth is substantial indeed, and we are unconvinced that his chances of winning an undeserved verdict are such that an inquiry into what Lando learned or said during the editorial process must be foreclosed.
This is not to say that the editorial discussions or exchanges have no constitutional protection from casual inquiry. There is no law that subjects the editorial process to private or official examination merely to satisfy curiosity or to serve some general end such as the public interest; and if there were, it would not survive constitutional scrutiny as the First Amendment is presently construed. No such problem exists here, however, where there is a specific claim of injury arising from a publication that is alleged to have been knowingly or recklessly false.
Evidentiary privileges in litigation are not favored, and even those rooted in the Constitution must give way in proper circumstances. The President, for example, does not have an absolute privilege against disclosure of materials subpoenaed for a judicial proceeding. United States v. Nixon, 418 U. S. 683 (1974). In so holding, we found that although the President has a powerful interest in confidentiality of communications between himself and his advisers, that interest must yield to a demonstrated specific need for evidence. As we stated, in referring to existing limited privileges against disclosure, “[w]hatever their origins, these exceptions to the demand for every man’s evidence are not lightly created nor expansively construed, for they are in derogation of the search for truth.” Id., at 710.
With these considerations in mind, we conclude that the present construction of the First Amendment should not be modified by creating the evidentiary privilege which the respondents now urge.
IV
Although defamation litigation, including suits against the press, is an ancient phenomenon, it is true that our cases from New York Times to Gertz have considerably changed the profile of such cases. In years gone by, plaintiffs made out a prima facie case by proving the damaging publication. Truth and privilege were defenses. Intent, motive, and malice were not necessarily involved except to counter qualified privilege or to prove exemplary damages. The plaintiff’s burden is now considerably expanded. In every or almost every case, the plaintiff must focus on the editorial process and prove a false publication attended by some degree of culpability on the part of the publisher. If plaintiffs in consequence now resort to more discovery, it would not be surprising; and it would follow that the costs and other burdens of this kind of litigation would escalate and become much more troublesome for both plaintiffs and defendants. It is suggested that the press needs constitutional protection from these burdens if it is to perform its task, which is indispensable in a system such as ours.
Creating a constitutional privilege foreclosing direct inquiry into the editorial process, however, would not cure this problem for the press. Only complete immunity from liability for defamation would effect this result, and the Court has regularly found this to be an untenable construction of the First Amendment. Furthermore, mushrooming litigation costs, much of it due to pretrial discovery, are not peculiar to the libel and slander area. There have been repeated expressions of concern about undue and uncontrolled discovery, and voices from this Court have joined the chorus. But until and unless there are major changes in the present Rules of Civil Procedure, reliance must be had on what in fact and in law are ample powers of the district judge to prevent abuse.
The Court has more than once declared that the deposition-discovery rules are to be accorded a broad and liberal treatment to effect their purpose of adequately informing the litigants in civil trials. Schlagenhauf v. Holder, 379 U. S. 104, 114-115 (1964); Hickman v. Taylor, 329 U. S. 495, 501, 507 (1947). But the discovery provisions, like all of the Federal Rules of Civil Procedure, are subject to the injunction of Rule 1 that they “be construed to secure the just, speedy, and inexpensive determination of every action.” (Emphasis added.) To this end, the requirement of Rule 26 (b) (1) that the material sought in discovery be “relevant” should be firmly applied, and the district courts should not neglect their power to restrict discovery where “justice requires [protection for] a party or person from annoyance, embarrassment, oppression, or undue burden or expense . . . .” Rule 26 (c). With this authority at hand, judges should not hesitate to exercise appropriate control over the discovery process.
Whether, as a nonconstitutional matter, however, the trial judge properly applied the rules of discovery was not within the boundaries of the question certified under 28 U. S. C. § 1292 (b) and accordingly is not before us. The judgment of the Court of Appeals is reversed.
So ordered.
Criminal libel prosecutions are subject to the same constitutional limitations. Garrison v. Louisiana, 379 U. S. 64 (1964).
The Court of Appeals summarized the inquiries to which Lando objected as follows:
“1. Lando’s conclusions during his research and investigations regarding people or leads to be pursued, or not to be pursued, in connection with the ‘60 Minutes’ segment and the Atlantic Monthly article;
"2. Lando’s conclusions about facts imparted by interviewees and his state of mind with respect to the veracity of persons interviewed;
“3. The basis for conclusions where Lando testified that he did reach a conclusion concerning the veracity of persons, information or events;
“4. Conversations between Lando and Wallace about matter to be included or excluded from the broadcast publication; and
“5. Lando’s intentions as manifested by his decision to include or exclude certain material.” 568 F. 2d 974, 983 (CA2 1977).
Respondents’ petition for leave to appeal from an interlocutory order, which was granted, stated the issue on appeal as follows:
“What effect should be given to the First Amendment protection of the press with respect to its exercise of editorial judgment in pre-trial discovery in a libel case governed by New York Times Co. v. Sullivan, 376 U. S. 254 (1964)?”
See, e. g., Restatement of Torts §580 (1938); Pedrick, Freedom of the Press and the Law of Libel: The Modern Revised Translation, 49 Corn. L. Q. 581, 583-584 (1964); Developments in the Law — Defamation, 69 Harv. L. Rev. 875, 902-910 (1956). In Peck v. Tribune Co., 214 U. S. 185, 189 (1909), Mr. Justice Holmes summarized the prevailing view of strict liability in the course of reviewing a libel judgment rendered in a federal diversity of citizenship action:
“There was some suggestion that the defendant published the portrait by mistake, and without knowledge that it was the plaintiff’s portrait or was not what it purported to be. But the fact, if it was one, was no excuse. If the publication was libellous the defendant took the risk. As was said of such matters by Lord Mansfield, ‘Whatever a man publishes he publishes at his peril.' The King v. Woodfall, Lofft 776, 781. . . . The reason is plain. A libel is harmful on its face. If a man sees fit to publish manifestly hurtful statements concerning an individual, without other justification than exists for an advertisement or a piece of news, the usual principles of tort will make him liable, if the statements are false or are true only of some one else.”
The definition of fault was to be the responsibility of state laws. Gertz v. Robert Welch, Inc., 418 U. S. 323, 347 (1974).
See 388 U. S., at 156-169, where Mr. Justice Harlan, writing for a plurality of the Court, reviewed the record under the standard he preferred to apply to public figures, and upheld the verdict for the plaintiff. Mr. Chief Justice Warren independently reviewed the record under the “actual malice” standard of New York Times and also concluded in his concurring opinion that the verdict should be upheld. Id., at 168-170. The evidence relied on and summarized in both opinions included substantial amounts of testimony that would fall within the editorial-process privilege as defined by respondents. The record before the Court included depositions by the author of the defamatory article, an individual paid to assist the author in preparation, the sports editor of the Saturday Evening Post, and both its managing editor and editor in chief. These depositions revealed the Saturday Evening Post’s motives in publishing the story (Record, O. T. 1966, No. 37, pp. 706-717), sources {id., at 364, 662-664, 719-720, 729), conversations among the editors and author concerning the research and development of the article {id., at 363-367, 721-737), decisions and reasons relating to who should be interviewed and what should be investigated {id., at 666-667, 699-700, 734-736, 772-774), conclusions as to the importance and veracity of sources and information presented in the article {id., at 720, 732-735, 737, 771-772, 776), and conclusions about the impact that publishing the article would have on the subject {id., at 714^-716, 770). Mr. Justice BreNNAN, writing for himself and Mr. Justice White, also thought the evidence of record sufficient to satisfy the New York Times malice standard. It is quite unlikely that the Court would have arrived at the result it did had it believed that inquiry into the editorial processes was constitutionally forbidden.
The Court engaged in similar analysis of the record in reversing the judgments entered in a companion case to Butts, Associated Press v. Walker, 388 U. S., at 158-159; id., at 165 (Warren, C. J., concurring); and in Time, Inc. v. Hill, 385 U. S. 374, 391-394 (1967). In Hill, the record included the edited drafts of the allegedly libelous article and an examination and cross-examination of the author. During that examination, the writer explained in detail the preparation of the article, his thoughts, conclusions, and beliefs regarding the material, and a line-by-line analysis of the article with explanations of how and why additions and deletions were made to the various drafts. As in Butts, the editorial process was the focus of much of the evidence, and direct inquiry was made into the state of mind of the media defendants. Yet the Court raised no question as to the propriety of the proof.
A. Hanson, Libel and Related Torts ¶ 163 (1969); Developments in the Law — Defamation, supra n. 4, at 938; 50 Am. Jur. 2d, Libel and Slander § 352 (1970); 53 C. J. S., Libel and Slander § 260 (1955).
The Restatement originally provided in a separate section for the award of punitive damages for malicious defamations. Restatement of Torts § 1068 (Tent. Draft 13, 1936) :
“One who is liable for harm to another’s reputation caused by the publication of a libel or slander is also liable for punitive damages if the defamatory matter was published with knowledge of its falsity or if it was published in reckless indifference to its truth or falsity or solely for the purpose of causing harm to the plaintiff’s reputation or other legally protected interest.”
The provision was later omitted with the explanation that recovery of punitive damages would be determined by the rules in the Restatement with respect to damages in general. Restatement of Torts § 1068 (Proposed Final Draft 3, 1937).
Gertz v. Robert Welch, Inc., supra, at 350, limited the entitlement to punitive damages, but such damages are still awardable upon a showing of knowing or reckless falsehood.
As Mr. Justice Harlan noted, the jury had been instructed in considering punitive damages to assess “ ‘the reliability, the nature of the sources of the defendant’s information, its acceptance or rejection of the sources, and its care in checking upon assertions.’ ” 388 U. S., at 156 (emphasis added). The Justice found nothing amiss either with the instruction or the result the jury reached under it. Mr. Justice BreNNAN, dissenting in the Butts case, id., at 172-174, analyzed the instructions differently but raised no question as to the constitutionality of turning the award of either compensatory or punitive damages upon direct as well as circumstantial evidence going to the mental state of the defendant.
See n. 6, supra.
See Nalle v. Oyster, 230 U. S. 165, 179-180 (1913); White v. Nicholls, 3 How. 266, 286-292 (1845); T. Plucknett, A Concise History of the Common Law 502 (5th ed. 1956); Hallen, Character of Belief Necessary for the Conditional Privilege in Defamation, 25 Ill. L. Rev. 865 (1931). In White v. Nicholls, supra, at 290-291, the Court surveyed the common law and summarized the privilege as follows:
“We have thus taken a view of
Question: Does the court opinion mention that one or more of the members of the court whose decision the Supreme Court reviewed dissented?
A. Yes
B. No
Answer:
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songer_othadmis
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E
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What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule that some evidence, other than a confession made by the defendant or illegal search and seizure, was inadmissibile, (or did ruling on appropriateness of evidentary hearing benefit the defendant)?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless".
UNITED STATES v. RAYNO et al.
No. 3862.
Circuit Court of Appeals, First Circuit.
June 14, 1943.
Wilma C. Martin, Atty., Department of Justice, of Washington, D. C, Norman M. Littell, Asst. Atty. Gen., and Vernon L. Wilkinson, Atty., Department of Justice, of Washington, D. C, and Alexander Murchie, U. S. Atty., of Concord, N. H., for appellant.
Robert W. Upton, of Concord, N. H., for appellees.
Before MAGRUDER, MAHONEY, and WOODBURY, Circuit Judges.
WOODBURY, Circuit Judge.
This is an appeal by the United States from a judgment of the United States District Court for the District of New Hampshire in a condemnation proceeding awarding $12,725 as compensation for 12.3 acres of pasture land situated in the town of Andover. The land was condemned and taken to provide material needed for the construction of a flood-control dam located about three and a half miles away at Franklin Falls on the Pemigewasset River.
This dam was constructed under the jurisdiction of the War Department under the direction of the Secretary of War and the supervision of the Chief of Engineers, as authorized by the Flood Control Act of 1936 (49 Stat. 1570, 1572) as amended in 1938 (52 Stat. 1215, 1216), 33 U.S.C.A. § 701a et seq., and, in 1937, pursuant to this authorization civil engineers employed by the War Department made a geological reconnaissance of all lands within a radius of five miles of the dam site. The purpose of this investigation was to find out whether there was available in the neighborhood a sufficient supply of impervious earthen material suitable for the construction of the core and blankets of a dam of rolled earth fill construction. It was found that in the vicinity of the dam there were extensive deposits of glacial till or hardpan, a material which when well compacted is almost as impervious as cement, and that the best deposit, both as to quality and accessibility, was on the land condemned. Consequently the specifications for the dam, which were given out for bids on July 15, 1939, called for a rolled earth fill structure, the core and blankets of which were to be built of material taken from the land condemned herein. The contract for the construction of the dam was awarded in August, 1939, and construction was begun soon thereafter.
This is the background for the instant proceeding which was instituted on September 28, 1939, by the United States Attorney for the District of New Hampshire acting under the instructions of the Attorney General and at the request of the Secretary of War. In it condemnation of the land is sought under 33 U.S.C.A. § 591. On the day the petition for condemnation was filed the court entered an order giving the United States immediate possession pursuant to 33 U.S.C.A. § 594. Thereafter three commissioners were appointed in accordance with the state procedure for the condemnation of land, and these commissioners, after viewing the premises and hearing testimony, appraised the land at $3,220. Both the United States and Rayno appealed from this appraisal and asked for a. jury trial. Upon such a trial Rayno obtained a verdict for $7,250 and thereupon the United States Attorney moved that this verdict be set aside as excessive. The court below, saying "I believe that the jury based their award on the gain to the taker and not the loss to the owner”, granted the motion and ordered a new trial unless the owner would agree to accept and the Government would agree to pay $4,000 with interest. Rayno declining, there was another jury trial and this time the verdict was for $12,725. Again the United States Attorney moved that the verdict be set aside as excessive but this time the court denied the motion and ordered judgment on the verdict. From the judgment entered pursuant to this order the United States ■took this appeal alleging as grounds therefor errors in the admission of evidence and in the failure to charge as requested, as well as error in failing to grant the motion to set aside the verdict.
The evidence adduced at the second jury trial indicates that the 12.3 acres of land taken comprised about half the pasture land of a 63.7 acre dairy farm. This entire farm was purchased for Rayno by his mother in 1928 for $1,400 and she, upon being reimbursed for the price, conveyed it to him in 1933. During the years that Ray-no owned the entire farm it appears that he spent about $1,000 in improving it, but it does not appear that he ever spent anything in improving the part devoted to pasturage. There was evidence that at the time of the taking the entire farm was worth $2,500 to $2,700 for agricultural or residential purposes and that after the taking the part that remained was worth, for the same purposes, from $1,200 to $1,-300. On the basis of this testimony the United States Attorney contends that in reason the compensation awarded cannot exceed $1,500.
Counsel for the landowner takes a different view. He contends that “The sum required to be paid the owner does not depend upon the uses to which he has devoted his land but is to be arrived at upon just consideration of all the uses for which it is suitable”, (Olson v. United States, 292 U.S. 246, 255, 54 S.Ct. 704, 708, 78 L.Ed. 1236) and that, although the land taken had been used by Rayno only as a pasture, its most valuable use was the use to which the Government put it, that is, as a gravel pit. On this theory he was allowed over the objection of the United States Attorney to introduce evidence of the price per cubic yard paid for glacial till or hardpan in situ in and around Franklin and Andover at and before the time of the taking and of the quantity of that material on the land condemned. From these figures it would appear that the verdict of the jury is within the evidence. The first question for our consideration is the admissibility of the above testimony.
The Supreme Court has recently said that “The Fifth Amendment of the Constitution provides that private property shall not be taken for public use without just compensation. Such compensation means the full and perfect equivalent in money of the property taken. The owner is to be put in as good position pecuniarily as he would have occupied if his property had not been taken.” United States v. Miller, 317 U.S. 369, 373, 63 S.Ct. 276, 279, 87 L.Ed.-. But that court in the same case refrained from attempting to state any specific formula of general application by which to determine an owner’s indemnity. It said that the courts early adopted the concept of market value, that is, what a willing buyer would pay and a willing seller accept in cash for the property at the time of the taking, but it left determination of the proper elements for consideration in arriving at this figure to decision in specific cases as they arise.
Decided cases, however, indicate the answer to the question raised by the United States Attorney’s objection to the testimony of the price per cubic yard and the quantity of hardpan on the property.
It has long been established that one of the elements or factors to be considered in cases of this sort is all the available uses which might be made of the property. See Boom Co. v. Patterson, 98 U.S. 403, 408, 25 L.Ed. 206; United States v. Chandler-Dunbar Water Power Co., 229 U.S. 53, 81, 33 S.Ct. 667, 57 L.Ed. 1063, as well as Olson v. United States, supra, and United States v. Miller, supra, 317 U.S. at page 375, 63 S.Ct. 276, 87 L.Ed.-. But the mere physical presence of hardpan on the property involved herein is not enough to show that the property was available for use as a source of supply of that material. It is of no use as a source of supply unless there is a market for it and the market for a material like hardpan is necessarily a limited local one. The reason for this is that the supply of hardpan is more than adequate to meet the demand; it is not a material dealt in as a commodity after severance from the land on which it is found; and, due to these factors and to its weight and bulk, it cannot economically be transported any great distance from the place where it is found to the place where it is to be used. Now, obviously, the construction of the dam at Franklin Falls created a market for the hardpan on the property condemned and thus gave that land value as a gravel pit, but the question remains whether the value thus created is one the jury were entitled to consider. In our opinion the Miller case cited above establishes that it was not. In that case, at pages 376 and 377 of 317 U.S., at page 281 of 63 S.Ct., 87 L.Ed.-, the Court said:
“If a distinct tract is condemned, in whole or in part, other lands in the neighborhood may increase in market value due to the proximity of the public improvement erected on the land taken. Should the Government at a later date, determine to take these other lands it must pay their market value as enhanced by this factor of proximity. If, however, the public project from the beginning included the taking of certain tracts but only one of them is taken in the first instance, the owner of the other tracts should not be allowed an increased value for his lands which are ultimately to be taken any more than the owner of the tract first condemned is entitled to be allowed an increased market value because adjacent lands not immediately taken increased in value due to the projected improvement.
“The question then is whether the respondents’ lands were probably within the scope of the project from the time the Government was committed to it. If they were not, but were merely adjacent lands, the subsequent enlargement of the project to include them ought not to deprive the respondents of the value added in the meantime by the proximity of the improvement. If, on the other hand, they were, the Government ought not to pay any increase in value arising from the known fact that the lands probably would be condemned. The owners ought not to gain by speculating on probable increase in value due to the Government’s activities.”
Since, on the record before us, it seems evident that Rayno’s land, although not contiguous to the land flooded or the land used for the dam site, was probably within the scope of the flood control project at Franklin Falls in that it was determined that it would be taken for use in building the type of dam determined upon at the place selected, it was “within the scope of the project from the time the Government was committed to it”. Thus the market for hardpan created by the Government’s activities at Franklin Falls cannot be considered in determining the value of the land from which it was taken.
There was evidence, however, of some market for Rayno’s hardpan aside from the market created by the construction of the dam. It appears that during the two decades before this proceeding was begun some of it had been used for surfacing a few tennis courts in the neighborhood and for the construction of a few miles or rural road of the clay-chloride type, a use for which it was not too well adapted. It does not appear that any charge was made for the material taken for these purposes, but undoubtedly some charge might have been made, and under these circumstances we cannot say that error of law was committed in permitting the jury to find from the evidence that a market for Rayno’s hardpan existed aside from the market created by the Government’s flood control project at Franklin Falls. And, if the jury should so find, then they might conclude that a willing buyer would give more and a willing seller would insist upon receiving more for the property because of the presence upon it of the hardpan, and this logically makes it relevant to inquire into the unit price of the hardpan in the bank and its amount. National Brick Co. v. United States, 76 U.S.App.D.C. 329, 131 F.2d 30.
We come now to the alleged errors in the charge.
After the oral arguments the court charged the jury insofar as here material as follows:
“ * * * you have just one duty to perform in this case and that’s to fix fair and just compensation for the land which the Government has taken, which belonged to M!r. Rayno. * * *
“And now to get at the matter of fair and just compensation for the taking of this land let’s sit down or you imagine that a willing seller sits down with a willing purchaser, across the table, each party knowing all the factors which would enter into a fair market value of the property, and they negotiate and they would arrive at a conclusion which would probably as nearly determine the fair market value of that property as anyone could determine it, mind you, each party, knowing» all the factors which should enter into a fair valuation of the property. Now that’s what you gentlemen are to determine.
“You have those factors which you may consider as entering into the fair market value of this property from one side and the other and you will determine from these factors what is a fair market value for the 12.3 acres of land which has been taken. Then the severance value. You will add the two together and that will be your verdict in this case.”
The court then called counsel .to the bench and after some colloquy the United States Attorney began to take his exceptions to the failure of the court to charge as he had previously requested in writing. The court asked him to read his requests, which he did, apparently aloud so that the jury could hear, and after each one was read the court commented thereon to the jury. This procedure was followed with respect to four or five of the requested instructions and then the following occurred:
“Mr. Murchie: Well now, Judge, I think I will state all my others as they occur in my requests. The Government excepts to the failure of the Court to give its requests numbers 8, 9, 10, 11, 12, 13, 14 and 16.
“Judge: Well, I don’t know what you have got there, I can’t remember what you have, there might be something I should give. I think I would like to have you read them, each one, and I can comment on it or not as I like.
“Mr. Murchie: Well, that’s not the orthodox way to handle exceptions to failure to give instructions.
“Judge: Well, that may not be the orthodox way but I want to be fair to both sides and fair to the parties here.”
Counsel for the landowner then said that he did not wish to take any exceptions to the charge as given and the jury were ordered to retire.
Counsel for the landowner first contends that the United States Attorney in effect waived his requests .as enumerated above by declining to read them separately to the jury so that the court could- comment upon them. We do not agree. It appears that the United States Attorney complied with Rule 51 of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, in that he filed his requests for instructions on time and in writing and in that he objected to the court’s failure to give them before the jury retired. No point is made that his objection was not sufficiently specific in that he failed to state “distinctly the matter to which he objects and the grounds of his objection”. Nor do we think that that point, if made, would be good because from the previous trial, from motions made at this one, and from the rulings on the questions of evidence considered above the court must have been well aware of the legal theory upon which the United States Attorney wished to have the case submitted to the jury. In short, under the circumstances disclosed by the record in the case at bar there was no occasion for the United States Attorney to have specifically stated the grounds of his objection because the court must have known those grounds already.
In the requests the court was asked to charge the jury to the effect that the landowner was not entitled to recover any element of value arising from the prospect that the land would be taken by the Government; that the presence of the glacial till could not be considered unless there was a demand for the material by someone other than the Government; and that, there being no reasonable prospect of any market for the glacial till except the market created by the Government, the deposit should not be considered but the land should be valued as part of a farm.
From what we have already said with respect to the questions of evidence it is clear that these points, except the last one, should have been covered by the charge. And need for instructions on the matters covered by the requests is emphasized by the fact that the court admitted evidence of the amount of glacial till taken from the land by the Government. This evidence was admitted for the limited purpose of showing how much hardpan was on the land, but the jury were not told of this limitation. From this and from the brief and general nature of the charge as given, the jury might well have concluded that the Government ought to pay for the land on the basis of some price per cubic yard for the amount of hardpan taken from it, which, as we have shown above, it was not under any legal obligation to do. There must be a new trial for errors in the charge.
Since this is so we need not consider whether or not the verdict rendered at this trial was excessive.
The judgment of the District Court is vacated, the verdict is set aside and the case is remanded to that Court for further proceedings consistent with this opinion.
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_numresp
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your specific task is to determine the total number of respondents in the case. If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
MASSACHUSETTS ASSOCIATION OF OLDER AMERICANS, et al., Plaintiffs, Appellants, v. Alexander SHARP, II, etc., Defendant, Appellee.
No. 82-1592.
United States Court of Appeals, First Circuit.
Argued Jan. 7, 1983.
Decided Feb. 15, 1983.
Suzanne Harris, Cambridge, Mass., with whom Steven A. Hitov, New Rochelle, N.Y., was on brief, for plaintiffá, appellants.
Thomas Noonan, Deputy Gen. Counsel, Hyde Park, Mass., Dept, of Public Welfare, with whom Francis X. Bellotti, Atty. Gen., and E. Michael Sloman, Asst. Atty. Gen., Boston, Mass., Government Bureau, were on brief, for defendant, appellee.
Before COFFIN, Chief Judge, BOWNES and BREYER, Circuit Judges.
BOWNES, Circuit Judge.
Plaintiffs-appellants are a subclass consisting of approximately 4,400 families with stepchildren whose Medicaid and Aid to Families with Dependent Children (AFDC) has been terminated as a result of the stepparent liability provision recently added to the AFDC program. 42 U.S.C. § 602(a)(31) (as amended). Defendant-appellee is the Commissioner of the Department of Public Welfare of the Commonwealth of Massachusetts. Plaintiffs appeal from the district court’s denial of their motion for a preliminary injunction to prevent the termination of Medicaid. See 28 U.S.C. § 1292. We reverse.
The Medicaid program was established in 1965 as Title XIX of the Social Security Act to provide federal financial assistance to states choosing to reimburse needy persons for certain medical treatment costs. Act of July 30, 1965, Pub.L. No. 89-97, tit. I, § 121(a), 79 Stat. 343; see Schweiker v. Hogan,-U.S. --,-, 102 S.Ct. 2597, 2600, 73 L.Ed.2d 227 (1982). States are not required to participate in the program, but if they do, they must comply with all requirements imposed both by the Act itself and by regulations promulgated by the Secretary of the Department of Health and Human Services. See 42 U.S.C. § 1396; Schweiker v. Gray Panthers, 453 U.S. 34, 37, 101 S.Ct. 2633, 2636, 69 L.Ed.2d 460 (1981). A participating state must submit a plan for medical assistance that conforms to the requirements of 42 U.S.C. § 1396a. Massachusetts has chosen to participate in the Medicaid program. See Mass.Gen.Laws Ann. ch. 118E (West Supp. 1982).
A participating state is required to provide assistance to the “categorically needy” and may provide assistance to the “medically needy.” 42 U.S.C. § 1396a(a)(10); 42 C.F.R. §§ 435.100-.340 (1981). The categorically needy are those persons receiving federal aid through other federal cash assistance programs such as AFDC and Supplemental Security Income (SSI). 42 U.S.C. § 1396a(a)(10)(A). Also included in the categorically needy are those individuals who are excluded from AFDC because of an eligibility requirement that does not apply to the Medicaid program. The medically needy are persons who are unable to pay for medical expenses, but whose income is too large to qualify for aid under other federal financial assistance programs. See Schweiker v. Gray Panthers, 453 U.S. at 37, 101 S.Ct. at 2636.
The Act mandates that assistance provided to the categorically needy “shall not be less in amount, duration, or scope than the medical assistance made available to [the medically needy] .... ” 42 U.S.C. § 1396a(a)(10)(B)(ii). Congress imposed this preference for the categorically needy to ensure that those .most in need of assistance would receive it first and in amounts not less than that received by other individuals. Schweiker v. Hogan, - U.S. at - & n. 6, 102 S.Ct. at 2601 & n. 6.
Plaintiffs, as recipients of AFDC, were all eligible for and received Medicaid pursuant to the mandatory coverage of the categorically needy. The federal regulations governing Medicaid guarantee automatic enrollment in Medicaid upon qualification for AFDC and prohibit a state from requiring an additional Medicaid application from an individual receiving AFDC. 42 C.F.R. § 435.909(a) (1981). Plaintiffs, thus, have never filed a separate application for Medicaid.
In 1981 Congress, as part of the Omnibus Budget Reconciliation Act, P.L. No. 97-35, 95 Stat. 843, amended the AFDC Act to require that states include income of stepparents in determining a stepchild’s eligibility for AFDC. See 42 U.S.C. § 602(a)(31) (as amended). Prior to this amendment a stepparent’s income was not considered in the AFDC eligibility determination. The Medicaid Act specifically excludes stepparent’s income from eligibility determinations. 42 U.S.C. § 1396a(a)(17)(D).
Acting pursuant to this new AFDC provision, defendant in March 1982 began notifying plaintiffs, AFDC families containing stepchildren, that their AFDC benefits were being terminated. These notices also advised the families that their Medicaid benefits were ending. After many families were terminated, plaintiffs brought this action seeking to have their Medicaid benefits restored and to prevent further terminations.
Plaintiffs claim that the terminations were illegal because defendant failed to comply with federal regulations requiring the state welfare agency to redetermine eligibility on other grounds before termination. See 42 C.F.R. § 435.916(e) (1981). They admit that they are no longer automatically eligible for Medicaid as AFDC recipients. Nonetheless, they claim that most of them are still covered as categorically needy because stepparent income is an AFDC eligibility requirement specifically excluded from consideration in Medicaid eligibility.
Defendant responds that the regulations requiring a redetermination prior to termination do not apply to plaintiffs because they never independently qualified for Medicaid. Rather, defendant contends, the re-determination provisions cover only Medicaid recipients who applied for Medicaid directly and are not receiving it as a function of their eligibility for some other federal assistance program. Defendant argues that the proper course for plaintiffs is to make a new application for Medicaid.
The district court denied plaintiffs’ motion for a preliminary injunction. The court’s denial was based on its belief that any harm suffered by the plaintiffs could be avoided in the main by application for Medicaid benefits. The court conditioned its denial on defendant’s sending notices to all plaintiffs informing them of the reasons for their termination from AFDC and Medicaid and advising them that they could still apply for Medicaid benefits.
In determining whether to grant a preliminary injunction the court must consider four criteria:
“(1) [whether] plaintiff will suffer irreparable injury if the injunction is not granted; (2) [whether] such injury outweighs any harm which granting injunctive relief would inflict on the defendant; (3) [whether] plaintiff has exhibited a likelihood of success on the merits; and (4) [whether] the public interest will not be adversely affected by the granting of the injunction.”
Auburn News Co., Inc. v. Providence Journal Co., 659 F.2d 273, 277 (1st Cir.1981) (quoting Planned Parenthood League of Massachusetts v. Bellotti, 641 F.2d 1006, 1009 (1st Cir.1981)), cert. denied, 455 U.S. 921, 102 S.Ct. 1277, 71 L.Ed.2d 461 (1982). While each of these factors must be considered, “the probability-of-success component has loomed large in cases before this court.” Auburn News Co., Inc. v. Providence Journal Co., 659 F.2d at 277.
At the appellate level our review is limited. The decision to grant or deny a preliminary injunction is generally left to the discretion of the district court, and we will reverse only if the district court abused its discretion or if the denial was based on a clear error of law. See Massachusetts Association for Retarded Citizens, Inc. v. King, 668 F.2d 602, 607 (1st Cir.1981); Massachusetts Coalition of Citizens with Disabilities v. Civil Defense Agency, 649 F.2d 71, 74 (1st Cir.1981); Planned Parenthood League of Massachusetts v. Bellotti, 641 F.2d at 1009.
We think that the district court committed a clear error of law by failing to examine all of the criteria relevant to a determination of whether a preliminary injunction should issue. In particular, the district court failed to examine the legal arguments raised by the parties. In so doing, it failed to make the required appraisal of the plaintiffs’ likelihood of success on the merits. We think that an examination of the merits so clearly indicates that the plaintiffs will prevail that an injunction should issue on their behalf.
We briefly reiterate the legal claims raised by the parties. Plaintiffs contend that the federal regulations governing the Medicaid program require the defendant to redetermine their eligibility prior to terminating their Medicaid benefits. That is, although they are no longer automatically eligible for Medicaid as recipients of AFDC, the defendant, before terminating their benefits, must reexamine the relevant eligibility criteria and determine whether they qualify for Medicaid under some other eligibility category.
In support of their argument plaintiffs rely primarily on two regulations. Both regulations appear in a single subpart: “Eligibility in the States and the District of Columbia.” The first of these, 42 C.F.R. § 435.916 (1981), comes under the heading “Redeterminations of Medicaid Eligibility.” Section 435.916 requires that the state agency responsible for administering the Medicaid program must promptly redetermine eligibility when it receives information about changes in a recipient’s circumstances that may affect his or her eligibility. 42 C.F.R. § 435.916(c)(1) (1981).
The second regulation is found in the section entitled “Furnishing Medicaid.” This regulation requires the state agency to continue to furnish Medicaid to all eligible individuals until they are found to be ineligible. Plaintiffs argue that, taken together, these regulations require the state agency, once it receives possibly disqualifying information, to continue to furnish benefits until it determines that a recipient is ineligible under any possible method of qualifying for benefits.
Defendant disputes this interpretation of the regulations. He argues that section 435.916(c)(1) covers only individuals who have directly applied for Medicaid and claims that the redetermination procedure “only makes sense” if the state agency has a separate Medicaid application on file. His argument boils down to essentially one of administrative convenience.
As to section 435.930, defendant agrees that this regulation requires the state agency to continue to furnish Medicaid benefits until a recipient is found to be ineligible. Defendant argues, however, that the agency satisfied this requirement because it only discontinued benefits upon learning of plaintiffs’ ineligibility for automatic Medicaid coverage due to their loss of AFDC benefits. Defendant sees no interrelationship between sections 435.916 and 435.930 with respect to these plaintiffs. He argues that the agency was not required to do anything upon learning of plaintiffs’ loss of AFDC benefits because this made plaintiffs automatically ineligible for Medicaid and did not trigger a redetermination process. We do not agree.
In Stenson v. Blum, 476 F.Supp. 1331 (S.D.N.Y.1979), aff’d without opinion, 628 F.2d 1345 (2d Cir.), cert. denied, 449 U.S. 885,101 S.Ct. 239, 66 L.Ed.2d 111 (1980), the District Court for the Southern District of New York was confronted with an issue that is nearly identical to the one presented in this case. In Stenson the plaintiffs, a class consisting of recently terminated SSI recipients, sought a preliminary injunction to prevent the state Department of Social Services from suspending their Medicaid benefits until their eligibility was redetermined and, if they were ineligible, until they were afforded notice and an opportunity for a hearing. Id. at 1333. SSI recipients, as is so with the present plaintiffs, are mandatorily covered categorically needy individuals for the purposes of the Medicaid Act. The plaintiffs relied primarily on the same regulations that are dispositive in the present case.
In a comprehensive and well-reasoned opinion, Judge Sweet concluded that these regulations require the state agency, upon receipt of notification of an individual’s termination from SSI, to reconsider the recipient’s eligibility for Medicaid benefits. Pending this ex parte determination the state must continue to furnish such individuals with Medicaid benefits, and if it determines that an individual is ineligible, it must give notice and an opportunity for a hearing before termination. Id. at 1339-41. The court explained that these regulations apply to individuals who qualified for Medicaid under any eligibility category. Id. at 1339.
We agree with the Stenson court’s conclusion as appropriate to the case before us. Nothing in the relevant regulations evidences an intent to exclude from coverage individuals who automatically qualified for Medicaid as categorically needy. Indeed, the regulatory and statutory scheme points to the opposite conclusion. The regulatory provisions are included in the subpart which “sets forth requirements for processing applications, determining eligibility, and furnishing Medicaid.” 42 C.F.R. § 435.900 (1981). That automatically eligible recipients are covered in this subpart is clear from the inclusion of the regulation prohibiting separate Medicaid applications from AFDC recipients. Moreover, the mere determination that these plaintiffs are “disqualified” from AFDC eligibility cannot in and of itself amount to a speedy “redetermination" of their eligibility for Medicaid within the meaning of the regulations. To the contrary, the regulations suggest that the applicants are still “categorically needy,” since the reason for their disqualification (stepparent income deeming) is expressly made irrelevant to Medicaid eligibility. See 42 U.S.C. § 1396a(a)(17)(D); 42 C.F.R. § 435.113.
Our conclusion is also supported by the Medicaid statute itself. Congress mandated that the assistance provided to the mandatorily covered categorically needy cannot be less in “amount, duration, or scope” than the assistance provided to other needy groups. 42 U.S.C. § 1396a(a)(10)(B)(ii). This provision reflects the congressional preference accorded the categorically needy; they are to receive assistance first and in no less comprehensive a form because they are “persons whom Congress considered especially deserving of public assistance . . .. ” Schweiker v. Gray Panthers, 453 U.S. at 37,101 S.Ct. at 2636; see also Schweiker v. Hogan,-U.S. at- & n. 6, 102 S.Ct. at 2601 & n. 6. Thus congressional intent leads to the conclusion that any procedural protections that ensure continuity in benefits should be accorded to the categorically needy.
We conclude that plaintiffs have made an extremely strong showing of likelihood of success gn their claim that defendant terminated their Medicaid benefits without following the requisite regulations. Plaintiffs argue that given this strong showing of likelihood of success on the merits, their burden of showing irreparable injury should be commensurately reduced. See Massachusetts Coalition of Citizens with Disabilities v. Civil Defense Agency, 649 F.2d 71, 75 (1st Cir.1981). We need not consider this, however, because plaintiffs have made a sufficient showing of irreparable harm.
Plaintiffs presented affidavits of several class members who, since termination, have been financially unable to obtain necessary medical treatment. Termination of benefits that causes individuals to forgo such necessary medical care is clearly irreparable injury. See Becker v. Toia, 439 F.Supp. 324, 336 (S.D.N.Y.1977); Bass v. Richardson, 338 F.Supp. 478, 489 (S.D.N.Y. 1971). At oral argument counsel for defendant admitted that the plaintiffs would be eligible for Medicaid unless their income drastically increased or the children reached the age of twenty-one. An increase in income for any of these plaintiffs sufficient to render them ineligible for Medicaid would be a minor miracle; reaching the age of twenty-one for most of the children is not actuarially possible within the time limits of this case. Defendant’s claimed injury from the loss of public funds to ineligible individuals is, in reality, no injury at all, just a remote possibility of injury. Thus the harm to plaintiffs far outweighs that of defendant and a preliminary injunction must issue.
The order of the district court denying preliminary injunctive relief to the subclass of plaintiffs is vacated. The case is remanded to the district court with instructions to issue forthwith a preliminary injunction reinstating the Medicaid benefits of the subclass of plaintiffs until the defendant complies with the statutory and regulatory provisions requiring redetermination of Medicaid eligibility prior to termination of benefits and affords plaintiffs their requisite fair hearing rights if they are found ineligible.
So ordered.
. Defendant’s claim that plaintiffs never applied for Medicaid benefits is simply incorrect. Since the federal regulations prohibit a state from requiring a separate application for Medicaid from AFDC recipients, an AFDC application once granted is an application for Medicaid. See Dixon v. Quern, 537 F.Supp. 983, 988 (N.D.I11.1982).
. The parties stipulated that since defendant’s issuance of notices in compliance with the district court’s order, only 82, or 1.86%, of the 4,400 terminated families have had their Medicaid benefits restored.
Question: What is the total number of respondents in the case? Answer with a number.
Answer:
|
songer_district
|
A
|
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".
Robert J. MOGLEY, Appellant, v. CHICAGO TITLE INSURANCE CO., Appellee.
No. 83-1069.
United States Court of Appeals, Eighth Circuit.
Submitted Sept. 16, 1983.
Decided Oct. 21, 1983.
Kaveney, Fleming, Russell, Beach & Mittleman, Lawrence J. Fleming, Thomas F. Flynn, Clayton, Mo., for appellant.
William R. Sullivan, Jr., and Joan Mc-Avinn Gale, Chicago, Ill., and Michael P. Casey, St. Louis, Mo., for appellee.
Before BRIGHT, ARNOLD and FAGG, Circuit Judges.
PER CURIAM.
Robert J. Mogley brought this action against his former employer, Chicago Title Insurance Company, seeking damages for unlawful termination of employment under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq. The district court dismissed the action because Mogley’s complaint indicated that he had failed to file a charge of employment discrimination with the Equal Employment Opportunity Commission within 180 days of the alleged discriminatory act. 553 F.Supp. 1045. On appeal from the judgment of dismissal, we affirm.
The pleadings disclose that on July 27, 1981, the company notified Mogley that the St. Louis office where Mogley worked would close on July 31,1981, and that Mogley’s employment would then terminate. In that letter, he was given the option of accepting early retirement. Mogley elected early retirement and executed an agreement with the company dated August 19, 1981, which required him to accept early retirement as of January 31, 1982. Mogley filed his age discrimination claim with the EEOC on February 16, 1982, more than 180 days after the letter notifying him of his termination, but within 180 days of both signing the agreement with the company and actually being terminated.
The district court determined that July 27, 1981, was the operative date for purposes of limiting the cause of action. The 180-day period begins to run when the allegedly improperly-motivated decision to terminate an employee is made and communicated to the employee, notwithstanding that the employee continues working until some later date. Delaware State College v. Ricks, 449 U.S. 250, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980). See Chardon v. Fernandez, 454 U.S. 6, 102 S.Ct. 28, 70 L.Ed.2d 6 (1981); Aronsen v. Crown Zellerbach, 662 F.2d 584, 593 (9th Cir.1981); Anness v. United Steelworkers of America, 26 FEP Cases 1340 (N.D.Ohio 1981). Thus, the district court decision is supported by case law.
Appellant Mogley contends that the doctrine of estoppel should toll the 180-day period of limitation, but fails to identify facts justifying estoppel. Mogley’s argument that he might have been denied substantially increased retirement benefits if he had filed a complaint with the EEOC before January 31, 1982, will not support equitable estoppel. In the July 27, 1981 letter from the company, Mogley was presented with a clear choice: accepting termination as of July 31, 1981, and receiving those benefits to which he was entitled on that date, or remaining on the payroll until January 31, 1982, when he would become eligible for substantially increased benefits. Mogley was not entitled to the additional retirement benefits as a matter of course; rather, this latter option was contingent on Mogley signing an agreement that released the company from potential liability as a result of his termination. This is certainly not a case where the employer lulled the employee into forgoing a timely filing by, for example, holding out the possibility of reinstatement. Mogley is correct in his assertion that had he filed his EEOC complaint prior to January 31, 1982, he risked losing the increased benefits. But this is only because he had agreed not to file a complaint in order to become entitled to those benefits.
The discrimination, if any, occurred when the company gave Mogley the option of accepting termination or remaining on the payroll until he was entitled to early retirement. Appellant cites no persuasive authority in the case law that an employer’s holding out of alternatives to the employee — here termination or early retirement— and the employee’s acceptance of the most favorable terms offered constitute a basis for tolling of the limitations period.
Accordingly, for the reasons set forth herein, we affirm.
Question: From which district in the state was this case appealed?
A. Not applicable
B. Eastern
C. Western
D. Central
E. Middle
F. Southern
G. Northern
H. Whole state is one judicial district
I. Not ascertained
Answer:
|
songer_appel1_1_3
|
F
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case.
SUN-MAID RAISIN GROWERS OF CALIFORNIA, Appellant, v. SUNAID FOOD PRODUCTS, INC., Appellee.
No. 22097.
United States Court of Appeals Fifth Circuit.
Feb. 10, 1966.
Dirks B. Foster, Boyken, Mohler & Foster, San Francisco, Cal., for appellant.
Phillip Goldman, Talbot D’Alemberte, Scott, McCarthy, Preston & Steel, Miami, Fla., for appellee.
Before JONES and THORNBERRY, Circuit Judges, and SLOAN, District Judge.
PER CURIAM.
Sun-Maid Raisin Growers of California, the appellant here and the plaintiff below, is an agricultural cooperative engaged primarily in the packing and marketing of raisins. It is incorporated under the laws of California. The trademark “SUN-MAID” has been in continuous use in interstate commerce by the appellant or its predecessors since 1915 and has been registered in the United States Patent Office since 1917. The mark has become incontestable within the provisions of 15 U.S.C.A. § 1065.
Sunaid Food Products, Inc., the appel-lee here and the defendant below, is a Florida corporation, engaged in the distribution of a large variety of fruit products under its trademark since 1948. It does not produce raisins and it does not sell them except as a component of one of its products.
The goods of both parties are normally sold in food stores and purchased by the same consumers, usually grocery-shopping housewives. The primary products are not in direct competition.
The appellant’s claim of trademark infringment is based solely on the Lanham Act, 15 U.S.C.A. § 1114(1) (a). A count for unfair competition was expressly waived on appeal. The trial court, sitting without a jury, found that, as there was no direct competition, the goods of Sunaid would not be confused with or mistaken for the goods of Sun-Maid. It was also found that there was no likelihood of the goods of Sunaid being mistakenly thought to have been produced or sponsored by Sun-Maid. The two trademarks were found not to be confusingly similar. These findings are matters of fact and not to be disturbed unless clearly erroneous. Frostie Co. v. Dr. Pepper Co., 5 Cir. 1965, 341 F.2d 363; Aloe Creme Lab., Inc. v. Texas Pharmacal Co., 5 Cir. 1964, 335 F.2d 72; American Foods, Inc. v. Golden Flake, Inc., 5 Cir. 1963, 312 F.2d 619; Sears, Roebuck & Co. v. All States Life Ins. Co., 5 Cir. 1957, 246 F.2d 161, cert. den., 355 U.S. 894, 78 S.Ct. 268, 2 L.Ed.2d 192.
The finding that Sunaid’s products were not likely to be mistaken for or confused with Sun-Maid’s products is not clearly erroneous. While the record indicates that Sun-Maid has made nominal shipments of various food products for a number of years, there is no indication that Sun-Maid has actually sold any of these goods in commerce. There is certainly no indication that Sun-Maid markets anything other than raisins in the area where Sunaid sells its products. As the goods are dissimilar, confusion of the goods is unlikely.
The finding that there is no likelihood of confusion between the sources of Sun-Maid’s products and those of Sunaid presents a more difficult problem. In its unpublished opinion, the trial court placed great emphasis on differences in appearance between the labels used by the parties. Reference is made to different pictures used in conjunction with the trademarks and to differences in the style of lettering used. The test, however, is not whether the labels can be distinguished, but whether the usual purchaser, a housewife doing her grocery shopping, would be likely to think Sunaid’s products were produced by or had some connection with Sun-Maid. Pure Foods, Inc. v. Minute Maid Corp., 5 Cir., 1954, 214 F.2d 792, cert. den., 348 U.S. 888, 75 S.Ct. 208, 99 L.Ed. 697. That Sun-Maid might use a somewhat different label and a different style of type in marketing a product other than its traditional raisins might seem likely to the housewife-purchaser.
The trial court found that Sun-Maid had offered no significant evidence of confusion or the likelihood of confusion. This Court has said that:
“In determining whether there [is] likelihood of confusion, a matter as to which there was no substantial evidence, we are of the view that a mere ocular examination of the two marks might permit the trial court to make its conclusion. However, all relevant evidence should be considered.” Frostie Co. v. Dr. Pepper Co., supra.
It is the labels that the prospective purchaser sees. The trademarks cannot be isolated from the labels on which they appear. The finding of an absence of proof of confusion or likelihood of confusion as to the product source is not clearly erroneous.
The judgment of the district court is
Affirmed.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case?
A. agriculture
B. mining
C. construction
D. manufacturing
E. transportation
F. trade
G. financial institution
H. utilities
I. other
J. unclear
Answer:
|
sc_authoritydecision
|
D
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the bases on which the Supreme Court rested its decision with regard to the legal provision that the Court considered in the case. Consider "judicial review (national level)" if the majority determined the constitutionality of some action taken by some unit or official of the federal government, including an interstate compact. Consider "judicial review (state level)" if the majority determined the constitutionality of some action taken by some unit or official of a state or local government. Consider "statutory construction" for cases where the majority interpret a federal statute, treaty, or court rule; if the Court interprets a federal statute governing the powers or jurisdiction of a federal court; if the Court construes a state law as incompatible with a federal law; or if an administrative official interprets a federal statute. Do not consider "statutory construction" where an administrative agency or official acts "pursuant to" a statute, unless the Court interprets the statute to determine if administrative action is proper. Consider "interpretation of administrative regulation or rule, or executive order" if the majority treats federal administrative action in arriving at its decision.Consider "diversity jurisdiction" if the majority said in approximately so many words that under its diversity jurisdiction it is interpreting state law. Consider "federal common law" if the majority indicate that it used a judge-made "doctrine" or "rule; if the Court without more merely specifies the disposition the Court has made of the case and cites one or more of its own previously decided cases unless the citation is qualified by the word "see."; if the case concerns admiralty or maritime law, or some other aspect of the law of nations other than a treaty; if the case concerns the retroactive application of a constitutional provision or a previous decision of the Court; if the case concerns an exclusionary rule, the harmless error rule (though not the statute), the abstention doctrine, comity, res judicata, or collateral estoppel; or if the case concerns a "rule" or "doctrine" that is not specified as related to or connected with a constitutional or statutory provision. Consider "Supreme Court supervision of lower federal or state courts or original jurisdiction" otherwise (i.e., the residual code); for issues pertaining to non-statutorily based Judicial Power topics; for cases arising under the Court's original jurisdiction; in cases in which the Court denied or dismissed the petition for review or where the decision of a lower court is affirmed by a tie vote; or in workers' compensation litigation involving statutory interpretation and, in addition, a discussion of jury determination and/or the sufficiency of the evidence.
GRANNY GOOSE FOODS, INC., et al. v. BROTHERHOOD OF TEAMSTERS & AUTO TRUCK DRIVERS, LOCAL NO. 70 OF ALAMEDA COUNTY, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA
No. 72-1566.
Argued January 8, 1974—
Decided March 4, 1974
Marshall, J., delivered the opinion of the Court, in which Douglas, Brennan, White, and Blackmun, JJ., joined. Rehnquist, J., filed an opinion concurring in the judgment, in which Burger, C. J., and Stewart and Powell, JJ., joined, post, p. 445.
George J. Tichy II argued the cause for petitioners. With him on the briefs was Wesley J. Fastiff.
Duane B. Beeson argued the cause for respondent. With him on the brief were Victor J. Van Bourg and Bernard Dunau.
Mr. Justice Marshall
delivered the opinion of the Court.
This case concerns the interpretation of 28 U. S. C. § 1450, which provides in pertinent part: “Whenever any action is removed from a State court to a district court of the United States . . . [a] 11 injunctions, orders, and other proceedings had in such action prior to its removal shall remain in full force and effect until dissolved or modified by the district court.” The District Court held respondent Union in criminal contempt for violating a temporary restraining order issued by the California Superior Court on May 18, 1970, prior to the removal of the case from the Superior Court to the District Court. The Court of Appeals reversed, one judge dissenting, on the ground that the temporary restraining order had expired long before November 30, 1970, the date of the alleged contempt. 472 F. 2d 764 (CA9 1973). The court reasoned that under both § 527 of the California Code of Civil Procedure and Fed. Rule Civ. Proc. 65 (b), the temporary restraining order must have expired no later than June 7, 1970, 20 days after its issuance. The court rejected petitioners’ contention that the life of the order was indefinitely prolonged by § 1450 “until dissolved or modified by the district court,” holding that the purpose of that statute “is to prevent a break in the force of an injunction or a restraining order that could otherwise occur when jurisdiction is being shifted,” 472 F. 2d, at 767, not to “create a special breed of temporary restraining orders that survive beyond the life span imposed by the state law from which they spring and beyond the life that the district court could have granted them had the orders initiated from the federal court.” Id., at 766.
As this understanding of the statute was in conflict 'with decisions of two other Circuits interpreting § 1450 to preclude the automatic termination of state court temporary restraining orders, we granted certiorari. 414 U. S. 816 (1973). Finding ourselves in substantial agreement with the analysis of the Ninth Circuit in the present case, we affirm.
I
On May 15, 1970, petitioners Granny Goose Foods, Inc., and Sunshine Biscuits, Inc., filed a complaint in the Superior Court of California for the county of Alameda alleging that respondent, a local Teamsters Union, and its officers and agents, were engaging in strike activity in breach of national and local collective-bargaining agreements recently negotiated by multiunion-multiemployer bargaining teams. Although the exact nature of the underlying labor dispute is unclear, its basic contours are as follows: The Union was unwilling to comply with certain changes introduced in the new contracts; it believed it was not legally bound by the new agreements because it had not been a part of the multiunion bargaining units that negotiated the contracts; and it wanted to negotiate separate contracts with petitioner employers.
The same day the complaint was filed, the Superior Court issued a temporary restraining order enjoining all existing strike activity and ordering the defendants to show cause on May 26, 1970, why a preliminary injunction should not issue during the pendency of the suit. An amended complaint adding petitioner Standard Brands, Inc., was filed on May 18, and a modified temporary restraining order was issued that same day adding a prohibition against strike activities directed toward that employer.
On May 19, 1970, after having been served with the May 15 restraining order but before the scheduled hearing on the order to show cause, the Union and the individual defendants removed the proceeding to the District Court on the ground that the action arose under § 301 of the Labor Management Relations Act, 1947, 61 Stat. 156, 29 U. S. C. § 185. On May 20, 1970, an amended removal petition was filed to take into account the modified temporary restraining order of May 18.
Simultaneously with the filing of the removal petition, the defendants filed a motion in the District Court to dissolve the temporary restraining order. The sole ground alleged in support of the motion was that the District Court lacked jurisdiction to maintain the restraining order under this Court’s decision in Sinclair Refining Co. v. Atkinson, 370 U. S. 195 (1962), where the Court held that notwithstanding § 301’s grant of jurisdiction to federal courts over suits between employers and unions for breach of collective-bargaining agreements, § 4 of the Norris-La Guardia Act, 47 Stat. 70, 29 U. S. C. § 104, barred federal courts from issuing an injunction against a strike allegedly in violation of a collective-bargaining agreement containing a no-strike clause.
The employers then filed a motion to remand the case to the Superior Court, alleging that the defendants had waived their right to removal by submitting to the jurisdiction of the state court. The Union’s motion to dissolve and the employers’ motion to remand came on for a hearing on May 27, 1970. The motion to remand was denied from the bench. With respect to the motion to dissolve, the employers brought to the attention of the District Court our grant of certiorari in Boys Markets v. Retail Clerks Union, 396 U. S. 1000 (1970), which was interpreted as an indication that the Court would re-examine its holding in Sinclair. As Boys Markets had been argued here in April 1970, the District Court refrained from taking any action on the motion to dissolve until it received further guidance from this Court. On June 1, 1970, we handed down our decision in Boys Markets v. Retail Clerks Union, 398 U. S. 235, overruling Sinclair and holding that a district court could enjoin a strike in breach of a no-strike clause in a collective-bargaining agreement and order arbitration under the agreement. Three days later, on June 4, 1970, the District Court entered a brief order denying the motion to dissolve the state court temporary restraining order, citing Boys Markets.
Evidently picketing and strike activity stopped and the labor dispute remained dormant after June 4. The flame was rekindled, however, when on November 9, 1970, the Union sent, the employers telegrams requesting bargaining to arrive at a collective-bargaining agreement and expressing the Union’s continued belief that it was not bound by the national and local agreements negotiated by the multiunion-multiemployer groups. The employers answered that there was no need to bargain because, in their view, the Union was bound by the national and local agreements. The conflict remained unresolved, and on November 30, 1970, the Union commenced its strike activity once again.
The next day the employers moved the District Court to hold the Union, its agents, and officers in contempt of the modified temporary restraining order issued by the Superior Court on May 18. A hearing was held on the motion the following day. The Union’s argument that the temporary restraining order had long since expired was rejected by the District Court on two grounds. First, the court concluded that its earlier action denying the motion to dissolve the temporary restraining order gave the order continuing force and effect. Second, the court found that § 1450 itself served to continue the restraining order in effect until affirmatively dissolved or modified by the court. Concluding after the hearing that the Union had willfully violated the restraining order, the District Court held it in criminal contempt and imposed a fine of $200,000.
II
Leaving aside for the moment the question whether the order denying the motion to dissolve the temporary restraining order was effectively the grant of a preliminary injunction, it is clear that whether California law or Rule 65 (b) is controlling, the temporary restraining order issued by the Superior Court expired long before the date of the alleged contempt. Section 527 of the California Code of Civil Procedure, under which the order was issued, provides that temporary restraining orders must be returnable no later than 15 days from the date of the order, 20 days if good cause is shown, and unless the party obtaining the order then proceeds to submit its case for a preliminary injunction, the temporary restraining order must be dissolved. Similarly, under Rule 65 (b), temporary restraining orders must expire by their own terms within 10 days after entry, 20 days if good cause is shown.
Petitioners argue, however, that notwithstanding the time limitations of state law, § 1450 keeps all state court injunctions, including ex parte temporary restraining orders, in full force and effect after removal until affirmatively dissolved or modified by the district court. To the extent this reading of § 1450 is inconsistent with the time limitations of Rule 65 (b), petitioners contend the statute must control.
In our view, however, § 1450 can and should be interpreted in a manner which fully serves its underlying purposes, yet at the same time places it in harmony with the important congressional policies reflected in the time limitations in Rule 65 (b).
At the outset, we can find no basis for petitioners' argument that § 1450 was intended to turn ex parte state court temporary restraining orders of limited duration into federal court injunctions of unlimited duration. Section 1450 was simply designed to deal with the unique problem of a shift in jurisdiction in the middle of a case which arises whenever cases are removed from state to federal court. In this respect two basic purposes are served. Judicial economy is promoted by providing that proceedings had in state court shall have force and effect in federal court, so that pleadings filed in state court, for example, need not be duplicated in federal court. In addition, the statute ensures that •interlocutory orders entered by the state court to protect various rights of the parties will not lapse upon removal. Thus attachments, sequestrations, bonds, undertakings, securities, injunctions, and other orders obtained in state court all remain effective after the case is removed to federal court.
But while Congress clearly intended to preserve the effectiveness of state court orders after removal, there is no basis for believing that § 1450 was designed to give injunctions or other orders greater effect after removal to federal court than they would have had if the case had remained in state court. After removal, the federal court “takes the case up where the State court left it off.” Duncan v. Gegan, 101 U. S. 810, 812 (1880). The “full force and effect” provided state court orders after removal of the case to federal court was not intended to be more than the force and effect the orders would have had in state court.
More importantly, once a case has been removed to federal court, it is settled that federal rather than state law governs the future course of proceedings, notwithstanding state court orders issued prior to removal. Section 1450 implies as much by recognizing the district court's authority to dissolve or modify injunctions, orders, and all other proceedings had in state court prior to removal. This Court resolved this issue long ago in Ex parte Fisk, 113 U. S. 713 (1885). There it was argued that an order to take the deposition of a witness issued by the state court prior to removal was binding in federal court and could not be reconsidered by the federal court, notwithstanding its inconsistency with certain federal statutes governing procedure in federal courts. The Court rejected this contention, and said that the predecessor of § 1450
“declares orders of the State court, in a case after-wards removed, to be in force until dissolved or modified by the Circuit Court. This fully recognizes the power of the latter court over such orders. And it was not intended to enact that an order made in the State court, which affected or might affect the mode of trial yet to be had, could change or modify the express directions of an act of Congress on that subject.
“The petitioner having removed his case into the Circuit Court has a right to have its further progress governed by the law of the latter court, and not by that of the court from which it was removed; and if one of the advantages of this removal was an escape from this examination, he has a right to that benefit if his case was rightfully removed.” Id., at 725-726.
See also King v. Worthington, 104 U. S. 44 (1881); Freeman v. Bee Machine Co., 319 U. S. 448 (1943).
By the same token, respondent Union had a right to the protections of the time limitation in Rule 65 (b) once the case was removed to the District Court. The Federal Rules of Civil Procedure, like other provisions of federal law, govern the mode of proceedings in federal court after removal. See Fed. Rule Civ. Proc. 81 (c). In addition, we may note that although the durational limitations imposed on ex parte restraining orders are now codified in a federal rule, they had their origin in § 17 of the Clayton Act of 1914, 38 Stat. 737. As the House Report recommending its enactment emphasized, the durational and other limitations imposed on temporary restraining orders were thought necessary to cure a serious problem of “ill-considered injunctions without notice.” The stringent restrictions imposed by § 17, and now by Rule 65, on the availability of ex parte temporary restraining orders reflect the fact that our entire jurisprudence runs counter to the notion of court action taken before reasonable notice and an opportunity to be heard has been granted both sides of a dispute. Ex parte temporary restraining orders are no doubt necessary in certain circumstances, cf. Carroll v. President and Comm’rs of Princess Anne, 393 U. S. 175, 180 (1968), but under federal law they should be restricted to serving their underlying purpose of preserving the status quo and preventing irreparable harm just so long as is necessary to hold a hearing, and no longer.
We can find no indication that Congress intended § 1450 as an exception to its broader, longstanding policy of restricting the duration of ex parte restraining'orders. The underlying purpose of § 1450 — ensuring that no lapse in a state court temporary restraining order will occur simply by removing the case to federal court — and the policies reflected in Rule 65 (b) can easily be accommodated by applying the following rule: An ex parte temporary restraining order issued by a state court prior to removal remains in force after removal no longer than it would have remained in effect under state law, but in no event does the order remain in force longer than the time limitations imposed by Rule 65 (b), measured from the date of removal.
Applying our holding to the present case is simple. The temporary restraining order was issued by the Superior Court on May 18, 1970, and would have remained in effect in the state court no longer than 15 days, or until June 2. The case was removed to federal court on May 20, 1970. The temporary restraining order therefore expired on May 30, 1970, applying the 10-day limitation of Rule 65 (b) from the date of removal. Accordingly, no order was in effect on November 30, 1970, and the Union violated no order when it resumed its strike at that time.
Ill
We now turn to petitioners’ argument that, apart from the operation of § 1450, the District Court’s denial of the Union’s motion to dissolve the temporary restraining order effectively converted the order into a preliminary injunction of unlimited duration. The Court of Appeals rejected this argument out of hand, stating that “[t]he Union’s unsuccessful effort to dissolve the order before it died a natural death did not convert the temporary restraining order into a preliminary injunction or estop it from relying on the death certificate.” 472 F. 2d, at 767. We reach essentially the same conclusion.
As indicated earlier, once a case has been removed to federal court, its course is to be governed by federal law, including the Federal Rules of Civil Procedure. Rule 65 (b) establishes a procedure whereby the party against whom a temporary restraining order has issued can move to dissolve or modify the injunction, upon short notice to the party who obtained the order. Situations may arise where the parties, at the time of the hearing on the motion to dissolve the restraining order, find themselves in a position to present their evidence and legal arguments for or against a preliminary injunction. In such circumstances, of course, the court can proceed with the hearing as if it were a hearing on an application for a preliminary injunction. At such hearing, as in any other hearing in which a preliminary injunction is sought, the party seeking the injunction would bear the burden of demonstrating the various factors justifying preliminary injunctive relief, such as the likelihood of irreparable injury to it if an injunction is denied and its likelihood of success on the merits.
On the other hand, situations might arise where the parties are not prepared and do not intend at the hearing on the motion to dissolve or modify the temporary restraining order to present their cases for or against a preliminary injunction. In such circumstances, the appropriate procedure would be for the district court to deal with the issues raised in the motion to dissolve or modify the restraining order, but to postpone for a later hearing, still within the time limitations of Rule 65 (b), the application for a preliminary injunction. See generally C. Wright & A. Miller, Federal Practice & Procedure: Civil § 2954, p. 523 (1973 ed.).
In the present case we think it plain that the hearing on the Union's motion to dissolve the restraining order cannot be considered to be a hearing on a preliminary-injunction, and that the District Court’s order denying the motion to dissolve cannot reasonably be construed as the grant of a preliminary injunction. There is no indication in the record that either party or the District Court itself treated the May 27 hearing as a hearing on an application for a preliminary injunction. The employers made no attempt at that time to present their case for a preliminary injunction. Likewise, the Union made no attempt at that time to present its defense that it was not bound by the new national and local agreements because it had made a timely withdrawal from the multiunion bargaining unit negotiating said contracts. See n. 3, supra. The court itself did not indicate that it was undertaking a hearing on a preliminary injunction. As far as we can tell, it never addressed itself at the hearing to the various equitable factors involved in considering a preliminary injunction, but only considered the employers' argument that the case should be remanded to the state court because the right to remove had been waived by the Union's appearing in the state proceeding and the Union’s argument that the temporary restraining order should be dissolved for want of jurisdiction under the Sinclair holding.
We cannot accept petitioners’ argument that the controlling factor is that the Union had the opportunity to be heard on the merits of the preliminary injunction when it moved in the District Court to dissolve the temporary restraining order. Rule 65 (b) does not place upon the party against whom a temporary restraining order has issued the burden of coming forward and presenting its case against a preliminary injunction. To the contrary, the Rule provides that “[i]n case a temporary restraining order is granted without notice, the motion for a preliminary injunction shall be set down for hearing at the earliest possible time . . . and when the motion comes on for hearing the party who obtained the temporary restraining order shall proceed with the application for a preliminary injunction and, if he does not do so, the court shall dissolve the temporary restraining order.” The burden was on the employers to show that they were entitled to a preliminary injunction, not on the Union to show that they were not.
Even were we to assume that the District Court had intended by its June 4 order to grant a preliminary injunction, its intention was not manifested in an appropriate form. Where a hearing on a preliminary injunction has been held after issuance of a temporary restraining order, and where the District Court decides to grant the preliminary injunction, the appropriate procedure is not simply to continue in effect the temporary restraining order, but rather to issue a preliminary injunction, accompanied by the necessary findings of fact and conclusions of law. As stated by the Second Circuit:
“The fact that notice is given and a hearing held cannot serve to extend indefinitely beyond the period limited by [Rule 65 (b)] the time during which a temporary restraining order remains effective. The [Rule] contemplates that notice and hearing shall result in an appropriate adjudication, i. e., the issuance or denial of a preliminary injunction, not in extension of the temporary stay.” Pan American World Airways v. Flight Engineers’ Assn., 306 F. 2d 840, 842 (1962) (footnotes omitted).
See also Sims v. Greene, 160 F. 2d 512 (CA3 1947).
As the fine imposed in this case exemplifies, serious penalties can befall those who are found to be in contempt of court injunctions. Accordingly, one basic principle built into Rule 65 is that those against whom an injunction is issued should receive fair and precisely drawn notice of what the injunction actually prohibits.
“The judicial contempt power is a potent weapon. When it is founded upon a decree too vague to be understood, it can be a deadly one. Congress responded to that danger by requiring that a federal court frame its orders so that those who must obey them will know what the court intends to require and what it means to forbid. . . . The most fundamental postulates of our legal order forbid the imposition of a penalty for disobeying a command that defies comprehension.” International Longshoremen’s Assn. v. Philadelphia Marine Trade Assn., 389 U. S. 64, 76 (1967).
It would be inconsistent with this basic principle to countenance procedures whereby parties against whom an injunction is directed are left to guess about its intended duration. Rule 65 (b) provides that temporary restraining orders expire by their own terms within 10 days of their issuance. Where a court intends to supplant such an order with a preliminary injunction of unlimited duration pending a final decision on the merits or further order of the court, it should issue an order clearly saying so. And where it has not done so, a party against whom a temporary restraining order has issued may reasonably assume that the order has expired within the time limits imposed by Rule 65 (b). Here, since the only orders entered were a temporary restraining order of limited duration and an order denying a motion to dissolve the temporary order, the Union had no reason to believe that a preliminary injunction of unlimited duration had been issued.
Since neither § 1450 nor the District Court's denial of the Union’s motion to dissolve the temporary restraining order effectively converted that order izrto a preliminary injunction, no order was in effect on November 30, 1970, over six months after the temporary restraining order was issued. There being no order to violate, the District Court erred in holding the Union in contempt, and the judgment of the Court of Appeals reversing the District Court’s adjudication of contempt must be
Affirmed.
Title 28 U. S. C. § 1450:
“Whenever any action is removed from a State court to a district court of the United States, any attachment or sequestration of the goods or estate of the defendant in such action in the State court shall hold the goods or estate to answer the final judgment or decree in the same manner as they would have been held to answer final judgment or decree had it been rendered by the State court.
“All bonds, undertakings, or security given by either party in such action prior to its removal shall remain valid and effectual notwithstanding such removal.
“All injunctions, orders, and other proceedings had in such action prior to its removal shall remain in full force and effect until dissolved or modified by the district court.”
See Appalachian Volunteers, Inc. v. Clark, 432 F. 2d 530 (CA6 1970), cert. denied, 401 U. S. 939 (1971); Morning Telegraph v. Powers, 450 F. 2d 97 (CA2 1971), cert. denied, 405 U. S. 954 (1972). See also The Herald Co. v. Hopkins, 325 F. Supp. 1232 (NDNY 1971); Peabody Coal Co. v. Barnes, 308 F. Supp. 902 (ED Mo. 1969).
This dispute was also the subject of a proceeding before the National Labor Relations Board. See Airco Industrial Gases, 195 N. L. R. B. 676 (1972). From the findings of fact in that proceeding, it appears that since 1964 it has been the practice in the trucking industry for representatives of a group of the various Teamsters locals and a group of various trucking employers to negotiate national agreements and supplemental agreements covering local areas. Agreements covering the 1967-1970 period had expired on March 31, 1970. Negotiations between the negotiating committees of the multiunion and multiemploj'er groups toward a contract for the 1970-1973 period began in January 1970 and continued in February and April. On April 29, the Teamsters negotiating committee approved the national and various supplemental agreements and on April 30, two representatives from each of the Teamsters locals in the multiunion group approved the agreements. Some time thereafter a nationwide referendum vote of all Teamsters members was conducted and it was determined that the employees had ratified the agreements.
The Union claimed it was not bound by the new agreements because it had made a timely withdrawal from the multiunion-multiemployer bargaining unit in a letter of January 28, 1970, to various employers, informing them of the Union’s intention to negotiate a separate agreement from the national and supplemental agreement. The Board ultimately determined that the Union’s withdrawal was not timely because negotiations had begun on January 7, 1970, prior to the attempted withdrawal. We, of course, express no view on this issue.
In Avco Corp. v. Aero Lodge No. 735, 390 U. S. 557 (1968), we held that § 301 (a) suits initially brought in state courts may be removed to the designated federal forum under the federal-question removal jurisdiction delineated in 28 U. S. C. § 1441.
Three-fourths of the fine was conditioned on the Union’s failure to end the strike within 24 hours of the court’s order, one-half on failure to end the strike within 48 hours, and one-fourth on failure to end the strike within 72 hours.
Although we do not rest our decision on this point, there seems to be much evidence in the record suggesting that even if the restraining order remained in effect and had been violated, the violation was not willful. A finding that the violation was willful obviously presupposes knowledge on the part of the Union that the order was still in effect. Whether or not the order in fact remained in effect on November 30, the Union evidently believed it had expired. Prior to commencing its strike in November, the Union informed the employers through its attorney that it did “not understand from the file that there is presently in effect any order which forbids Local 70 from bargaining with the employer, or from pressing its position that it has a right to bargain for a separate contract. A motion to dissolve a temporary restraining order against economic action was denied by the federal court, but that temporary restraining order has long since become ineffective by virtue of the statutory limitation on its duration, and there has been no application for a preliminarj- injunction.
“Accordingly, the federal court case is pending, but there are no outstanding orders which affect the assertion by Local 70 of rights which it claims.. ..” App. 67.
Section 527 (Supp. 1974) provides:
“An injunction may be granted at any time before judgment upon a verified complaint, or upon affidavits if the complaint in the one case, or the affidavits in the other, show satisfactorily that sufficient grounds exist therefor. A copy of the complaint or of the affidavits, upon which the injunction was granted, must, if not previously served, be served therewith.
“No preliminary injunction shall be granted without notice to the opposite party; nor shall any temporary restraining order be granted without notice to the opposite party, unless it shall appear from facts shown by affidavit or by the verified complaint that great or irreparable injury would result to the applicant before the matter can be heard on notice. In case a temporary restraining order shall be granted without notice, in the contingency above specified, the matter shall be made returnable on an order requiring cause to be shown why the injunction, should not be granted, on the earliest day that the business of the court will admit of, but not later than 15 days or, if good cause appears to the court, 20 dajcs from the date of such order. When the matter first comes up for hearing the party who obtained the temporary restraining order must be ready to proceed and must have served upon the opposite party at least two daj's prior to such hearing, a copy of the complaint and of all affidavits to be used in such application and a copy of his points and authorities in support of such application; if he be not ready, or if he shall fail to serve a copy of his complaint, affidavits and points and authorities, as herein required, the court shall dissolve the temporary restraining order. The defendant, however, shall be entitled, as of course, to one continuance for a reasonable period, if he desire it, to enable him to meet the application for the preliminary injunction. The defendant may, in response to such order to show cause, present affidavits relating to the granting of the pre-liminar) injunction, and if such affidavits are served on the applicant at least two days prior to the hearing, the applicant shall not be entitled to any continuance on account thereof. On the day upon which such order is made returnable, such hearing shall take precedence of all other matters on the calendar of said day, except older matters of the same character, and matters to which special precedence maj' be given bj' law. When the cause is at issue it shall be set for trial at the earliest possible date and shall take precedence of all other cases, except older matters of the same character, and matters to which special precedence may be given by law."
The time limitation of § 527 has been strictly construed by the California courts. See, e. g., Smith v. Superior Court, 64 Cal. App. 722, 222 P. 857 (1923); Sharpe v. Brotzman, 145 Cal. App. 2d 354, 302 P. 2d 668 (1956); Oksner v. Superior Court, 229 Cal. App. 2d 672, 40 Cal. Rptr. 621 (1964); Agricultural Prorate Comm’n v. Superior Court, 30 Cal. App. 2d 154, 85 P. 2d 898 (1938).
Petitioners argue that the time limitation of § 527 is not applicable here because it is operative only with respect to orders granted without notice to the adverse party. In the present case, petitioners indicate, telephonic notice was given to the Union’s counsel on May 15, the day the employers first sought the restraining order, counsel was served with all documents prior to a hearing arranged that day, and counsel was present in the courtroom and presented argument on behalf of the Union at that hearing.
We think it clear from § 527, however, that this kind of informal notice and hearing does not convert the temporary restraining order into a preliminary injunction of unlimited duration under state law. Section 527 provides that when a case comes up for a hearing on a preliminary injunction, the party seeking the injunction "must have served upon the opposite party at least two days prior to such hearing, a copy of the complaint and of all affidavits to be used in such application and a copy of his points and authorities in support of such application . . . (Emphasis added.) In providing that no preliminary injunction shall be granted without notice to the opposite party, we think the statute thus contemplates notice of at least two days, with a meaningful opportunity to prepare for the hearing, rather than the kind of informal, same-day notice that was given in this case.
This interpretation of state law is supported on the facts of this case. Even though the Superior Court held some sort of hearing, with Union counsel attending, before granting the temporary restraining order, the court obviously felt that the hearing was not a sufficient basis for ruling on the preliminary injunction. Accordingly, in the same order granting the temporary restraining order, the court set the case for a hearing on the application for a preliminary injunction within the 15-day limit imposed by § 527.
In any event, we need not rest our holding on this interpretation of state law, for even if this restraining order could have had unlimited duration under California law, it was subject to the time limitations of Rule 65 (b) after the case was removed to federal court. See infra, at 437-440. Although by its terms Rule 65 (b), like § 527, only limits the duration of restraining orders issued without notice, we think it applicable to the order in this case even though informal notice was given. The 1966 Amendments to Rule 65 (b), requiring the party seeking a temporary restraining order to certify to the court in writing the efforts, if any, which have been made to give either written or oral notice to the adverse party
Question: What is the basis of the Supreme Court's decision?
A. judicial review (national level)
B. judicial review (state level)
C. Supreme Court supervision of lower federal or state courts or original jurisdiction
D. statutory construction
E. interpretation of administrative regulation or rule, or executive order
F. diversity jurisdiction
G. federal common law
Answer:
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songer_genresp1
|
C
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed respondent.
UNITED STATES of America, Appellee, v. Russell BUFALINO, Defendant-Appellant.
No. 846, Docket 81-1474.
United States Court of Appeals, Second Circuit.
Argued March 23, 1982.
Decided June 15, 1982.
Nathaniel H. Akerman, Asst. U. S. Atty., S. D. N. Y., New York City (John S. Martin, Jr., U. S. Atty., S. D. N. Y„ Mark F. Pomerantz, Asst. U. S. Atty., New York City, of counsel), for appellee.
Charles P. Gelso, Wilkes-Barre, Pa., for defendant-appellant.
Before FEINBERG, Chief Judge, OAKES, Circuit Judge, and FRIEDMAN, Chief Judge, United States Court of Claims.
Sitting by designation.
FEINBERG, Chief Judge:
Russell Bufalino appeals from a judgment of conviction entered in November 1981 in the United States District Court for the Southern District of New York, Kevin T. Duffy, J., after a jury trial. Appellant’s principal argument on appeal is that he was denied his statutory right to a speedy trial. We find that this and appellant’s other claims are without merit, and we affirm.
Briefly, the events leading to this appeal are as follows. In April 1976, appellant attempted to recover a $25,000 debt from Jack Napoli by threatening to kill him. Unfortunately for appellant, prior to their meeting, Napoli had taken the precaution of concealing a tape recorder on his body, and used it to record Bufalino’s conversation. On the basis of Napoli’s testimony, Bufalino was indicted for extortion. Anticipating that the government would call Napoli as a witness at trial, appellant arranged with a business acquaintance, James Fratianno, for Napoli’s elimination. This arrangement was unsuccessful, possibly because Napoli had joined the Justice Department’s Witness Protection Program and had been relocated and given a new identity. In any case, Napoli lived to testify at the extortion trial and Bufalino was convicted of extortion in August 1977 and was sentenced to four years in prison, see United States v. Bufalino, 576 F.2d 446 (2d Cir.), cert. denied, 439 U.S. 928, 99 S.Ct. 314, 58 L.Ed.2d 321 (1978). While in jail, appellant again sought to murder Napoli, this time with the aid of another prisoner, Steven Fox, who was about to be paroled. This attempt also failed, but in December 1980, Bufalino was indicted for conspiring to obstruct justice. On April 2, 1981, this indictment was superseded by a second indictment charging Bufalino with conspiring to violate the civil rights of a United States citizen, in violation of 18 U.S.C. § 241 (Count One), and endeavoring to obstruct justice, in violation of 18 U.S.C. § 1503 (Count Two).
At trial, James Fratianno, who was by this time also a member of the Witness Protection Program, and- Steven Fox, who was in jail on other charges but had been offered the benefits of that program after his release, testified for the prosecution. Bufalino’s defense was a general denial. Testifying in his own behalf, appellant denied that he intended to have Napoli killed for his role in the extortion prosecution. He also called several witnesses to contradict elements in the prosecution’s case. In rebuttal, the Government played the tape recording of the threat on Napoli’s life. The jury convicted Bufalino on both counts, and he was sentenced to 10 years imprisonment and fined $10,000 on Count One and to a concurrent term of five years imprisonment and fined $5,000 on Count Two. Appellant claims that his conviction must be reversed because he was denied his statutory right to a speedy trial, inadmissible testimony was introduced at trial, and certain jury instructions were in error.
I. Speedy Trial
Bufalino’s speedy trial claim is based on events that occurred between his arraignment on January 9, 1981 and the trial, which began on October 19, 1981. Under the Speedy Trial Act, 18 U.S.C. §§ 3161 et seq., a defendant is entitled to have the charges against him dismissed if he is not brought to trial within 70 days of arraignment, unless the excess days fall within a list of exclusions set out in § 3161(h). Since Russell Bufalino was tried 283 days after he was arraigned, the issue before us is whether 213 of those days are excludable.
The government has presented us with several ways to reckon the excludable periods that arose in this prosecution. Its most forcefully urged alternative, which it presented at oral argument, involves excluding one day for Bufalino’s co-defendant’s bail hearing on January 13 under § 3161(h)(l)(J) [hereinafter “(J)”], two days for the weekend preceding the trial under Fed.R.Crim.P. 45(a); and 210 days for motion practice under § 3161(h)(1)(F) [“(F)”]. To arrive at this figure for motion practice, the government excludes the entire period from January 20, when defense counsel claims to have discussed a schedule for filing pretrial motions with Judge Duffy’s law clerk, to July 28, when the court decided all the pending motions with the exception of the government’s motion to sequester the jury. In addition, the government excludes the time from September 11, when it moved for a ruling on the admissibility of evidence relating to Bufalino’s connections with La Cosa Nostra, to September 30, when that motion was decided.
Appellant objects to this calculation on several grounds. The most cogent of these is that (J) limits the amount of time excludable for the consideration of pretrial motions. Under that subsection, which is reproduced in note 5 supra, a maximum of 30 days is excludable when a “proceeding concerning the defendant is actually under advisement by the court.” In this case, a first round of motions was fully submitted by March 24, and a second round (which was precipitated by the filing of a superseding indictment) was fully submitted by May 26. As a result, even if a full period of advisement is allowed for each set of motions, only 60 of the 126 days between March 25 and July 28 are excludable by reason of subsection (J). The Government reads the statute differently. It contends that (J) and (F) should not be read together, that (F) — which does not impose a numerical limitation on the time it excludes — is the only subsection that applies to pretrial motions, and, apparently, that (J) refers to other (unspecified) proceedings that could concern a defendant.
The application of (J) to the period of time during which a trial judge considers pretrial motions is an issue of first impression in this circuit, see United States. v. New Buffalo Amusement Corp., 600 F.2d 368, 373 n.5 (2d Cir. 1979). While we think that a cursory reading of the two subsections lends some support to the government’s position, a careful look at the legislative history of the Speedy Trial Act and its 1979 amendments makes that theory untenable.
We start with the 1974 Act, which provided that:
(h) The following periods of delay shall be excluded ... in computing the time within which the trial of any such offense must commence:
(1) Any period of delay resulting from other proceedings concerning the defendant, including but not limited to—
(E) delay resulting from hearings on pretrial motions;
(G) delay reasonably attributable to any period, not to exceed thirty days, during which any proceeding concerning the defendant is actually under advisement.
Under the 1974 Act, subsection (E), which is the predecessor of current subsection (F), was limited in scope. It was apparently aimed at excluding only the days on which pretrial motions were argued in court, and not the days from the filing of the motion to the hearing thereon, see Frase, The Speedy Trial Act of 1974, 43 U.Chi.L.Rev. 667, 692 (1976). Subsection (G), the predecessor of (J), was intended to deal with delay that arose after pretrial motions were submitted, as the following passage from the House Report that accompanied the bill makes clear:
Section 8161(h)(1)(g) provides for the exclusion of time during which any proceeding concerning the defendant is under advisement. The Subcommittee added language which would limit to 30 days the time that each proceeding could be held under actual advisement. The amendment was adopted at the suggestion of Detroit defense attorney Mr. Barris, who said:
Now, I think the language which is now contained within the bill is that a reasonable time should be allowed when a matter is held under advisement by the district judge. This, of course, is a very flexible term, term “reasonable,” and I would suggest that a period of 30 days after all oral argument is heard and all briefs have been submitted on the matter under advisement is not an unreasonable period in which the district judge could act, I do not think that this would compel the judge to reach on any particular issue an improvident answer merely because he is held to a time limit of 30 days. And yet if such a provision or restriction were written into the Act, it would effectively plug up one of the loopholes which I conceive to now exist whereby a district judge were he prone to do so, could well “sit on a matter” for an indefinite period of time and thus rather effectively defeat the purposes of the bill.
The Committee concurs with the views of Mr. Barris and also with the Alaska speedy trial rules of court, which provides that no pre-trial motion shall be held under advisement for more than 30 days. This modification in no way affects the prerogative of the court to continue cases upon its own motion where, due to the complexity or unusual nature of the case, additional time is needed to consider matters before the court, as set forth in section 3161(h)(8).
H.R.Rep.No.93-1508, 93d Cong., 2d Sess. (1974), reprinted in 1974 U.S.Code Cong. & Admin.News 7401, 7425-26.
By 1979, the courts had obtained some experience with the Act, and Congress chose to amend certain portions to reflect that experience. Subsection (G) apparently had not caused the courts any problems, and it was not changed in 1979, except for a change in lettering to (J). Subsection (E), however, had led to controversy, and Congress decided to reword it to make its meaning more precise. The accompanying reports are revealing as to legislative intent:
The provision of existing law relating to exclusion of periods of delay “resulting from hearings on pretrial motions” is revised to avoid an unduly restrictive interpretation of the exclusion as extending only to the actual time consumed in a pretrial hearing. The committee approves the expansion of this exclusion to “delay resulting from any pretrial motion, from the filing of the motion, through the conclusion of the hearing on, or other prompt disposition of, such motion” with the intention that potentially excessive and abusive use of this exclusion be precluded by district or circuit guidelines, rules, or procedures relating to motions practice.
H.R.Rep.No.96-390, 96th Cong., 1st Sess (1979), reprinted in 1979 U.S.Code Cong. & Admin.News 805, 814. And more significantly,
Finally, the section provides exclusion of time from filing to the conclusion of hearings on or “other prompt disposition” of any motion. This later language is intended to provide a point at which time will cease to be excluded, where motions are decided on the papers filed without hearing. In using the words “prompt disposition”, the committee intends to make it clear that, in excluding time between filing and disposition on the papers, the Committee does not intend to permit circumvention of the 30-days, “under advisement” provision contained in Subsection (h)(l)(J). Indeed, if motions are so simple or routine that they do not require a hearing, necessary advisement time should be considerably less than 30 days. Nor does the Committee intend that additional time be made eligible for exclusion by postponing the hearing date or other disposition of the motions beyond what is reasonably necessary.
S.Rep.No.96-212, 96th Cong., 1st Sess. 33-34 (1979), reprinted in Federal Judicial Center, Legislative History of Title I of the Speedy Trial Act 115 (1980) (emphasis added).
These excerpts make it clear to us that the term “proceeding” in subsection (J) was very much intended to encompass pretrial motions. Furthermore, this view is reinforced by contemporaneous and informed administrative interpretation. The Administrative Office of the United States Courts has issued guidelines to aid the courts in applying the Speedy Trial Act, which were prepared, in part, by the Committee on the Administration of the Criminal Law of the Judicial Conference of the United States. While these guidelines are not binding, the interpretation they espouse is persuasive. These guidelines state flatly that:
(J) Proceedings Under Advisement
General. This exclusion covers the time required for the court to consider a motion. Although the excludable period under this subparagraph is limited to thirty days, additional time required to consider a motion may in some cases warrant a continuance of the trial date under paragraph (h)(8).
Starting Date. The starting date is the day following the date on which the court has received everything it expects from the parties, examining physicians, etc., before reaching a decision. It is normally the date following the expiration of an exclusion under subparagraph (A), (B), (F), or (G).
Ending Date. The ending date is the earliest of (1) the date the judge’s decision is filed, (2) the date the judge renders his decision orally in open court, or (3) the expiration of the 30-day maximum period.
Guidelines to the Administration of the Speedy Trial Act of 1979, as Amended 42-43 (1981). This interpretation is also reflected in the Administrative Office Speedy Trial Advisory Issuance # 32 (August 1981) at Chart B, page 3 (“Defendant Motion Under Advisement. The exclusion covers the time required for the court to consider a motion .... [T]he excludable period under this subparagraph is limited to thirty days .... ”). Similarly, the .1979 Plan for the Prompt Disposition of Criminal Appeals of the United States District Court for the Southern District of New York noted that “in some instances docket clerks are not aware of when a judge takes a motion under advisement. This date is important as it starts excludable time running for up to 30 days under § 3161(h)(l)(J).” Plan at III — 9. See also Misner, The 1979 Amendments to the Speedy Trial Act: Death of the Planning Process, 32 Hast.L.J. 635, 654-55 (1981).
Moreover, the scanty caselaw on the issue supports these administrative interpretations. It is true that the government cites two circuit court decisions to us for the proposition that the 30-day time limit of (J) is not applicable. However, it does not appear that either case is directly on point. For example, in United States v. Brim, 630 F.2d 1307 (8th Cir. 1980), cert. denied, 452 U.S. 966, 101 S.Ct. 3121, 69 L.Ed.2d 980 (1981), it seems that the pretrial period extended for an inordinate length of time because the parties filed many consecutive motions and that at no time was a single motion under advisement for longer than 30 days. (“From [October 23, 1979], overlapping filings by the defendants and the government kept motions pending continuously until December 19, 1979, when the district court disposed of the motions remaining before it.... ” Id. at 1312.) On the other hand, the Seventh Circuit considered the precise issue in United States v. Raineri, 670 F.2d 702 (7th Cir. 1982). There, motions were fully submitted by August 1, but the magistrate did not decide them until October 28, 88 days later. Apparently agreeing with the interpretation advanced by appellant here, that court held that “[i]t is reasonable to attribute and exclude thirty of the days between August 1 and October 28 to the motions under advisement.” Id. at 708 (emphasis added); cf. United States v. Molt, 631 F.2d 258, 262 (3d Cir. 1980) (per cuijiam).
Based upon all of the above, therefore, we reject the government’s position that the 30-day limitation of subsection (J) is inapplicable. We are aware that this interpretation places a burden on district judges to decide motions rapidly. We believe, however, that it carries out the meaning of the Act. Furthermore, should the 30-day limit place an unduly harsh burden on a trial judge, it is always open to him to find that the interest of justice is best served by granting a continuance under § 3161(h)(8) for the excess period, see H.R. Rep.No.93-1508, supra.
The government argues also that defendants’ failure to respond to the government’s sequestration motion renders the entire period from the time that the motion was filed to the date of trial excludable under subsection (F). The sequestration motion had been filed on March 27, but neither Bufalino nor his co-defendant, Rizzitello, responded to it. On September 30, during a pretrial conference, the judge asked counsel if they objected to sequestration and, after expressing his own reservations about the practice, stated that he would not do it unless the defense counsel joined in the government’s motion. Although at that time neither counsel objected to sequestration, Rizzitello’s attorney refused to join in the motion without further discussion with Bufalino’s counsel. The matter was again brought up by the court on October 19, the date that the trial began. At that time, the following interchange took place:
THE COURT: I will once again state that I’m not crazy about sequestered juries. However, I gather that everybody wants a sequestered jury in this case.
MR. COHEN [attorney for Rizzitello]: Your Honor, excuse me.
I contacted your chambers on that day when we had the conference and indicated we didn’t take any position.
THE COURT: Not taking a position is a kind of indication that you don’t disagree with the motion, which is kind of like saying we’ll have a sequestered jury.
Under the circumstances I will assume that everybody in this case is willing to work much harder than normally, and under the circumstances we are going to work harder.
In view of these facts, we believe that the government’s argument to us on this point has merit. Because Judge Duffy was opposed to sequestration, his decision on the government’s motion hinged on the defendants’ positions towards it. If either one had shared his views of the dangers in sequestration, it is not unlikely that the government’s motion would have been denied. Consequently, Judge Duffy could not have taken this motion under advisement in any meaningful way until the defendants made their positions known. Moreover, administration of the Speedy Trial Act has posed difficulties, as the Southern District’s summary of its experience indicates, see South-era District Plan, supra, III. Over 750 criminal cases were filed in the Southern District in the year ending June 30, 1981, see Administrative Office of the United States Courts, Management Statistics for 1981 at 26 (1981), far too many for it to be reasonable to require the clerks or the judges to guess each party’s position on his adversary’s motions in order to calculate times under the Speedy Trial Act. Cf. Misner, supra at 643 n.65. It seems to us that Bufalino, when faced with a government motion, had a duty to do more than stand by without taking a position and then reap the benefit of inaction by having the indictment dismissed on speedy trial grounds.
In finding that (F) applies to the entire period that followed the filing of the government’s sequestration motion, we do not mean to say that appellant’s failure to respond works as a waiver of his rights. The responsibility for pursuing a prosecution lies entirely with the government, Barker v. Wingo, 407 U.S. 514, 527, 92 S.Ct. 2182, 2190, 33 L.Ed.2d 101 (1972) (“A defendant has no duty to bring himself to trial ....”); New Buffalo Amusement Corp., 600 F.2d at 375-76; United States v. Didier, 542 F.2d 1182, 1189 & n.9 (2d Cir. 1976). Cf. United States v. Salzmann, 548 F.2d 395, 401 (2d Cir. 1976). We must, however, insure the ability of the courts to administer the Act. If defendants do not make their positions known in response to the motions that are made, neither the court nor its clerk’s office will ever know when the “under advisement” period of subsection (J) begins to run. The Act was not, after all, meant to provide defendants with tactics for ensnaring the courts into situations where charges will have to be dismissed on technicalities. Regilio, 669 F.2d at 1173; cf. Furlow v. United States, 644 F.2d 764, 768 (9th Cir.) (per curiam), cert. denied, 454 U.S. 871, 102 S.Ct. 340, 70 L.Ed.2d 175 (1981). In addition, we caution the Government that we will not in the future condone its willingness to stand silent in similar situations. As Barker v. Wingo, 407 U.S. at 527, 92 S.Ct. at 2190, makes clear, the government is charged not only with preserving society’s interest in bringing criminals to justice; it is also charged with protecting society’s interest in swift prosecutions. In the future, a defendant’s failure to respond to a motion within a reasonable time should be brought to the court’s attention.
Because we find that the entire period from March 27 to October 19 is excludable under subsection (F), we do not reach the government’s alternative theories for calculating the exclusion. Taking the approach most favorable to appellant on the question of when motion practice began under subsection (F), Bufalino was tried 59 days after his arraignment, well within the 70-day period allowable under the Speedy Trial Act.
II. Rulings on Evidence
Appellant’s claims with regard to the evidence introduced at trial are without merit. First, he argues that the trial court should not have allowed the government to cross-examine him about his friendships with members of La Cosa Nostra or about his presence in Apalachin on November 14, 1957. While we agree that this line of interrogation poses the danger of allowing the jury to find Bufalino guilty by virtue of his association with known gangsters and his presence at a famous gangland convention, we feel that the cross-examination was proper.
The theory that the government presented to the jury was that Bufalino could prevail upon James Fratianno to have Napoli killed because both were members of La Cosa Nostra, an organization whose members performed murders for one another as a matter of professional courtesy. When, on direct examination, Bufalino claimed that his acquaintance with Fratianno was based on “chance meetings,” it became proper for the government to impeach him by introducing evidence of appellant’s longstanding relationship with La Cosa Nostra, see United States v. Havens, 446 U.S. 620, 626, 100 S.Ct. 1912, 1916, 64 L.Ed.2d 559 (1980) (“[Wjhen defendants testify, they must testify truthfully or suffer the consequences.”); United States v. Miller, 478 F.2d 1315, 1318 (2d Cir.), cert. denied, 414 U.S. 851, 94 S.Ct. 144, 38 L.Ed.2d 100 (1973). Furthermore, since without this evidence it was unlikely that the jury would believe that Fratianno would agree to commit the crime, we think the trial judge properly exercised his discretion to allow the cross-examination of defendant to proceed, see United States v. Sanzo, 673 F.2d 64, 70 (2d Cir. 1982).
Bufalino’s other evidentiary objection is that the tape recording of the extortion threat should not have been admitted because it was highly prejudicial. The general rule is that “other crimes” evidence “is not admissible to prove the character of a person in order to show that he acted in conformity therewith.” Fed.R.Evid. 404(b). Such evidence of “other crimes” is, however, permissible for purposes of impeachment, United States v. Benedetto, 571 F.2d 1246, 1250 (2d Cir. 1978), and to show motive or intent, Fed.R.Evid. 404(b), United States v. Bradwell, 388 F.2d 619, 622 (2d Cir.), cert. denied, 393 U.S. 867, 89 S.Ct. 152, 21 L.Ed.2d 135 (1968). In this case, the tape recorded threat served the double purpose of negating Bufalino’s testimony that he never told anyone to kill Napoli and establishing his motive for seeking Napoli’s death. Moreover, Judge Duffy gave the jury two curative instructions. Right after the tape was played, the jury was told to disregard the obscenities it contained. More importantly, in his charge, the judge said:
[Y]ou heard a tape ... of what the defendant Bufalino said on one occasion to Jack Napoli. You know that Bufalino has already been convicted of making that threat. You are not called upon to consider that tape that you heard as anything except something which may assist you in determining the question of intent in this case, only in connection with that.
We think that this charge was sufficient to alert the jury to the danger of improperly using the tape as evidence that Bufalino endeavored to obstruct justice. Admission of the tape therefore was not reversible error.
III. The Judge’s Charge
Finally, Bufalino objects to the court’s failure to give the accomplice instruction that Bufalino requested. Fratianno and Fox, the two principal witnesses for the prosecution, both received — or stood to receive — substantial benefits from the government. Fratianno received a favorable plea bargain on another charge, immunity from prosecution on the criminal activities that he testified about and approximately $200,000 as part of the Justice Department’s Witness Protection Program. Fox expected to receive early parole and an opportunity to participate in the Protection Program. Although this information was brought out at the trial, the judge’s charge on how their testimony should be evaluated was somewhat equivocal. Specifically, he instructed the jury as follows:
If you find .. . that an informer believes that he has a real interest in the outcome of this case, then you can consider that, also, in determining his credibility.
For example, if a person here, informer believes that his term of imprisonment may be shortened, not because of his testimony but because of the outcome of the case, all right, then he has a real interest in the outcome of the case. He might be said to have an interest anyway in the case from the very fact that he is testifying.
I am not saying and I don’t want you to understand that the law imposes this, I am not saying that because a person has an interest that means that they would testify falsely, I am just saying it is something for you to consider. It is something that you determine what weight it will have.
This instruction was arguably inadequate because it asked the jury to devalue Fox’s and Fratianno’s testimony only if the jury found that their receipt of benefits was contingent on the conviction of Bufalino. We have stated in the past that “trial judges should call the jury’s attention to their duty to scrutinize the testimony of accomplices and informers.” United States v. Swiderski, 539 F.2d 854, 860 (2d Cir. 1976). This admonition applies to all factors affecting credibility that have been brought out at trial, not merely an interest in the outcome of the case. We do not, however, find that this possible inadequacy in the charge requires a reversal of Bufalino’s conviction. The jury received ample evidence of the interest of these witnesses, and could be counted on to use its common sense in evaluating the truth of their testimony. Besides, the defense summation— which referred to Fratianno as a “chronic pathological liar” to whom the government paid $200,000 “that might buy a lie” — more than compensated for the judge’s omission. See United States v. Velez, 652 F.2d 258, 261 n.5 (2d Cir. 1981).
For the foregoing reasons, the judgment of conviction is affirmed.
. Michael Rizzitello was indicted with Bufalino and tried with him. The original indictment, charging both with conspiracy to obstruct justice, was superseded by the April 2 indictment which charged both appellant and Rizzitello with conspiring to violate Napoli’s civil rights and Bufalino alone with endeavoring to obstruct justice. Rizzitello was acquitted.
. In the portion of the tape most damaging to Bufalino, he stated:
[A]nd if you’re going to do it, don’t do the right thing, I’m going to kill you, [epithet omitted], and I’m going to do it myself, and I’m going to go to jail just for you....
. Bufalino was arraigned through counsél on January 9, 1981, and did not personally appear until May 8. Although an argument could be made that his speedy trial rights were tolled prior to his personal appearance, at a hearing before Judge Brieant on January 8, all the parties agreed that the speedy trial “clock” would begin to run as of the date Bufalino was arraigned through his attorney.
. Section 3162(a)(2) provides:
If a defendant is not brought to trial within the time limit required by section 3161(c) as extended by section 3161(h), the information or indictment shall be dismissed on motion of the defendant. The defendant shall have the burden of proof of supporting such motion but the Government shall have the burden of going forward with the evidence in connection with any exclusion of time under subparagraph 3161(h)(3). In determining whether to dismiss the case with or without prejudice, the court shall consider, among others, each of the following factors: the seriousness of the offense; the facts and circumstances of the case which led to the dismissal; and the impact of a reprosecution on the administration of this chapter and on the administration of justice. Failure of the defendant to move for dismissal prior to trial or entry of a plea of guilty or nolo contendere shall constitute a waiver of the right to dismissal under this section.
Because we affirm this conviction, we do not consider whether the factors present in this case would have mandated a dismissal with prejudice.
. Section 3161(h) provides in relevant part that:
(h) The following periods of delay shall be excluded in computing the time within which an information or an indictment must be filed, or in computing the time within which the trial of any such offense must commence:
(I) Any period of delay resulting from other proceedings concerning the defendant, including but not limited to—
(F) delay resulting from any pretrial motion, from the filing of the motion, through the conclusion of the hearing on, or other prompt disposition of, such motion;
(J) delay reasonably attributable to any period, not to exceed thirty days, during which any proceeding concerning the defendant is actually under advisement by the court.
(8)(
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_genstand
|
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 civil law issues involving government actors. The issue is: "Did the agency articulate the appropriate general standard?" This question includes whether the agency interpreted the statute "correctly". The courts often refer here to the rational basis test, plain meaning, reasonable construction of the statute, congressional intent, etc. This issue also includes question of which law applies or whether amended law vs law before amendment applies. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
Vincenzo ANSELMO, Appellant, v. H. L. HARDIN, District Director of Immigration and Naturalization for the 21st Immigration District.
No. 12259.
United States Court of Appeals Third Circuit.
Argued Nov. 8, 1957.
Decided Feb. 25, 1958.
Filindo B. Masino, Philadelphia, Pa. (Frank M. Lario, Camden, N. J., on the brief), for appellant.
Charles H. Nugent, Asst. U. S. Atty., Newark, N. J. (Chester A. Weidenburner, U. S. Atty., Newark, N. J., on the brief), for appellee.
Before MARIS, KALODNER and STALEY, Circuit Judges.
KALODNER, Circuit Judge.
Does the doctrine of res judicata apply with respect to a judgment of a United States district court granting a writ of habeas corpus in a deportation proceeding which was premised on the judicial determination that the rights of the alien were governed by the Immigration Act of 1917 and that he was not de-portable under its provisions?
That issue is presented by this appeal by Vincenzo Anselmo from the judgment of the United States District Court for the District of New Jersey dismissing his action for a declaratory judgment under the Federal Declaratory Judgment Act and for review under the Administrative Procedure Act, with respect to a ruling of the Immigration and Naturalization Service that he is deportable and as such is to be deported to his native country, Italy.
Necessary to the consideration of this appeal are the following facts:
On November 15, 1938, the Secretary of Labor issued a Warrant for Anselmo’s deportation to Italy pursuant to his determination that Anselmo had entered the United States at New York “about 1930” and “that at the time of his entry he was not in possession of an unexpired immigration visa” and was accordingly deportable under the Immigration Act of 1924.
Anselmo, in his Declaration of Intention to be naturalized, filed on November 16, 1934, had stated that he had arrived at New York on June 28, 1924, and on examination by the Immigration Service on May 14, 1936 and at subsequent hearings, conducted by the Service, he made the same contention.
The time of Anselmo’s entry into the United States was the critical and dis-positive factor in the 1938 deportation proceedings inasmuch as July 1, 1924 was the effective date of the Immigration Act of 1924 and had Anselmo entered prior to that date he would have attained a non-deportable status under the provisions of Section 19 of the Immigration Act of 1917, which established a five-year statute of limitations (the deportation proceedings were not commenced until January 17, 1938, when the Warrant For Arrest of Alien was issued).
Subsequent to the issuance of the deportation warrant Anselmo, on March 2, 1939, filed a petition for a writ of habeas corpus in the United States District Court for the District of New Jersey. The late Judge Avis of that Court, following hearing, in a Memorandum Opinion dated May 23, 1940, made these findings:
“ ‘There is no direct testimony which sustains the position of the respondent [Secretary of Labor]. The indirect evidence does not substantially support the finding. It follows that the order of deportation is arbitrary and capricious, and cannot be sustained under the evidence presently before the court. However, a reading of the record indicates that a proper investigation would develop facts upon which to base a determination one way or the other. The writ will be held for a reasonable time and the matter referred to the Department of Labor for further investigation and determination.’ ” [See 150 F.Supp. 294.]
Apparently no further investigation was made by the immigration authorities because, as Government counsel asserts in his brief here “Due to the conditions in Italy as a result of the war, further investigation at that time was impossible.”
On March 24, 1944, Chief Judge For-man of the District Court for the District of New Jersey (Judge Avis having died), upon application of Anselmo’s counsel, after hearing, entered an order granting the writ of habeas corpus, and directed that Anselmo be discharged from custody. The Government did not appear in opposition to the writ, and, it may be noted parenthetically that the record discloses that “There appears on this order a pencil notation that the Assistant United States Attorney, Rossbaeh, had no objection to the entry of the order.”
No appeal was taken by the Government from the order of March 24, 1944. In October, 1947, Chief Judge Forman denied the Government’s request to reopen the habeas corpus proceeding. Thereafter, on December 2, 1947, tl^e Acting Commissioner of Immigration filed a Motion with the Board of Immigration Appeals “* * * that the outstanding order of deportation be withdrawn and proceedings cancelled without prejudice.” On January 16, 1948 in a formal “Opinion of Immigration Board”, the Acting Commissioner’s Motion was denied. In doing so the Board, in its Opinion, stated:
“It is our opinion that the action of the District Court in granting the writ of habeas corpus and discharging respondent from custody effectively terminated the deportation proceeding. Hence, there is nothing before us to consider.”
A new deportation proceeding was begun on March 11, 1948 by issuance of a Warrant of Arrest based on the identical charge of lack of an unexpired visa set forth in the original Warrant of Arrest of January 17, 1938. Hearings were held in December, 1950, December, 1951, February and March, 1952, and in February, 1953. At the last mentioned hearing the Government added the additional charge that Anselmo had entered the United States without inspection.
On July, 6, 1953, the Special Inquiry Officer found Anselmo deportable on the charges contained in the Warrant of Arrest. On October 28, 1954, the Board of Immigration Appeals denied Anselmo’s appeal and thereafter on November 3, 1954, an order of deportation was entered. Anselmo then brought the action below for declaratory judgment and review.
In his petition for declaratory judgment and review Anselmo recited the prior action of the District Court in granting the writ of habeas corpus earlier here detailed and asserted (Par. 13) that accordingly he had “* * * acquired the status of immunity from de-portion * * * which status is preserved and protected under the provisions of the Savings Clause contained in Section 405(a) of the Immigration and Nationality Act of 1952 [8 U.S.C.A. § 1101 note].” He further asserted that the second deportion warrant of 1954 was “arbitrary and capricious” and not sustained by the evidence.
The District Court in granting the Government’s motion for summary judgment dismissing Anselmo’s petition held (1) “ * * * the principle of res judi-cata is not applicable in this particular case” and (2) “ * * * there is substantial evidence to warrant the findings of the administrative body * * *.”
It must immediately be noted that we are here focusing our attention on the res judicata phase of the District Court’s disposition. Upon review of the record we cannot say that the administrative action was. “unsupported by substantial evidence” and “unwarranted by the facts.”
Coming now to the issue as to whether the District Court erred in holding that “the principle of res judicata is not applicable in this particular case.”
As already noted, the first Warrant For Arrest of Alien, issued January 17, 1938, was premised on the charge that in violation of the Immigration Act of 1924, “ * * * at the time of his entry he [Anselmo] was not in possession of an unexpired immigration visa” and the first deportation warrant, issued November 15, 1938, made the same charge in identical terms.
Because of their pertinence to the issue of res judicata these additional facts must be stated:
The second Warrant For Arrest of Alien, issued March 11, 1948, was premised on the charge that in violation of the Act of 1924 “* * * at the time of entry, he [Anselmo] was an immigrant not in possession of a valid immigration visa and not exempted from the presentation thereof * * and the second deportation warrant, issued November 3, 1954, made the same charge in identical terms and added to it that in violation of Sec. 241(a) (2) of the Immigration and Nationality Act of 1952, 8 U.S.C.A. § 1251(a) (2) “* * * he entered the United States without inspection.”
With respect to the issue of res judi-cata these well-settled principles are applicable :
A final judgment by a court of competent jurisdiction is res judicata as to the parties not only as to all matters litigated and determined by such judgment but also as to all relevant issues which could have been presented, but were not.
Specifically, “a question of fact or of law distinctly put in issue and directly determined * * * cannot after-wards be disputed between the same parties”, Frank v. Mangum, 1915, 237 U.S. 309, 334, 35 S.Ct. 582, 590, 59 L.Ed. 969, and where “ * * * the question of priority in time and right * * * was directly presented by the pleadings and evidence and distinctly dealt with and resolved in the [prior] opinion” the decree entered pursuant to such opinion is res judicata as to the litigated issue. State of Wyoming v. State of Colorado, 1932, 286 U.S. 494, 507, 52 S.Ct. 621, 626, 76 L.Ed. 1245. (Emphasis supplied.)
The circumstance that the final judgment on the issue raised was premised on the failure of the losing party to support its position by sufficient evidence does not impair the binding effect of the judgment rendered. Heiser v. Woodruff, 1946, 327 U.S. 726, 735, 66 S.Ct. 853, 90 L.Ed. 970.
A judgment in habeas corpus proceedings discharging the petitioner for the writ is res judicata “ * * * of the issues of law and fact necessarily involved in that result.” Collins v. Loisel, 1923, 262 U.S. 426, 430, 43 S.Ct. 618, 619, 67 L.Ed. 1062.
Applying the principles stated we are of the opinion that Judge Madden erred in ruling in the instant case that the prior 1944 judgment granting Anselmo a writ of habeas corpus in the 1938 deportation proceeding did not operate as res judicata with respect to the 1954 deportation action.
The single issue in the habeas corpus proceeding was whether Anselmo’s status as to deportation was determinable under the Immigration Act of 1917 or the Immigration Act of 1924. Whether the 1917 Act or the 1924 Act was applicable hinged solely on the factual question as to the date of Anselmo’s entry into the United States. If he had entered prior to July 1, 1924, he was not deportable for having entered without an immigration visa because under Section 19 of the 1917 Act there was a five-year statute of limitations with respect to entry without a visa. If he had entered on July 1, 1924, or thereafter, he was deportable under Section 14 of the 1924 Act, which had repealed all of the limitation provisions of Section 19 of the 1917 Act.
The foregoing was placed in sharp focus by Judge Avis in his Memorandum in the habeas corpus proceeding and by Judge Madden in his opinion in the instant case.
Judge Avis, after stating “The determination of the issue [presented by the application for the writ of habeas corpus] depends entirely upon the date when the relator actually entered the United States” said:
“He claims that he arrived * * * on June 28, 1924. Respondent claims that relator did not enter the United States until some time in the year 1930. If he entered on June 28, 1924 he is not deportable because of the fact that he resided in the United States for a period of five years after his entry and his rights are governed by the Act of 1917. If he arrived in the United States after July 1,1924 his rights are controlled by the 1924 Act and he is liable to deportation at any time.” (Emphasis supplied.)
Judge Madden in his Opinion, D.C. D.N.J.1957, 150 F.Supp. 293, at page 294, stated:
“The prime question throughout is the date of the petitioner’s entry into this country. Both parties are in agreement that if he entered, even illegally, before July 1, 1924, he is not deportable, for then he would have acquired a non-deportable status under the Immigration Act of 1917; but if he entered after said date, he would be subject to the Immigration Act of 1924 and deporta-ble at any time.” (Emphasis supplied.)
It is clear that the judgment in the habeas corpus proceeding was a determination that Anselmo had entered the United State prior to July 1, 1924, and that accordingly his status was governed by the provisions of the Immigration Act of 1917 and that being so he could not be deported under the five-year limitation provision of Section 155 of the 1917 Act.
The 1954 deportation proceeding was premised on the Government’s determination that Anselmo had entered the United States after July 1, 1924 and tfiat accordingly his status was governed by the provisions of the Immigration and' Nationality Act of 1952, and that being so he was deportable under Section 241(a) (2) of that Act.
To avoid the impact of the res judicata doctrine, the Government urges here (1) the,habeas corpus judgment was “not a decision on the merits” as to Anselmo’s depprtability; (2) “even if [it] was a decision on the merits the doctrine of res. judicata or estoppel by judgment does not apply here so as to bar new administrative proceedings to determine petitioner’s [Anselmo’s] deportability, based on new process and new evidence”; (3) Anselmo “does not have any status of immunity from deportation” preserved to him under the 1952 Act, and (4) “even assuming, arguendo, that Judge Forman’s 1944 Order precluded re-lodging- the ‘entry without a visa’ charge * f * that Order has no effect on the charge * * * that at the time of his entry on a date subsequent to July 1, 1924, he entered without inspection, in violation of the Immigration Act of 1917” making him deportable under Section 241(a) (2) of the 1952 Act.
The contention that the habeas corpus judgment was “not a decision on the merits” does not require extended discussion. The “merits” involved in that judgment were inextricably intertwined —whether he had arrived prior to July 1, 1924 and was thus subject to the 1917 Act or had- arrived subsequent to that date and was thus subject to the 1924 Act. Judge Avis flatly ruled, as earlier quoted, “There is no direct testimony which sustains the position of the respondent [Government], The indirect evidence does not substantially- support the finding [that Anselmo had entered the United States subsequent to July 1, 1924].” Further, Judge Avis allowed the Government “a reasonable time” to produce evidence in support of its position and it was only after almost four years in which the Government failed to produce such evidence or to offer any evidence at all, that Judge Forman, following notice, entered judgment granting the habeas corpus writ. In this connection it will be recalled that, as earlier pointed out, the Government did not appear in opposition to the writ in 1944 and it was noted on the record “that the Assistant United States Attorney, Ross-bach,- had no objection -to the entry of the order.”
Implicit, of course, in the grant of the habeas corpus judgment was the judicial determination that Anselmo had entered the United States prior, to July 1, 1924, and that he was subject to the provisions of the 1917 Act and was not deportable under them;
The Government’s second contention that “even if [it] was a decision on the merits, the doctrine of res judicata or estoppel by judgment does not apply here to bar new administrative proceedings * * * based on new process and new evidence” falls of its own weight. Clearly dispositive are the well-settled principles, earlier cited, that “a question of fact or of law distinctly put in issue and directly determined * * * cannot afterwards be disputed between the same parties”, and where “the question of priority in time and right * * * was directly presented by the pleadings and evidence and distinctly dealt with and 'resolved in the [prior] opinion” that the decree entered pursuant to, such opinion is res judicata as to the litigated issues. The fact that “new administrative proceedings * * * based on new process and new evidence” were invoked in the 1954 deportation phase cannot avoid the res judicata impact of the habeas corpus judgment. As was pointed out in Heiser v. Woodruff, supra, 327 U.S. at page 735, 66 S.Ct. at page 857, the binding effect of the earlier judgment was “ * * * ' not any the less so * * * because the moving parties failed to support their allegations by evidence.”
It is unnecessary to here resolve Anselmo’s contention that he has an immunity from deportation preserved to him under the 1952 Act and the Government’s third point that he does not because of our view of the applicability of the doctrine of res judicata.
As to the Government’s remaining contention that “even assuming, argu-endo, that Judge Forman’s Order precluded re-lodging the ‘entry without a visa’ charge * * * that Order has no effect on the charge * * * that at the time of his entry on a date subsequent to July 1, 1924, he [Anselmo] entered without inspection in violation of the Immigration Act of 1917” so as to make him deportable under Section 241(a) (2) of the 1952 Act:
The stated premise of this contention is that “Prior to the enactment of the 1952 Act, the charge of entry without inspection was contained in Section 19 of the Act of February 5, 1917 * * * and had to be brought within three years after entry. But Section 241(a) (2) of the Immigration and Nationality Act of 1952 provides that the charge of entry without inspection may be brought without regard to time limitation. Whereas Anselmo was not amenable to an entry without inspection charge at the time of his first deportation hearing, he became subject to that charge under this provision in the 1952 Act during the second deportation proceeding.” (Emphasis supplied.)
The Government’s stated premise is, colloquially speaking, “shot through with holes”, as a matter of law and affords no foundation whatsoever for the contention which it is designed to support.
The Government has consistently maintained throughout the first and second deportation proceedings, and in the habeas corpus action, that Anselmo entered the United States after July 1, 1924. In the first deportation proceeding, both in the Warrant of Arrest and the Warrant of Deportation, it was charged that Anselmo entered “about 1930” and that he was subject to deportation under Section 19 of the 1917 Act because “at the time of his entry he was not in possession of an unexpired visa” as required by the 1924 Act.
At the time of the issuance of the Warrant of Arrest on January 17, 1938, which was the initial step in the first deportation proceeding, Anselmo, had he entered the United States after July 1, 1924, could have been deported for “entry without inspection” and the Government’s stated premise that “Anselmo was not amenable to an entry without inspection charge at the time of his first deportation hearing [in February 1938]” is a startling mis-statement of law. The Supreme Court of the United States had twice in 1931, some seven years prior to the institution of the first deportation proceeding, declared that with respect to all aliens entering the United States after July 1, 1924 (as charged here by the Government) Section 14 of the 1924 Act had repealed all limitations contained in Section 19 of the 1917 Act.
The Government’s injection of the “entry without inspection” charge into the second deportation proceeding in February, 1953 — almost five years after they were commenced on March 11, 1948 —constitutes an attempt at interposition of the 1952 Act to avoid the effect of the habeas corpus judgment. Its contention that Section 241(d) of the 1952 Act “expressly excepts the charge of deport-ability for entry without inspection from the application of the ‘savings clauses’ in Section 405(a)” is tantamount to an assertion in the instant case that the 1952 Act has made inapplicable to deportation proceedings the doctrine of res judicata. We cannot subscribe to such a contention. If we did we would be compelled to consider the constitutionality of the provisions of the 1952 Act relied on by the Government. The cases cited by the Government are inapposite. So are Lehmann v. United States ex rel. Carson, 1957, 353 U.S. 685, 77 S.Ct. 1022, 1 L.Ed.2d 1122, and Mulcahey v. Cata-lanotte, 1957, 353 U.S. 692, 77 S.Ct. 1025, 1. L.Ed.2d 1127. In the latter two cases there had not been a judgment prior to the deportation proceedings determining the non-deportable status of the alien sought to be deported as there was in the instant case.
In plain terms the Government is seeking here to scrap the doctrine of res judicata as far as its applicability to habeas corpus is concerned. It is attempting to deprive Anselmo of the rule which we stated in United States v. De Angelo, 3 Cir., 1943, 138 F.2d 466, at page 468, namely, a “ ‘rule of evidence’ * * * ‘which accords to the accused the right to claim finalty with respect to a fact or group of facts previously determined in his favor upon a previous trial.’ ” (Emphasis supplied.) The “fact or group of facts” here determined by the habeas corpus judgment was Anselmo’s entry into the United States prior to July 1, 1924, and the applicability of the provisions of the 1917 Act under which he was not deportable. The cases are legion that, as earlier stated, a judgment in habeas corpus proceedings discharging the petitioner for the writ is res judicata. To Collins v. Loisel, supra, may be added the early case of United States v. Chung Shee, 9 Cir., 1896, 76 F. 951, 956, a deportation proceeding; Harris v. Biszkowicz, 8 Cir., 1939, 100 F.2d 854, also a deportation case; and the recent case of In re Bailleaux, 1956, 47 Cal.2d 258, 302 P.2d 801, 802, 803. See also Cruz-Sanchez v. Robinson, D.C. S.D.Cal.1955, 136 F.Supp. 52, affirmed 9 Cir., 1957, 249 F.2d 771.
Pertinent to the instant case is the observation made in Heikkila v. Barber, 1953, 345 U.S. 229, at page 237, 73 S.Ct. 603, at page 607, 97 L.Ed. 972:
“Congress may well have thought that habeas corpus, despite its apparent inconvenience to the alien, should be the exclusive remedy in these cases [deportation] in order to minimize opportunities for repetitious litigation and consequent delays * * (Emphasis supplied.)
The doctrine of res judicata comprehends the particular matter decided and here, the habeas corpus judgment having determined that Anselmo entered prior to July 1, 1924 and that his status was governed by the 1917 Act, the doctrine should have been applied by the District Court and its error in failing to do so requires reversal of its judgment of dismissal of Anselmo’s action for declaratory judgment.
For the reasons stated the judgment of the District Court will be reversed and the cause remanded with directions to proceed in accordance with this opinion.
. 28 U.S.C. § 2201 et seq.
. 5 U.S.C.A. § 1001 et seq.
. 8 U.S.C. § 201 et seq. (1940 ed.) ; Immigration Act of 1924, May 26, 1924, P.L., c. 190, 43 Stat. 153 et seq.
. 8 U.S.C. § 155 (1926 ed.); Sec. 19 of the Immigration Act of February 5, 1917, 39 Stat. 889.
. The District Court’s opinion is reported at D.C.D.N.J.1957, 150 F.Supp. 293.
. The Administrative Procedure Act of 1946, c. 324, Sec. 10, 60 Stat. 243, 5 U.S. C.A. § 1009(e).
. Mr. Justice Frankfurter, in Angel v. Bul-lington, 1947, 330 U.S. 183, 192-193, 67 S.Ct. 657, 662, 91 L.Ed. 832, stated the rule as follows:
“The doctrine of res judicata reflects the refusal of law to tolerate needless litigation. Litigation is needless if, by fair process, a controversy has once gone through the courts to conclusion. * * * And it has gone through, if issues that were or could have been dealt with in an earlier litigation are raised anew between the same parties.” (Emphasis supplied.)
To the same effect see Commissioner v. Sunnen, 1948, 333 U.S. 591, 597, 68 S. Ct. 715, 92 L.Ed. 898; Jackson v. Irving Trust Co., 1941, 311 U.S. 494, 503, 61 S.Ct. 326, 85 L.Ed. 297; United States v. Oppenheimer, 1916, 242 U.S. 85, 88, 37 S.Ct. 68, 61 L.Ed. 161; United States v. De Angelo, 3 Cir., 1943, 138 F.2d 466, 468.
. See Note 4, supra.
. 8 U.S.C. Sec. 214 (1940 od.)
. Philippides v. Day, 1931, 283 U.S. 48, 51 S.Ct. 358, 75 L.Ed. 833; United States v. Vanbiervliet, 1931, 284 U.S. 590, 52 S.Ct. 132, 76 L.Ed. 509; see also United States v. Prince Line, 2 Cir., 1951, 189 F.2d 386, 389; United States ex rel. Vounas v. Hughes, 3 Cir., 1940, 116 F.2d 171, 174; United States ex rel. Fink v. Reimer, 2 Cir., 1938, 96 F.2d 217.
. 8 U.S.C.A. § 1101 et se?,
. See Note 10, supra.
. Although extraneous to the issues presented in this appeal we cannot refrain from commenting that the Government might well have unsheathed the sword of its might in a worthier cause than that presented here. We are prompted to do so by the observation made by Judge Madden in his opinion at page 298 of 150 E.Supp.:
“Here is a man now approaching 50 years of age who has lived in this country for approximately 25 years without a criminal record, sustaining himself in an industrious way, and in most respects conducting himself in the law-abiding manner of a good resident if not a good citizen. The executive branch of the government desires to deport him while at the same time. the same branch of the government, and properly so, is bringing in the persecuted peoples of Europe by the thousands. It makes it difficult for some to understand.”
Question: Did the agency articulate the appropriate general standard? This question includes whether the agency interpreted the statute "correctly". The courts often refer here to the rational basis test, plain meaning, reasonable construction of the statute, congressional intent, etc. This issue also includes question of which law applies or whether amended law vs law before amendment applies.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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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.
Chester L. OUGHTON, Appellant, v. UNITED STATES of America, Appellee.
Misc. No. 382.
United States Court of Appeals Ninth Circuit.
Sept. 7, 1954.
Chester L. Oughton, in propria persona.
William T. Plummer, U. S. Atty., Anchorage, Alaska, for appellee.
Before DENMAN, Chief Judge, and BONE and ORR, Circuit Judges.
PER CURIAM.
Oughton, having appealed to this court from the district court’s order in a 28 U.S.C. § 2255 proceeding denying his motion to set aside his life sentence, seeks our order to proceed forma pauperis with his appeal.
It appears from the records of the district court of which we take judicial notice that Oughton plead guilty on the same day to the offense for which he was given a life sentence and two other sentences, upon one of which he received a five-year sentence and upon another of which he received a year and a day. The sentences running concurrently were imposed on December 17, 1952.
From the above it is apparent that if he were successful in his present § 2255 proceeding attacking his life sentence, he would not be released from custody. Nor does his § 2255 motion allege that he is “claiming the right to be released” from custody as required by the following provision of § 2255:
Ҥ 2255. Federal custody; remedies on motion attacking sentence
“A prisoner in custody under sentence of a court established by Act of Congress claiming the right to he released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
“A motion for such relief may be made at any time.” (Emphasis supplied.)
Obviously, the motion must be made by a prisoner “claiming the right to be released”. As stated by the Supreme Court the “sole purpose” in enacting this section “was to minimize the difficulties encountered in habeas corpus hearings by affording the same rights in another and more convenient forum.” United States v. Hayman, 342 U.S. 205, 219, 72 S.Ct. 263, 272, 96 L.Ed. 232. In habeas corpus the applicant has no right to have adjudicated the validity of a sentence where, if adjudicated in his favor, he would still be confined in the same penitentiary under another existing sentence.
Since the § 2255 motion on its face showed no ground existed to invoke it, the district court was not required to bring Oughton before it in the proceeding in which it held the motion should be denied.
The motion to prosecute the appeal forma pauperis is ordered denied.
. Lopez v. Swope, 9 Cir., 205 F.2d 8, 9.
Question: What is the total number of respondents in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number.
Answer:
|
sc_threejudgefdc
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the case was heard by a three-judge federal district court. Beginning in the early 1900s, Congress required three-judge district courts to hear certain kinds of cases. More modern-day legislation has reduced the kinds of lawsuits that must be heard by such a court. As a result, the frequency is less for the Burger Court than for the Warren Court, and all but nonexistent for the Rehnquist and Roberts Courts.
CAREY, STATE’S ATTORNEY OF COOK COUNTY v. BROWN et al.
No. 79-703.
Argued April 15, 1980
Decided June 20, 1980
Brennan, J., delivered the opinion of the Court, in which Stewart, White, Marshall, Powell, and Stevens, JJ., joined. Stewart, J., filed a concurring opinion, post, p. 471. Rehnquist, J., filed a dissenting opinion, in which Burger, C. J., and Blackmun, J., joined, post, p. 472.
Ellen G. Robinson argued the cause pro hac vice for appellant. With her on the briefs were Bernard Carey, pro se, and Paul P. Biebel, Jr.
Edward Burke Arnolds argued the cause for appellees. With him on the brief was Michael P. Seng
Briefs of amici curiae urging reversal were filed by William W. Becker for the New England Legal Foundation; and by Ronald A. Zumbrun, Robert K. Best, and Robin L. Rivett for the Pacific Legal Foundation et al.
Howard Eglit and David Goldberger filed a brief for the Roger Baldwin Foundation of ACLU, Inc., as amicus curiae urging affirmance.
Mr. Justice Brennan
delivered the opinion of the Court.
At issue in this case is the constitutionality under the First and Fourteenth Amendments of a state statute that generally bars picketing of residences or dwellings, but exempts from its prohibition “the peaceful picketing of a place of employment involved in a labor dispute.”
I
On September 6, 1977, several of the appellees, all of whom are members of a civil rights organization entitled the Committee Against Racism, participated in a peaceful demonstration on the public sidewalk in front of the home of Michael Bilandic, then Mayor of Chicago, protesting his alleged failure to support the busing of schoolchildren to achieve racial integration. They were arrested and charged with unlawful residential picketing in violation of Ill. Rev. Stat., ch. 38, § 21.1-2 (1977), which provides:
“It is unlawful to picket before or about the residence or dwelling of any person, except when the residence or dwelling is used as a place of business. However, this Article does not apply to a person peacefully picketing his own residence or dwelling and does not prohibit the peaceful picketing of a place of employment involved in a labor dispute or the place of holding a meeting or assembly on premises commonly used to discuss subjects of general public interest.”
Appellees pleaded guilty to the charge and were sentenced to periods of supervision ranging from six months to a year.
In April 1978, appellees commenced this lawsuit in the United States District Court for the Northern District of Illinois, seeking a declaratory judgment that the Illinois residential picketing statute is unconstitutional on its face and as applied, and an injunction prohibiting defendants — various state, county, and city officials — -from enforcing the statute. Appellees did not attempt to attack collaterally their earlier state-court convictions, but requested only prospective relief. Alleging that they wished to renew their picketing in residential neighborhoods but were inhibited from doing so by the threat of criminal prosecution under the residential picketing statute, appellees challenged the Act under the First and Fourteenth Amendments as an overbroad, vague, and, in light of the exception for labor picketing, impermissible content-based restriction on protected expression. The District Court, ruling on cross-motions for summary judgment, denied all relief. Brown v. Scott, 462 F. Supp. 518 (1978).
The Court of Appeals for the Seventh Circuit reversed. Brown v. Scott, 602 F. 2d 791 (1979). Discerning “no principled basis” for distinguishing the Illinois statute from a similar picketing prohibition invalidated in Police Department of Chicago v. Mosley, 408 U. S. 92 (1972), the court concluded that the Act’s differential treatment of labor and nonlabor picketing could not be justified either by the important state interest in protecting the peace and privacy of the home or by the special character of a residence that is also used as a “place of employment.” Accordingly, the court held that the statute, both on its face and as applied to appellees, violated the Equal Protection Clause of the Fourteenth Amendment. We noted probable jurisdiction. 444 U. S. 1011 (1980). We affirm.
II
As the Court of Appeals observed, this is not the first instance in which this Court has had occasion to consider the constitutionality of an enactment selectively proscribing peaceful picketing on the basis of the placard’s message. Police Department of Chicago v. Mosley, supra, arose out of a challenge to a Chicago ordinance that prohibited picketing in front of any school other than one “involved in a labor dispute.” We held that the ordinance violated the Equal Protection Clause because it impermissibly distinguished between labor picketing and all other peaceful picketing without any showing that the latter was “clearly more disruptive” than the former. 408 U. S., at 100. Like the Court of Appeals, we find the Illinois residential picketing statute at issue in the present case constitutionally indistinguishable from the ordinance invalidated in Mosley.
There can be no doubt that in prohibiting peaceful picketing on the public streets and sidewalks in residential neighborhoods, the Illinois statute regulates expressive conduct that falls within the First Amendment’s preserve. See, e. g., Thornhill v. Alabama, 310 U. S. 88 (1940); Gregory v. Chicago, 394 U. S. 111, 112 (1969); Shuttlesworth v. Birmingham, 394 U. S. 147, 152 (1969). “Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.” Hague v. CIO, 307 U. S. 496, 515 (1939) (opinion of Roberts, J.). “‘[SJtreets, sidewalks, parks, and other similar public places are so historically associated with the exercise of First Amendment rights that access to them for the purpose of exercising such rights cannot constitutionally be denied broadly and absolutely.’” Hudgens v. NLRB, 424 U. S. 507, 515 (1976) (quoting Food Employees v. Logan Valley Plaza, 391 U. S. 308, 315 (1968)).
Nor can it be seriously disputed that in exempting from its general prohibition only the “peaceful picketing of a place of employment involved in a labor dispute,” the Illinois statute discriminates between lawful and unlawful conduct based upon the content of the demonstrator’s communication. On its face, the Act accords preferential treatment to the expression of views on one particular subject; information about labor disputes may be freely disseminated, but discussion of all other issues is restricted. The permissibility of residential picketing under the Illinois statute is thus dependent solely on the nature of the message being conveyed.
In these critical respects, then, the Illinois statute is identical to the ordinance in Mosley, and it suffers from the same constitutional infirmities. When government regulation discriminates among speech-related activities in a public forum, the Equal Protection Clause mandates that the legislation be finely tailored to serve substantial state interests, and the justifications offered for any distinctions it draws must be carefully scrutinized. Police Department of Chicago v. Mosley, 408 U. S., at 98-99, 101; see United States v. O’Brien, 391 U. S. 367, 376-377 (1968); Williams v. Rhodes, 393 U. S. 23, 30-31 (1968); Dunn v. Blumstein, 405 U. S. 330, 342-343 (1972); San Antonio Independent School Dist. v. Rodriguez, 411 U. S. 1, 34, n. 75 (1973). As we explained in Mosley: “Chicago may not vindicate its interest in preventing disruption by the wholesale exclusion of picketing on all but one preferred subject. Given what Chicago tolerates from labor picketing, the excesses of some nonlabor picketing may not be controlled by a broad ordinance prohibiting both peaceful and violent picketing. Such excesses 'can be controlled by narrowly drawn statutes/ Saia v. New York, 334 U. S., at 562, focusing on the abuses and dealing evenhandedly with picketing regardless of subject matter.” 408 U. S., at 101-102. Yet here, under the guise of preserving residential privacy, Illinois has flatly prohibited all nonlabor picketing even though it permits labor picketing that is equally likely to intrude on the tranquility of the home.
Moreover, it is the content of the speech that determines whether it is within or without the statute’s blunt prohibition. What we said in Mosley has equal force in the present case:
“The central problem with Chicago’s ordinance is that it describes permissible picketing in terms of its subject matter. Peaceful picketing on the subject of a school’s labor-management dispute is permitted, but all other peaceful picketing is prohibited. The operative distinction is the message on a picket sign. . . . Any restriction on expressive activity because of its content would completely undercut the '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.
“Necessarily, then, under the Equal Protection Clause, not to mention the First Amendment itself, government may not grant the use of a forum to people whose views it finds acceptable, but deny use to those wishing to express less favored or more controversial views. And it may not select which issues are worth discussing or debating in public facilities. There is an ‘equality of status in the field of ideas,’ and government must afford all points of view an equal opportunity to be heard. Once a forum is opened up to assembly or speaking by some groups, government may not prohibit others from assembling or speaking on the basis of what they intend to say. Selective exclusions from a public forum may not be based on content alone, and may not be justified by reference to content alone.” Id., at 95-96 (citations and footnote omitted)
III
Appellant nonetheless contends that this case is distinguishable from Mosley. He argues that the state interests here are especially compelling and particularly well served by a statute that accords differential treatment to labor and non-labor picketing. We explore in turn each of these interests, and the manner in which they are said to be furthered by this statute.
A
Appellant explains that whereas the Chicago ordinance sought to prevent disruption of the schools, concededly a “substantial” and “legitimate” governmental concern, see id., at 99, 100, the Illinois statute was enacted to ensure privacy in the home, a right which ■ appellant views as paramount in our constitutional scheme. For this reason, he contends that the same content-based distinctions held invalid in the Mosley context may be upheld in the present case.
We find it unnecessary, however, to consider whether the State’s interest in residential privacy outranks its interest in quiet schools in the hierarchy of societal values. For even the most legitimate goal may not be advanced in a constitutionally impermissible manner. And though we might agree that certain state interests may be so compelling that where no adequate alternatives exist a content-based distinction— if narrowly drawn — would be a permissible way of furthering those objectives, cf. Schenck v. United States, 249 U. S. 47 (1919), this is not such a case.
First, the generalized classification which the statute draws suggests that Illinois itself has determined that residential privacy is not a transcendent objective: While broadly permitting all peaceful labor picketing notwithstanding the disturbances it would undoubtedly engender, the statute makes no attempt to distinguish among various sorts of nonlabor picketing on the basis of the harms they would inflict on the privacy interest) The apparent overinclusiveness and under-inclusiveness of the statute’s restriction would seem largely to undermine appellant’s claim that the prohibition of all non-labor picketing can be justified by reference to the State’s interest in maintaining domestic tranquility.
More fundamentally, the exclusion for labor picketing cannot be upheld as a means of protecting residential privacy for the simple reason that nothing in the content-based labor-nonlabor distinction has any bearing whatsoever on privacy. Appellant can point to nothing inherent in the nature of peaceful labor picketing that would make it any less disruptive of residential privacy than peaceful picketing on issues of broader social concern. Standing alone, then, the State’s asserted interest in promoting the privacy of the home is not sufficient to save the statute.
B
The second important objective advanced by appellant in support of the statute is the State’s interest in providing special protection for labor protests. He maintains that federal and state law has long exhibited an unusual concern for such activities, and he contends that this solicitude may be furthered by a narrowly drawn exemption for labor picketing.
The central difficulty with this argument is that it forthrightly presupposes that labor picketing is more deserving of First Amendment protection than are public protests over other issues, particularly the important economic, social, and political subjects about which these appellees wish to demonstrate. We reject that proposition. Cf. T. Emerson, The System of Freedom of Expression 444-449' (1970) (suggesting that nonlabor picketing is more akin to pine expression than labor picketing and thus should be subject to fewer restrictions). Public-issue picketing, “an exercise of . . . basic constitutional rights in their most pristine and classic form,” Edwards v. South Carolina, 372 U. S. 229, 235 (1963), has always rested on the highest rung of the hierarchy of First Amendment values: “The maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means, an opportunity essential to the security of the Republic, is a fundamental principle of our constitutional system.” Stromberg v. California, 283 U. S. 359, 369 (1931). See generally A. Meiklejohn, Free Speech and Its Relation to Self-Government (1948). While the State’s motivation in protecting the First Amendment rights of employees involved in labor disputes is commendable, that factor, without more, cannot justify the labor picketing exemption.
C
Appellant’s final contention is that the statute can be justified by some combination of the preceding objectives. This argument is fashioned on two different levels. In its elemental formulation, it posits simply that a distinction between labor and nonlabor picketing is uniquely suited to furthering the legislative judgment that residential privacy should be preserved to the greatest extent possible without also compromising the special protection owing to labor picketing. In short, the statute is viewed as a reasonable attempt to accommodate the competing rights of the homeowner to enjoy his privacy and the employee to demonstrate over labor disputes. But this attempt to justify the statute hinges on the validity of both of these goals, and we have already concluded that the latter — the desire to favor one form of speech over all others — is illegitimate.
The second and more complex formulation of appellant’s position characterizes the statute as a carefully drafted attempt to prohibit that picketing which would impinge on residential privacy while permitting that picketing which would not. In essence, appellant asserts that the exception for labor picketing does not contravene the State’s interest in preserving residential tranquility because of the unique character of a residence that is a “place of employment.” By “inviting” a worker into his home and converting that dwelling into a place of employment, the argument goes, the resident has diluted his entitlement to total privacy. In other words, he has “waived” his right to be free from picketing with respect to disputes arising out of the employment relationship, thereby justifying the statute’s narrow labor exception at those locations.
The flaw in this argument is that it proves too little. Numerous types of peaceful picketing other than labor picketing would have but a negligible impact on privacy interests, and numerous other actions of a homeowner might constitute “nonresidential” uses of his property and would thus serve to vitiate the right to residential privacy. For example, the resident who prominently decorates his windows and front yard with posters promoting the qualifications of one candidate for political office might be said to “invite” a counter-demonstration from supporters of an opposing candidate. Similarly, a county chairman who uses his home to meet with his district captains and to discuss some controversial issue might well expect that those who are deeply concerned about the decision the chairman will ultimately reach would want to make their views known by demonstrating outside his home during the meeting. And, with particular regard to the facts of the instant case, it borders on the frivolous to suggest that a resident who invites a repairman into his home to fix his television set has “waived” his right to privacy with respect to a dispute between the repairman and the local union, but that the official who has voluntarily chosen to enter the public arena has not likewise “waived” his right to privacy with respect to a challenge to his views on significant issues of social and economic policy.
IV
We therefore conclude that appellant has not successfully distinguished Mosley. We are not to be understood to imply, however, that residential picketing is beyond the reach of uniform and nondiscriminatory regulation. For the right to communicate is not limitless. E. g., Cox v. Louisiana, 379 U. S. 536, 554-555 (1965); Cox v. Louisiana, 379 U. S. 559, 563-564 (1965). Even peaceful picketing may be prohibited when it interferes with the operation of vital governmental facilities, see, e. g., ibid, (picketing or parading prohibited near courthouses); Adderley v. Florida, 385 U. S. 39 (1966) (demonstrations prohibited on jailhouse grounds), or when it is directed toward an illegal purpose, see, e. g., Teamsters v. Vogt, Inc., 354 U. S. 284 (1957) (prohibition of picketing directed toward achieving “union shop” in violation of state law).
Moreover, we have often declared that “[a] state or municipality may protect individual privacy by enacting reasonable time, place, and manner regulations applicable to all speech irrespective of content.” Erznoznik v. City of Jacksonville, 422 U. S. 205, 209 (1975) (emphasis supplied). See, e. g., Cox v. New Hampshire, 312 U. S. 569 (1941); Kovacs v. Cooper, 336 U. S. 77 (1949); Poulos v. New Hampshire, 345 U. S. 395 (1953); Cox v. Louisiana, 379 U. S., at 554; Grayned v. City of Rockford, 408 U. S. 104 (1972). In sum, “no mandate in our Constitution leaves States and governmental units powerless to pass laws to protect the public from the kind of boisterous and threatening conduct that disturbs the tranquility of spots selected by the people either for homes, wherein they can escape the hurly-burly of the outside business and political world, or for public and other buildings that require peace and quiet to carry out their functions, such as courts, libraries, schools, and hospitals.” Gregory v. Chicago, 394 U. S. 111, 118 (1969) (Black, J., concurring).
Preserving the sanctity of the home, the one retreat to which men and women can repair to escape from the tribulations of their daily pursuits, is surely an important value. Our decisions reflect no lack of solicitude for the right of an individual “to be let alone” in the privacy of the home, “sometimes the last citadel of the tired, the weary, and the sick.” Id., at 125 (Black, J., concurring). See generally Stanley v. Georgia, 394 U. S. 557 (1969); Rowan v. United States Post Office Dept., 397 U. S. 728 (1970); FCC v. Pacifica Foundation, 438 U. S. 726 (1978); Payton v. New York, 445 U. S. 573 (1980). The State’s interest in protecting the well-being, tranquility, and privacy of the home is certainly of the highest order in a free and civilized society. “ ‘The crucial question, however, is whether [the Illinois’ statute] advances that objective in a manner consistent with the command of the Equal Protection Clause.’ Reed v. Reed, 404 U. S. [71], 76 [(1971)].” Police Department of Chicago v. Mosley, 408 U. S., at 99’. And because the statute discriminates among pickets based on the subject matter of their expression, the answer must be “No.”
The judgment of the Court of Appeals is
Affirmed
A violation of § 21.1-2 is a “Class B” misdemeanor punishable by a fine of up to $500 and imprisonment for not more than six months. See Ill. Rev. Stat., ch. 38, §§ 21.1-3, 1005-8-3, 1005-9-1 (1977).
At least four other States have enacted antiresidential picketing laws similar in form to this statute. See Ark. Stat. Ann. §§ 41-2966 to 41-2968 (1977); Conn. Gen. Stat. § 31-120 (1979); Haw. Rev. Stat. § 379A-1 (1976); Md. Ann. Code, Art. 27, § 580A (1976). Connecticut’s law has been construed to permit all picketing in a residential area except for labor picketing that is not conducted at the situs of a labor dispute. State v. Anonymous, 6 Conn. Cir. 372, 274 A. 2d 897 (App. Div. 1970); DeGregory v. Giesing, 427 F. Supp. 910 (Conn. 1977) (three-judge court). The Maryland statute was declared unconstitutional by the Maryland Court of Appeals in State v. Schuller, 280 Md. 305, 372 A. 2d 1076 (1977). See also People Acting Through Community Effort v. Doorley, 468 F. 2d 1143 (CA1 1972) (invalidating municipal ordinance virtually identical to the Illinois residential picketing statute); but see Wauwatosa v. King, 49 Wis. 2d 398, 182 N. W. 2d 530 (1971) (upholding validity of similar ordinance).
Because the Court of Appeals concluded that the labor dispute exception was not severable from the remainder of the statute, it invalidated the enactment in its entirety. Cf. State v. Schuller, supra, at 318-321, 372 A. 2d, at 1083-1084. The court therefore found it unnecessary to consider the constitutionality under the First Amendment of a statute that prohibited all residential picketing. Brown v. Scott, 602 F. 2d 791, 795, n. 6 (1979). Because we find the present statute defective on equal protection principles, we likewise do not consider whether a statute barring all residential picketing regardless of its subject matter would violate the First and Fourteenth Amendments.
Chicago Municipal Code, ch. 193-1 (i) (1968), provided:
“A person commits disorderly conduct when he knowingly:
“(i) Pickets or demonstrates on a public way within 150 feet of any primary or secondary school building while the school is in session and one-half hour before the school is in session and one-half hour after the school session has been concluded, provided that this subsection does not prohibit the peaceful picketing of any school involved in a labor dispute. . . (Emphasis supplied.)
The Illinois residential picketing statute apparently has not been construed by the state courts. Throughout this litigation, however, all parties and the courts below have interpreted the statutory exception for “peaceful picketing of a place of employment involved in a labor dispute” as embodying the additional requirement that the subject of the picketing be related to the ongoing labor dispute. Police Department of Chicago v. Mosley, 408 TJ. S. 92 (1972), was premised upon an identical construction. See id., at 94, n. 2 (statutory exemption for “the peaceful picketing of any school involved in a labor dispute” applies only to labor picketing of a school involved in such a dispute).
The District Court read the labor exception in this statute as creating two separate classifications: one between “places of employment” and all other “residences,” and a second between “places of employment involved in a labor dispute” and “places of employment not involved in a labor dispute.” The court held that the first classification was a permissible content-neutral regulation of the location of picketing. And although recognizing that the second distinction may well be based on the subject matter of the demonstration, see n. 4, supra, the court held that appellees lacked standing to challenge it because they were not seeking to picket “a place of employment,” and thus would not have benefitted from a determination that the second classification was unconstitutional. Brown v. Scott, 462 F. Supp. 518, 534-535 (1978).
The Court of Appeals, in reversing the District Court, refused to adopt the lower court’s interpretation of the statute. Rather, it read the “place of employment” exception to divide “residences and dwellings” into but two categories — those at which picketing is lawful (i. e., all places of employment involved in labor disputes) and those at which it is unlawful (*. e., all other residences and dwellings). Brown v. Scott, 602 F. 2d, at 793-794. We accept the construction of the Court of Appeals. Appellees sought to picket at a residence and were denied permission to do so. They clearly have standing to attack the statutory classification on which that denial was premised. Indeed, appellant does not challenge the Court of Appeals’ interpretation of the statute, Tr. of Oral Arg. 13, and he concedes that this restriction is content-based, id., at 21.
It is, of course, no answer to assert that the Illinois statute does not discriminate on the basis of the speaker’s viewpoint, but only on the basis of the subject matter of his message. “The First Amendment’s hostility to content-based regulation extends not only to restrictions on particular viewpoints, but also to prohibition of public discussion of an entire topic.” Consolidated Edison Co. v. Public Service Comm’n, post, at 537.
Mosley was neither the Court’s first nor its last pronouncement that the First and Fourteenth Amendments forbid discrimination in the regulation of expression on the basis of the content of that expression. See Cox v. Louisiana, 379 U. S. 536, 581 (1965) (Black, J., concurring):
“Standing, patrolling, or marching back and forth on streets is conduct, not speech, and as conduct can be regulated or prohibited. But by specifically permitting picketing for the publication of labor union views, Louisiana is attempting to pick and choose among the views it is willing to have discussed on its streets. It thus is trying to prescribe by law what matters of public interest people whom it allows to assemble on its streets may and may not discuss. This seems to me to be censorship in a most odious form, unconstitutional under the First and Fourteenth Amendments. And to deny this appellant and his group use of the streets because of their views against racial discrimination, while allowing other groups to use the streets to voice opinions on other subjects, also amounts, I think, to an invidious discrimination forbidden by the Equal Protection Clause of the Fourteenth Amendment.”
See also Erznoznik v. City of Jacksonville, 422 U. S. 205, 209, 215 (1975); Hudgens v. NLRB, 424 U. S. 507, 520 (1976); Madison Joint School District No. 8 v. Wisconsin Employment Relations Comm’n, 429 U. S. 167, 175-176 (1976); First National Bank of Boston v. Bellotti, 435 U. S. 765, 784-785 (1978); Consolidated Edison Co. v. Public Service Comm’n, post, at 536-538.
The importance which the State attaches to the interest in maintaining residential privacy is reflected in the Illinois Legislature’s finding accompanying the residential picketing statute:
“The Legislature finds and declares that men in a free society have the right to quiet enjoyment of their homes; that the stability of community and family life cannot be maintained unless the right to privacy and a sense of security and peace in the home are respected and encouraged; that residential picketing, however just the cause inspiring it, disrupts home, family and communal life; that residential picketing is inappropriate in our society, where the jealously guarded rights of free speech and assembly have always been associated with respect for the rights of others. For these reasons the Legislature finds and declares this Article to be necessary.” IE. Rev. Stat., ch. 38, §21.1-1 (1977).
Cf. Kalven, The Concept of the Public Forum: Cox v. Louisiana, 1965 Sup. Ct. Rev. 1, 29 (quoted in Young v. American Mini Theatres, Inc., 427 U. S. 50, 67, n. 27 (1976) (opinion of Stevens, J.)): “If some groups are exempted from a prohibition on parades and pickets, the rationale for regulation is fatally impeached.” See also Police Department of Chicago v. Mosley, 408 U. S., at 100; Village of Schaumburg v. Citizens for a Better Environment, 444 U. S. 620, 638-639 (1980).
See generally 29 U. S. C. § 141 et seq,; Thornhill v. Alabama, 310 U. S. 88 (1940); AFL v. Swing, 312 U. S. 321 (1941). Appellant does not go so far as to suggest that the National Labor Relations Act preempts the State from enacting a law prohibiting the picketing of residences involved in labor disputes. Such an argument has dubious merit. See Machinists v. Wisconsin Employment Relations Comm’n, 427 U. S. 132, 136, and n. 2 (1976).
See Ill. Rev. Stat., ch. 48, § 2a (1977), which provides:
“No restraining order or injunction shall be granted by any court of this State ... in any case involving or growing out of a dispute concerning terms or conditions of employment, enjoining or restraining any person or persons, either singly or in concert, . . . from peaceably and without threats or intimidation being upon any public street, or thoroughfare or highway for the purpose of obtaining or communicating information, or to peaceably and without threats or intimidation persuade any person or persons to work or to abstain from working, or to employ or to peaceably and without threats or intimidation cease to employ any party to a labor dispute, or to recommend, advise, or persuade others so to do.”
We note that the statute’s labor dispute exemption is overbroad in this respect, for it not only protects the rights of the employee to picket the residence of his employer, but it also permits third parties to picket both the employer and his employee, even when there is no dispute between those individuals. As appellant’s counsel explained at oral argument: “[T]he labor dispute could exist even if the employee wasn’t part of the dispute. For example, if you have a condominium that employs non-union janitors and the non-union janitor is perfectly happy to be there, conceivably union janitors could engage in picketing, very much like a traditional labor law cane.” Tr. of Oral Arg. 14.
An alternative justification for the statute — one not pressed by appellant — is that it is intended to protect privacy in the home, but only insofar as that objective can be accomplished without prohibiting those forms of speech that are peculiarly appropriate to residential neighborhoods and cannot effectively be exercised elsewhere. Since labor picketing arising out of disputes occurring in residential neighborhoods can only be carried out in those neighborhoods, the argument would continue, it is permitted under the statute while other forms of picketing, for which suitable alternative forums will generally exist, are barred.
Even assuming that a content-based distinction might in some cases be permissible on these grounds, but see Schneider v. State, 308 U. S. 147, 163 (1939) (“one is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place”), this is not such a case because the Illinois statute is seriously underinclusive in this respect. It singles out for special protection only one of the many sorts of picketing which must be carried out in residential neighborhoods or not at all. Protests arising out of landlord-tenant relationships, zoning disputes, and historic preservation issues are just some of the many demonstrations that bear a direct relation to residential neighborhoods. See generally Comment, Picketers at the Doorstep, 9 Harv. Civ. Rights-Civ. Lib. L. Rev. 95, 101-102, 106 (1974). Indeed, appellees themselves assert that they want to engage in residential picketing because it is the only effective means they have of communicating their concern about the issue of busing to the desired neighborhood audience. Yet the Illinois statute bars all of these groups from picketing in residential areas while those wishing to picket at the site of a labor dispute are permitted to do so.
See supra, at 461-462.
See n. 12, supra.
Cf. Gertz v. Robert Welch, Inc., 418 U. S. 323 (1974).
Mr. Justice Goldberg’s opinion for the Court in the first Cox case stated: “The rights of free speech and assembly, while fundamental in our democratic society, still do not mean that everyone with opinions or beliefs to express may address a group at any public place and at any time. The constitutional guarantee of liberty implies the existence of an organized society maintaining public order, without which liberty itself would be lost in the excesses of anarchy.” 379 U. S., at 554.
Question: Was the case heard by a three-judge federal district court?
A. Yes
B. No
Answer:
|
songer_typeiss
|
C
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups.
KILMER et al. v. GUSTASON et al.
No. 14467.
United States Court of Appeals Fifth Circuit.
March 31, 1954.
C. Clyde Atkins, Miami, Fla., Cecil T. Farrington, Ft. Lauderdale, Fla., Walton, Hubbard, Schroeder, Lantaff & Atkins, Miami, Fla., for appellants.
T. J. Blackwell, S. J. Powers, Jr., Cody Fowler ' and Walter Humkey, Blackwell, Walker & Gray and Fowler, White, Gillen, Yancey & Humkey, all of Miami, Fla., for appellees.
Before STRUM and RIVES, Circuit Judges, and DAWKINS, District Judge:
STRUM, Circuit Judge.
Plaintiff below, John E. Gustason, ap-pellee here; individually recovered judgment for $15,000 for personal injuries to himself, and in a separate action as administrator of ■ his wife’s estate $27,000 for her wrongful death as a result of an automobile collision alleged to have been the result of the negligence of Marion A. L. Kilmer, who, together with his wife, Cora, were also killed in the collision.
The collision occurred in Iowa. The suits were brought in Florida. The plaintiff, Gustason, was the driver of one ear, Mr. Kilmer driver of the other. The suits were brought against Kilmer’s personal representatives. In Gustason’s individual suit, the defendants filed a counterclaim asserting that Gustason’s negligence was the proximate cause of the collision, but there was a jury verdict of not guilty on the counterclaim.
On appeal, defendants below contend that the trial court erred by permitting the plaintiff, Gustason, to testify as to certain of his own actions, and the position, speed and movements of his own car immediately before the collision. Defendants assert that the admission of this testimony was contrary to Section 90.05, Fla.Stat.Ann., sometimes called the “dead man” statute, which provides, 'inter alia, that no party to any action or proceeding, nor any person interested in the event (sic) thereof, shall be examined as a witness in regard to any transaction or communication between such witness and a person at the time of such examination deceased or insane. Defendants contend that the collision was a “transaction” within the purview of the statute,, and Kilmer being dead the plaintiff, Gustason, should not have been allowed to testify.
In U. S. A. C. Transport, Inc. v. Cor-ley, ,5 Cir., 202 F.2d 8, this court recently considered a like question arising under Section 38-1603(8) of the Georgia Code, which is of substantially like effect as the Florida statute in the respect here under consideration.. We there held that in an action for damages .by the surviving driver of an automobile for .'injuries sustained in a collision with a truck, the driver of which was dead at the time of the trial, it was not reversible error to permit the plaintiff to testify concerning his own actions, and the position and movements of his own car just prior to the collision.
That case is decisive here. The trial judge permitted this plaintiff to testify only as to his own actions, and the position and movements of his own car. These were independent facts, not a part of any transaction or communication between the two drivers. The trial judge, however, carefully excluded all testimony by the plaintiff pertaining to the deceased’s car and its movements, even to the extent of forbidding plaintiff to testify that there was in fact a collision. There was no reversible error in. admitting the evidence in question. In any event, however, Gustason’s testimony on these matters was merely cumulative, and therefore harmless, as all the facts surrounding the collision were also established by the testimony of other and disinterested witnesses. Sea Crest Corp. v. Burley, Fla., 38 So.2d 434; Smith v. Biscayne Park Estates, Fla., 42 So.2d 442; Community Natural Gas Co. v. Henley, 5 Cir., 54 F.2d 59.
The cause of action having arisen in Iowa, the elements and quantum of damages are governed by the laws of that state. Under Iowa law, loss of services and consortium are not recoverable individually by a husband in an action for the death of or injury to his wife. Appellants charge that reversible error was committed by the inclusion of this element of damage in appellees’ complaint and opening statement, which the trial court allowed to go to the jury over objection, and that the court erred in refusing to specifically charge the jury that these elements of damage were not recoverable.
Amongst other things the trial judge stated to the jury in his final charge that the plaintiff originally claimed damages for the loss of services and consortium of his wife, but he had discovered that that element of damage was not recoverable under the laws of Iowa and was being abandoned, “and it is not a claim now included in his demand against the defendants’ estate.” This was a part of the court’s general charge given to the jury just before it retired to consider its verdict. In our opinion, this charge adequately rectified any misstatement of the Iowa rule in counsel’s opening statement to the jury.
Appellants also assert that the judgments are excessive, and should for that reason be reversed, citing several Iowa cases to support the charge of ex-cessiveness. A federal appellate court, however, does not undertake to determine whether a verdict is excessive in fact, but only whether the district court abused its discretion as a matter of law in granting or refusing a new trial on the ground of excessiveness. Houston Coca-Cola Bottling Co. v. Kelley, 5 Cir., 131 F.2d 627; Braniff International Airways v. Harman, 5 Cir., 202 F.2d 928; Sunray Oil Corp. v. Allbritton, 5 Cir., 188 F.2d 751; Atlantic Coast Line R. Co. v. Burkett, 5 Cir., 192 F.2d 941. Certainly it can not be said that these judgments are so inordinately excessive as to be contrary to reason, or the result of sympathy, passion, or prejudice, so as to render them excessive in law.
Finding no error, the judgments appealed from are each Affirmed.
. The Florida Supreme Court holds that “transactions and communications,” as used in Section 90.05, supra, embrace every .variety of affairs which can form the subject of negotiation, interviews, or . actions, between two persons, and include every method by which one person can ■derive impressions or information from the conduct, condition or language of another. Embrey v. Southern Gas & Electric Corp., Fla., 63 So.2d 258, 263; Chapin v. Mitchell, 44 Fla. 225, 32 So. 875, 876.
. In the Georgia suit, plaintiff was permitted to testify, over objection, that he was going 50 miles per hour when he first came- in sight of the bridge, near the south end of which the collision occurred; that he slowed down to 3 or 4 miles per hour when 30 or 40 feet south of the bridge; that he was on his own right hand side of the road ■ as far as he could go and never got to the left of the center of the road.
. In the case at bar, the trial court permitted plaintiff to testify over defendants’ objection: “That when approaching the curve (on which the accident occurred), Gustason was traveling not over 30 miles an hour. That Gustason saw more than one car approaching from the opposite direction on the other side of the highway. That the approaching car passed Gustason when he was about one-third of the way into the curve. That Gustason was on the right hand driving lane. That Gustason stayed on the right hand side of the road. That Gusta-son’s ear came to a sudden stop. That Gustason did not get out of his car on his own power. That the Gustason automobile was on the extreme edge of the pavement, on the southwest side (right hand) of the curve after it stopped. That the highway lanes of traffic were marked with a white center line and yellow no-passing lines in each lane of traffic. That before Gustason got out of his automobile the right wheels of his automobile were between six inches and a foot off the edge of the slab. That Gus-tason’s left wheel was just inside the slab. That Gustason’s left wheel was just inside the yellow line in his lane of traffic. That Gustason had been driving on the outside of his half of the road all the time in the curve.”
Question: What is the general category of issues discussed in the opinion of the court?
A. criminal and prisoner petitions
B. civil - government
C. diversity of citizenship
D. civil - private
E. other, not applicable
F. not ascertained
Answer:
|
sc_jurisdiction
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the manner in which the Court took jurisdiction. The Court uses a variety of means whereby it undertakes to consider cases that it has been petitioned to review. The most important ones are the writ of certiorari, the writ of appeal, and for legacy cases the writ of error, appeal, and certification. For cases that fall into more than one category, identify the manner in which the court takes jurisdiction on the basis of the writ. For example, Marbury v. Madison, 5 U.S. 137 (1803), an original jurisdiction and a mandamus case, should be coded as mandamus rather than original jurisdiction due to the nature of the writ. Some legacy cases are "original" motions or requests for the Court to take jurisdiction but were heard or filed in another court. For example, Ex parte Matthew Addy S.S. & Commerce Corp., 256 U.S. 417 (1921) asked the Court to issue a writ of mandamus to a federal judge. Do not code these cases as "original" jurisdiction cases but rather on the basis of the writ.
POLAR ICE CREAM & CREAMERY CO. v. ANDREWS et al., CONSTITUTING THE FLORIDA MILK COMMISSION, et al.
No. 38.
Argued November 20, 1963.
—Decided January 6, 1964.
Joe J. Harrell argued the cause for appellant. With him on the briefs was J. A. McClain, Jr.
Mallory E. Horne and Johnson S. Savary argued the cause for appellees. With them on the brief were Richard W. Ervin, Attorney General of Florida, and Joseph C. Jacobs, Assistant Attorney General.
Mr. Justice White
delivered the opinion of the Court.
We have before us the recurring question of the validity of a State’s attempt to regulate the supply and distribution of milk and milk products. Challenged in this case is Florida’s system of regulation of the dealings between milk distributors and local producers.
The appellant, Polar Ice Cream & Creamery Company, located in Pensacola, Florida, 16 miles from the Florida-Alabama state line, is a processor and distributor of fluid milk and milk products. It sells fluid milk and milk products for human consumption to consumers and dealers within the State of Florida in competition with nearby Alabama distributors. Pursuant to contracts let after competitive bidding, it also supplies large quantities of milk to military installations, both within and without the State of Florida. It purchases, processes and sells as fluid milk or milk products approximately 5,000,000 gallons of milk each year.
Prior to the regulations challenged here, Polar purchased approximately 30% of its milk requirements from dairy farm producers located within the State of Florida. The remaining 70% was procured from producers, producer pools or brokers in other States, such as Alabama, Mississippi, Wisconsin, Minnesota, Missouri, Virginia, and Illinois. Its customary arrangement with Florida producers was to pay 61 cents per gallon for a specified quantity of milk from each producer and approximately 35.5 cents per gallon for all milk over that quantity. The price Polar paid its out-of-state sources varied; some milk was purchased for as low as 30-35 cents per gallon from Alabama, Virginia, and Arkansas sources. Polar’s Florida producers could at no time supply all of Polar’s milk requirements, but at times produced and sold to Polar amounts equal to or greater than Polar’s sales of fluid milk for human consumption to consumers and dealers in Florida, excluding sales to the military, -sales on reservations, and sales to local schools.
The statute and the orders of the Florida Milk Commission challenged by Polar regulate the dealings between milk distributors and milk producers located within the Pensacola Milk Marketing Area. First, they require that a Pensacola milk distributor pay a minimum price of 61 cents per gallon for all milk purchased from Pensacola producers and sold in Florida as Class I milk, defined as fluid milk or milk products sold in fluid form with exceptions, and substantially lower minimum prices for milk sold as Class II, III, and IV milk, consisting chiefly of nonbeverage milk such as cream, sour cream and other dairy products.
Second, the Commission has established a method by which a proportion of a distributor’s monthly sales in various classes is allocated to designated Pensacola producers. Each Pensacola producer with whom Polar does business between September 1 and November 30 of each year, called the base-fixing period, is assigned an earned base, representing the ratio of milk delivered by such producer to the total milk delivered by all of Polar’s Pensacola producers during the base-fixing period. The resultant percentage is then applied to the number of gallons of milk Polar sells in Class I, II, III, and IV channels monthly, in that order, to determine the number of gallons for which each earned-base producer must be paid the minimum prices assigned to each class or utilization. The allocation of a producer’s deliveries must first be to Class I utilization, with allocation continued thereafter in descending order through the lower classifications. Only deliveries by Pensacola producers are considered in calculating the ratio of each producer’s deliveries to total deliveries to Polar during the base-fixing period and therefore the percentage assigned to these producers totals 100%. The result is that all óf Polar’s Class I sales must be attributed to its Pensacola earned-base producers. Only then may their milk be used for the less remunerative utilizations, and only if these producers do not fulfill Polar’s need for Class I milk may other milk be used for this purpose and thus command a premium price. Moreover, the formula requires that all the milk Polar sells in Florida be first attributed to the purchases that it makes from Pensacola producers. The earned-base percentages remain the same until the next base-fixing period.
Third, the statute forbids termination of the business relationship between a distributor and producer with whom the distributor has had a continuous course of dealings without just cause and provides that rejection or refusal to accept any milk tendered or offered for delivery by a producer in ordinary continuance of a previous course of dealings is a ground for revocation of the distributor’s license. These statutory provisions have been construed to mean that a Florida distributor in a regulated marketing area must accept from his earned-base producers all the milk tendered by such producers, including milk in excess of Class I needs. A distributor is relieved of the obligation to purchase milk from earned-base producers only upon a showing of just cause, which is not met by a demonstration that the Commission’s minimum prices are burdensome or that milk is available elsewhere at a lower price.
It is this three-pronged regulatory structure, requiring Polar to accept its total supply of Class I milk, military milk aside, from designated Pensacola producers at a fixed price, and obligating it to take all milk which these producers offer, which Polar argues imposes an undue burden on interstate commerce.
The Florida Milk Commission also proposed special provisions dealing with milk that is sold to military installations of the United States — military milk. Although challenged by Polar at the outset of this litigation, this plan was not voted into effect. While the present status of military milk under Florida law is not entirely clear from the record or arguments of the parties, we read the testimony of the Commission to mean that Polar is not required to purchase military milk from its Pensacola producers, as it is Class I milk. However, if Polar does utilize milk obtained from its earned-base producers for military sales, it must pay the minimum price applicable to Class I sales. Polar challenges this producer price requirement as inconsistent with the federal procurement policy of competitive bidding, and the Federal Government's exclusive jurisdiction over the installations on which this milk is consumed.
To finance the activities of the Milk Commission, Florida imposes a tax or regulatory fee of 15/100 of 1 cent per gallon of all milk handled by Florida distributors regardless of where purchased or to whom it is sold, including milk that Polar sells to military installations. This tax abates if at any time the revenue exceeds by 25% the total amount of Commission expenditures as budgeted for that fiscal year. Polar, which clearly is obliged to pay this fee, contends that the State is without jurisdiction to include milk sold and delivered to military reservations, exclusive jurisdiction to which has been ceded to the United States, in calculating the amount of the tax.
Since Polar’s objections to the Florida Milk Control Act posed substantial federal questions, a three-judge District Court was convened, 28 U. S. C. § 2281, and testimony was taken and arguments heard in respect to the above questions. This court found that the Florida Milk Control Act was a reasonable exercise of the State’s police power and accordingly rejected Polar’s claims that the Act, in fixing producer prices without assuring Polar any rate of return and in compelling Polar to take all the milk of its earned-base producers, denied it due process of law and equal protection. The District Court also found that Florida’s fee on milk distributed by Polar to military installations was a regulatory fee based on the privilege of doing business in Florida and not a tax and concluded that this measure therefore did not unduly burden interstate commerce or infringe upon the exclusive jurisdiction of the United States over the military installations Polar serves. The Florida producer price controls were said not to conflict with the Federal Procurement Statutes, 10 U. S. C. § 2301 et seq., since they did not impose any restriction on the price paid by the Federal Government for its purchases from Polar. Although finding that the Florida regulations were intended to protect and favor Florida milk producers, the court upheld these regulations over Commerce Clause objections because there was no showing that the alleged discrimination against out-of-state producers burdened or restricted interstate commerce. The decision in Baldwin v. Seelig, 294 U. S. 511, invalidating a state restriction imposed on a milk distributor to shield local milk producers from the effects of out-of-state competition, was deemed inapplicable to Florida’s regulations. Because of the serious questions raised under the Commerce Clause and previous decisions here dealing with milk regulations, we noted probable jurisdiction. 372 U. S. 939. We have determined that under prior cases in this Court dealing with state regulation of the milk industry the Florida law as applied in this case cannot withstand attack based upon the Commerce Clause and that the judgment below must be reversed.
I.
The controlling cases are Baldwin v. Seelig, 294 U. S. 511; Hood & Sons v. Du Mond, 336 U. S. 525; and Dean Milk Co. v. Madison, 340 U. S. 349.
In Baldwin, the Metropolitan Milk District in the State of New York obtained about 70% of its supplies from New York sources, the remaining 30% from other States. The New York law forbade the sale in New York of milk obtained by a distributor from other States unless the distributor had paid a price which would be lawful under the New York price regulations. This provision was attacked by a New York milk distributor, all of whose milk supply was purchased in Vermont for less than the established New York price. Remarking that the New York law aimed at keeping “the system unimpaired by competition from afar,” 294 U. S., at 519, the Court struck down this provision as an impermissible burden upon interstate commerce. New York could not outlaw Vermont milk purchased at below New York prices, for to do so would “set a barrier to traffic between one state and another as effective as if customs duties, equal to the price differential, had been laid upon, the thing transported,” 294 U. S., at 521 — which is forbidden to the States by the Constitution, Art. I, § 10, cl. 2, and reserved to Congress by Art. I, § 8, cl. 3. Nice distinctions between direct and indirect burdens were said to be irrelevant
“when the avowed purpose of the obstruction, as well as its necessary tendency, is to suppress or mitigate the consequences of competition between the states. . . . [A] chief occasion of the commerce clauses was ‘the mutual jealousies and aggressions of the States, taking form in customs barriers and other economic retaliation.’ Farrand, Records of the Federal Convention, vol. II, p. 308; vol. Ill, pp. 478, 547, 548; The Federalist, No. XLII; Curtis, History of the Constitution, vol. 1, p. 502; Story on the Constitution, § 259. If New York, in order to promote the economic welfare of her farmers, may guard them against competition with the cheaper prices of Vermont, the door has been opened to rivalries and reprisals that were meant to be averted by subjecting commerce between the states to the power of the nation.” 294 U. S., at 522.
To the argument that the law was in reality a health measure, since farmers must be protected from competition if they are to provide the reliable supply of healthful milk which the locality is entitled to have, the Court said,
“Let such an exception be admitted, and all that a state will have to do in times of stress and strain is to say that its farmers and merchants and workmen must be protected against competition from without, lest they go upon the poor relief lists or perish altogether. To give entrance to that excuse would be to invite a speedy end of our national solidarity. The Constitution was framed under the dominion of a political philosophy less parochial in range. It was framed upon the theory that the peoples of the several states must sink or swim together, and that in the long run prosperity and salvation are in union and not division.” 294 U. S., at 523.
Baldioin was heavily relied upon in both Du Mond and Dean, supra. In Du Mond, New York was found to have no power under the Commerce Clause to forbid an out-of-state distributor from establishing additional processing plants and additional sources of milk within the State. In Dean, the City of Madison was prevented from reserving the Madison market to producers and distributors located within a specified distance of the city, although purported considerations of public health were advanced as justifying the restriction.
The principles of Baldwin are as sound today as they were when announced. They justify, indeed require, invalidation as a burden on interstate commerce of that part of the Florida regulatory scheme which reserves to its local producers a substantial share of the Florida milk market.
II.
Under the controls challenged here, Polar must buy from its Florida producers, and pay 61 cents per gallon for it, an amount of raw milk equal to its Class I sales if it is available from these producers. If more than this amount is offered, Polar must also take the surplus at the lower established prices. And these obligations continue to bind Polar even though both its Class I needs and the surplus obtainable from Florida producers may steadily increase. Polar obviously will not and cannot use outside milk for those uses for which it is required to use Florida milk. Polar may turn to out-of-state sources only after exhausting the supply offered by its Pensacola producers. Under the challenged regulations, an Alabama dairy farmer could not become one of Polar's regular producers and sell all of his milk to that company. Since he could not share in the Class I market — Pensacola producers are probably able to supply that market — his milk could command only the lower prices applicable to the less remunerative uses, prices which would not cover his cost of production.
The consequences for interstate commerce are clear. In Baldwin New York’s price control removed any economic incentive for a local distributor to purchase out-of-state milk and thereby encouraged its distributors first to consume the local supply of milk before turning to out-of-state sources. Out-of-state milk was denied an equal opportunity to compete with New York-produced milk to the extent that the out-of-state supply bore additional transportation charges. The Florida controls preempt for the Florida producers a large share of the Florida market, especially the most lucrative fluid milk market. Out-of-state milk may not participate in this part of the Florida market, unless local production is inadequate, and given the exclusive domain of the Florida producers over Class I sales, out-of-state milk may not profitably serve the remainder of the Florida market, since it is relegated to the surplus market alone. These barriers are precisely the kind of hindrance to the introduction of milk from other States which Baldwin condemned as an “unreasonable clog upon the mobility of commerce. They set up what is equivalent to a rampart of customs duties designed to neutralize advantages belonging to the place of origin. They are thus hostile in conception as well as burdensome in result.” 294 U. S., at 527.
The exclusion of foreign milk from a major portion of the Florida market cannot be justified as an economic measure to protect the welfare of Florida dairy farmers or as a health measure designed to insure the existence of a wholesome supply of milk. This much Baldwin and Dean made clear. Nor is it an escape from Baldwin to say that Polar has no interest in providing a satisfactory blend price as a basis for ongoing relationships with any out-of-state producer and that its only interest is in buying surplus milk at distress prices from out-of-state sources and selling it at Class I prices in the Florida market, all to the detriment of Florida producers and an orderly market. For this is but another assertion that a State may preempt its market for its own producers to the exclusion of production from other areas. Florida has no power “to prohibit the introduction within her territory of milk of wholesome quality acquired [in another State], whether at high prices or at low ones,” 294 U. S. 521; the State may not, in the sole interest of promoting the economic welfare of its dairy farmers, insulate the Florida milk industry from competition from other States.
Florida, it is true, does not prevent distributors located in other States from selling wholesome fluid milk in the Florida market. But allowing competition on the distributor level is no justification for barring interstate milk from the most lucrative segment of Florida’s raw milk market. Given such distributor competition as there is, there is still milk, in other States which Polar can and wants to acquire and which it will not acquire in the face of the Florida regulations. The burden on commerce and the embargo on out-of-state milk remain.
The cases relied upon by the Commission do not save the regulatory scheme challenged here. Nebbia v. New York, 291 U. S. 502, established that minimum retail and wholesale prices for milk purchased and sold within the State do not offend the Due Process and Equal Protection Clauses. Nor is such price regulation an impermissible burden upon commerce, Highland Farms Dairy v. Agnew, 300 U. S. 608, even as applied to a distributor who purchases and cools milk within the State and then transports it to another State for processing and sale, since the burden on commerce is indirect and only incidental to the regulation of an essentially local activity. Milk Control Board v. Eisenberg Farm Products, 306 U. S. 346. In none of these cases was there any attempt to reserve a local market for local producers or to protect local producers from out-of-state competition by means of purchase and allocation requirements imposed upon milk distributors.
The power which we deny to Florida is reserved to Congress under the Commerce Clause, and we are offered nothing indicating either congressional consent to, or acquiescence in, a regulatory scheme such as Florida has employed. On the contrary, under the present Act authorizing federal marketing orders in the milk industry, such an order may not “prohibit or in any manner limit, in the case of the products of milk, the marketing ... of any milk or product thereof produced in any production area in the United States.” This provision, as the Court explained in Lehigh Valley Coop. v. United States, 370 U. S. 76, was intended to prevent the Secretary of Agriculture from setting up trade barriers to the importation of milk from other production areas in the United States. We seriously doubt that Congress, in denying the power to the Secretary, thereby granted it to the States.
III.
We turn to the matter of Polar’s sales to United States military reservations. Florida does not purport to regulate the price which Polar must charge for milk sold to the Government on or off military bases. Florida regulates only the price which Polar must pay for its milk, not what it must sell it for. Since the holding in Paul v. United States, 371 U. S. 245, dealt only with the conflict between federal procurement regulations and a State’s attempt to prescribe the prices which a distributor must charge for milk sold to the United States, it is not applicable here. Likewise, because Florida regulates only producer prices applicable to sales made by producers to the distributor, none of which occur on military bases, its law is not vulnerable as an attempt to legislate with regard to transactions occurring within federal enclaves subject to the exclusive jurisdiction of the United States. Cf. Standard Oil v. California, 291 U. S. 242, and James v. Dravo Contracting Co., 302 U. S. 134.
However, in the Paul case the United States initially attacked California’s producer prices, along with its distributor prices, as in conflict with federal procurement regulations, an issue which was abandoned in this Court and which was expressly saved in the Court’s opinion. It is that issue which Polar now presents to us.
For good reason we again put off decision of this question to another day. At the outset of this litigation, the trial court temporarily enjoined the application to Polar of a Milk Commission order establishing prices to be paid Florida producers for milk to be sold to military installations and requiring purchases of such milk from designated producers. That order, however, was voted down by the Pensacola producers, leaving considerable confusion, amply demonstrated by the record before us, concerning the status of so-called military milk under the outstanding orders of the Commission. It would seem— although we are not sure, and there were no findings below about these matters — that military milk is Class I milk but that Polar nevertheless need not use Pensacola milk for military sales and is free to purchase out-oUstate milk for this purpose, although if it does use milk purchased from its earned-base producers, it must pay 61 cents per gallon for it. It was apparent from the oral argument that Polar and the Commission were in dispute as to the impact of the existing regulations upon military sales, and we would hesitate to adjudicate the issue tendered in the absence of more helpful testimony and additional consideration of the matter in the court below, particularly since it is not at all clear that Polar has been using Pensacola milk for its military sales, or even that it wants to in the future. If it is free to utilize outside milk, acquired at whatever price, it may not want to pursue the matter at all. Besides, Polar is obtaining a substantial percentage of its total needs from outside the State and the production of Polar’s Pensacola producers may be wholly exhausted by other, nonmilitary, uses to which it may be put.
Moreover, consideration of the possible impact of producer-pricing systems upon federal procurement regulations may be premature at this time, in view of our invalidation of other provisions of the Florida law, provisions not entirely unrelated to the issue of military milk. The whole problem of military sales may take on a different aspect upon remand of this case.
IV.
Polar challenges that provision of the Florida Milk Control Act which imposes a tax in the amount of 15/100 of 1 cent upon each gallon of milk distributed by a Florida distributor. To the extent the computation of the tax includes milk which it sells to Fort Benning, Tyndall Air Force Base, and the Pensacola Naval Air Station, all being federal enclaves over which the United States exercises exclusive jurisdiction, Polar argues that the taxing measure is invalid as beyond the jurisdiction of the State to impose. We do not agree.
Polar’s reliance on James v. Dravo Contracting Co., 302 U. S. 134, and Standard Oil v. California, 291 U. S. 242, is misplaced. The James case dealt with a 2% gross receipts tax levied upon every person engaging in the business of contracting within the State, as applied to a contractor undertaking construction of locks and dams for the United States in certain navigable streams. The Court denied West Virginia’s jurisdiction to assess a gross-receipts tax with respect to work done by the contractor at its plants in Pennsylvania, as well as to work done within the exterior limits of West Virginia on property over which the United States had acquired exclusive jurisdiction. In Standard Oil v. California, California undertook to lay an excise tax upon every gasoline distributor for each gallon of motor vehicle fuel “sold and delivered by him in this State.” The Court found the tax invalid where both sale and delivery occurred within the boundaries of the Pre-sidio of San Francisco, a federal enclave over which the United States exercised exclusive jurisdiction.
In these cases the tax was deemed to fall upon the facilities of the United States or upon activities conducted within these facilities, the principle of both cases being that there was nothing occurring within the State, beyond the borders of the federal enclave, to which the tax could attach. Contrariwise, the Florida tax is on the privilege of engaging in the business of distributing milk or acting as a distributor; a distributor is defined as “any milk dealer who operates a milk gathering station or processing plant where milk is collected and bottled or otherwise processed and prepared for sale.” Fla. Stat. § 501.02. The incidence of the tax appears to be upon the activity of processing or bottling milk in a plant located within Florida, and not upon work performed on a federal enclave or upon the sale and delivery of milk occurring within the boundaries of federal property. Standard Oil and Dravo do not reach this case, for the activity Florida taxes — the processing or bottling of milk — occurs at Polar’s plant prior to the sale and delivery of milk to the Government.
It may be urged that a distributor is a dealer and that a dealer is one who sells milk, including one who sells to and upon federal enclaves. But even so, distributing has, by definition, its processing dimension, a substantial activity occurring within Florida. This is enough to sustain the tax. Besides, 4 U. S. C. § 105; enacted subsequent to James and Standard Oil, supra, confers upon the States jurisdiction to levy and collect a sales or use tax “in any Federal area,” and a sales or use tax is defined as “any tax levied on, with respect to, or measured by, sales ... of tangible personal property . . . .” 4 U. S. C. § 110. We think this provision provides ample basis for Florida to levy a tax measured by the amount of milk Polar distributes monthly, including milk sold to the United States for use on federal enclaves in Florida.
The judgment is reversed and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Chapter 501 of the Florida Statutes establishes a comprehensive scheme for regulation of the milk industry and establishes the Florida Milk Commission. The Act empowers the Commission, inter alia, to supervise and regulate the entire milk industry, including the production, transportation, manufacture, storage, distribution and sale of milk, to establish milk markets within the State, to fix prices to be paid producers within a regulated marketing area by distributors, milk dealers and producer-distributors, and generally to adopt and enforce all rules, regulations, and orders necessary to carry out the purposes of the Act. Fla. Stat. § 501.04. In addition the Commission is authorized to revoke or suspend the license of a milk distributor or dealer when satisfied that the dealer or distributor has rejected or refused milk delivered by a producer in ordinary continuance of a previous course of dealings or when satisfied that the dealer or distributor has committed any act injurious to the public health or public welfare in demoralization of the price structure of pure milk to such an extent as to interfere with an ample supply. Fla. Stat. §§ 501.09 (3) (a), (e). Before the Commission may exercise its supervisory and regulatory powers in any marketing area, however, at least 10% of the producers in that area must petition the Commission for such regulation and a majority of the producers in that area must vote in favor of regulation. Fla. Stat. § 501.20 (1).
In November 1961, the dairy farmers producing milk in the four westernmost Florida counties, Escambia, Santa Rosa, Okaloosa and Walton, voted to place that area under the control of the Florida Milk Commission and thereby subject to the provisions of the Florida Milk Control Act and the orders issued pursuant thereto. Thereupon in January 1962, the Commission issued a series of orders covering the four-county area, termed the Pensacola Milk Marketing Area, and a letter to Polar Ice Cream & Creamery Co. specifying its obligations under the newly imposed regulatory structure. In August 1962, the Commission issued other orders and rules further implementing and defining the earned-base allocation plan challenged herein.
The minimum price established in Official Order PEN-4, January 18, 1962, for the Pensacola area for Class II milk was 1 cent per gallon less than the minimum price established for this class milk in the Miami, Florida, Federal Milk Marketing Order, No. 118, and for Class III milk was 26 cents per gallon. There was no price set for Class IV utilization in this order. Official Order No. 20-29, covering all regulated marketing areas in Florida, effective March 4, 1962, retained the 61 cents per gallon minimum on Class I milk, and adopted the monthly prices in the Miami, Florida, Federal Milk Marketing Order, less 1 cent per gallon, for Class II, III and IV milk. All of the above prices are subject to minor adjustments for variations from the 4% average butterfat content of the milk distributed in each class.
Classes of milk are defined as follows in Official Order No. 20-28: “It Is Hereby Ordered That:
“1. Class I Milk is hereby defined as all fluid milk or milk products sold in fluid form with the exception of buttermilk, chocolate drink and cream.
“2. Class II Milk shall be all skim milk and butterfat:
“(a) Used to produce acidophilus milk, buttermilk, chocolate drink, half and half, light cream, heavy cream and sour cream, and
“(b) Contained in inventories in the form of milk products designated as Class I milk pursuant to paragraph (1) of this section on hand at the end of each month and accounting period; provided, that Class II classification of shrinkage prorated to skim and butterfat, respectively, in producer milk shall not exceed two per cent (2%) of skim and butterfat in producer milk.
“3. Class III Milk shall be all skim milk and butterfat:
“(a) Used to produce any product other than those specified in paragraphs (1) and (2) of this section;
“(b) That portion of fortified milk or skim milk not classified as Class I milk pursuant to subparagraph (l)(a) of this section, and
“(c) In total shrinkage of skim milk and butterfat, respectively, such shrinkage to be prorated to producer milk and other source milk received in the form of fluid milk or skim milk.
“4. Class IV Milk shall be all milk the skim portion of which is:
“(a) Disposed of for fertilizer or livestock feed, and
"(b) Dumped after such prior notification as the Commission administrator may require.”
Milk utilized by the consumer in fluid form, beverage milk, commands a substantially higher price than milk of the identical quality which is used to make manufactured milk products, such as butter, cheese, ice cream and so forth. Accordingly the processor or distributor of milk is able to pay the producer a higher price for milk which is sold in fluid form for human consumption, and most milk-pricing systems require milk to be classified according to use. See Lehigh Valley Coop. v. United States, 370 U. S. 76, 79. The milk industry generally maintains a reserve to meet the changing demands for beverage milk. Since the supply of milk is greater than the demands of the fluid milk market, the excess, referred to as surplus milk, must be channeled to the less-desirable, lower-priced outlets. This explains how Polar is able to purchase milk in Alabama and other States for as low as 30 and 35 cents per gallon and how Polar was able to pay its producers, prior to regulation, as high as 61 cents per gallon for a specified quantity of milk.
Where a distributor sells milk in both fluid and manufactured forms, problems of allocation arise. Under Federal Milk Marketing Orders establishing marketwide pools, the total proceeds received from the sale of milk by regulated handlers or distributors are pooled. A “blend” or average price is calculated by multiplying the “pool” milk disposed of in each class by the established minimum prices for each class, with some further adjustments not pertinent here. See Lehigh Valley Coop., supra, at 80. The “blend” price is then divided among the producers according to the amount of milk each producer sells, regardless of the use to which his milk is actually put. The blend price thus represents an average based upon the combined use of all regulated milk within a marketing area.
Until the Florida Milk Commission’s Rule 220-1.05 was promulgated on August 24, 1962, the applicability of the allocation provision to milk utilized in less than Class I channels was unclear. The Commission’s letter of January 25, 1962, to Polar’s earned-base producers, assigning them bases for 1962, specified that the bases entitled them to that percentage of Polar’s Class I milk sales each month, without referring to Class II, III or IV utilizations. The total of the percentages assigned to these 26 producers was 100%, thus entitling them collectively to all of Polar’s Class I sales for 1962.
Rule 220-1.05 (6) provides:
“Base Percentage; Computation and Application.
“(a) During the base fixing period, a base percentage shall be determined for each producer by calculating the ratio of the milk delivered by each producer to the total milk delivered by all producers for the entire base fixing period, which percentage is referred to herein as 'earned base.’ This computation shall be made immediately following the close of the base fixing period, and within thirty (30) days thereafter, each producer shall be notified by mail of his base percentage and the base percentage of all other producers participating in that particular base. During this period, each plant shall supply the local Deputy Administrator with a summary of its base computations. The producer notification must illustrate how the base percentage for the producer concerned has been determined.
“1. The base percentage earned by each producer shall be applied to the total number of gallons of milk utilized in Class I channels by each distributor and producer-distributor to determine the number of gallons of milk for which the producer must be paid at the Class I price fixed by the Commission. In case a producer fails to produce the amount of milk that his 'earned base’ entitles him to, in Class I channels, such deficit must be reallocated to the other 'earned base’ producers in proportion to their ‘earned bases,’ and the Class I price paid for the milk so reallocated.
“2. The method outlined above for computing allocations to Class I utilization shall be followed in computing allocations for all other classes.
“3. First allocation of a producer’s deliveries shall be to Class I utilization, with allocation continued thereafter in descending order of price through Class IV classification. The balance of any producer’s production after the above allocations may then be placed in the lowest price classification.
“4. In computing Class I sales to be allocated to producers, no adjustment shall be made for milk received by distributors and/or producer-distributors from sources other than ‘earned base’ producers.”
Section 501.05 (3) provides:
“The relationship between a producer and a distributor, under which milk produced by the producer is regularly delivered to and accepted by the distributor, when once established, shall not be terminated either by the producer or by the distributor without just cause therefor, and the approval of the commission. Just cause will be considered by the commission as any cause deemed just by a prudent and reasonable man.”
Section 501.09 (3) provides: “The commission may decline to grant any license ... or revoke a license . . . when satisfied of the existence of any of the following . . .
“(a) That a milk dealer has rejected, without reasonable cause, any milk delivered to and accepted by the milk dealer from a producer delivered by or on behalf of the producer in ordinary continuance of a previous course of dealing, or that a milk dealer has rejected without reasonable cause, or has rejected without reasonable advance notice, any milk_ tendered or offered for delivery to the milk dealer by or on behalf of a producer in ordinary continuance of a previous course of dealing. It is intended hereby to provide and require that a milk dealer shall not reject or refuse to accept any milk tendered or offered for delivery by or on behalf of a producer in ordinary continuance of a previous course of dealing unless there exists reasonable cause for the rejection or refusal to accept such milk and unless the milk dealer has also given . . . advance notice . . . .”
In Borden Co. v. Odham, 121 So. 2d 625, the Florida Supreme Court upheld the Commission’s power to apply the percentage allocation provisions to Class II and III as well as Class I milk and to require a distributor to accept milk in excess of Class I requirements, so long as the Commission acted reasonably. However, since the statute at that time only required reasonable notice for a refusal of milk delivered in the ordinary course of dealings between a distributor and producer, the court held that the Commission’s additional requirement of just cause was beyond its authority. The statute,
Question: What is the manner in which the Court took jurisdiction?
A. cert
B. appeal
C. bail
D. certification
E. docketing fee
F. rehearing or restored to calendar for reargument
G. injunction
H. mandamus
I. original
J. prohibition
K. stay
L. writ of error
M. writ of habeas corpus
N. unspecified, other
Answer:
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sc_adminaction_is
|
A
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether administrative action occurred in the context of the case prior to the onset of litigation. The activity may involve an administrative official as well as that of an agency. To determine whether administration action occurred in the context of the case, consider the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
NEW YORK STATE CONFERENCE OF BLUE CROSS & BLUE SHIELD PLANS et al. v. TRAVELERS INSURANCE CO. et al.
No. 93-1408.
Argued January 18, 1995
Decided April 26, 1995
Souter, J., delivered the opinion for a unanimous Court.
M. Patricia Smith, Assistant Attorney General of New York, argued the cause for petitioners in all cases. With her on the briefs for petitioners in No. 93-1414 were G. Oliver Koppell, Attorney General, Jerry Boone, Solicitor General, Peter H. Schiff and Andrea Green, Deputy Solicitors General, and Jane Lauer Barker, Assistant Attorney General. Robert A. Bicks, Patricia Anne Kuhn, Alan C. Drewsen, Jeffrey D. Chansler, Bartley J Costello III, Eileen M. Considine, and Beverly Cohen filed briefs for petitioners in No. 93-1408. Jeffrey J. Sherrin, Philip Rosenberg, and H. Bartow Farr III filed briefs for petitioner in No. 93-1415.
Deputy Solicitor General Kneedler argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Days, James A. Feldman, Allen H. Feldman, Nathaniel I. Spiller, and Judith D. Heimlich.
Craig P. Murphy argued the cause for respondents Travelers Insurance Co. et al. in all cases. With him on the brief were Darrell M. Joseph, Stephen M. Shapiro, Kenneth S. Geller, Andrew J. Pincus, Charles Rothfeld, Donald M. Falk, Zoe Baird, Theresa L. Sorota, Philip E. Stano, and Raymond A. dAmico. Harold N. Iselin argued the cause for respondents New York State Health Maintenance Organization Conference et al. in all cases. With him on the brief were Wendy L. Ravitz and Glen D. Hager
Together with No. 93-1414, Pataki, Governor of New York, et al. v. Travelers Insurance Co. et al., and No. 93-1415, Hospital Association of New York State v. Travelers Insurance Co. et al., also on certiorari to the same court.
Briefs of amici curiae urging reversal were filed for the State of Minnesota et al. by Hubert H. Humphrey III, Attorney General of Minnesota, and Richard S. Slowes, Assistant Attorney General, Richard Blumenthal, Attorney General of Connecticut, and Phyllis E. Hyman, Assistant Attorney General, J. Joseph Curran, Jr., Attorney General of Maryland, and Stanley Lustman and Elizabeth M. Kameen, Assistant Attorneys General, Roland W. Burris, Attorney General of Illinois, Pamela Carter, Attorney General of Indiana, Scott Harshbarger, Attorney General of Massachusetts, Jeremiah W. (Jay) Nixon, Attorney General of Missouri, Joseph P. Mazurek, Attorney General of Montana, Ernest D. Preate, Jr., Attorney General of Pennsylvania, Dan Morales, Attorney General of Texas, Darrell V. McGraw, Jr., Attorney General of West Virginia, and Joseph B. Meyer, Attorney General of Wyoming; for the American Federation of State County and Municipal Employees, AFL-CIO, by Larry P. Weinberg, John C. Dempsey, Robert M. Weinberg, Ian D. Lanoff, and Andrew D. Roth; for the American Hospital Association et al. by Peter F. Nadel, Margaret J. Hardy, William T. McGrail, and Dorothy Grandolfi Wagg; and for the National Governors’ Association et al. by Richard Ruda and Lee Fennell.
Briefs of amici curiae urging affirmance were filed for the Association of Private Pension and Welfare Plans et al. by Edward R. Mackiewicz; for Group Health Association of America, Inc., by Alan J. Davis and Brian D. Redraw; for the Federation of American Health Systems by Carl Weiss-burg and Robert E. Goldstein; for the National Carriers’ Conference Committee by Benjamin W. Boley, David P. Lee, and William H. Dempsey; for the National Coordinating Committee for Multiemployer Plans by Gerald M. Feder and Diana L. S. Peters; for the NYSA-ILA Welfare Fund et al. by C. Peter Lambos, Donato Caruso, Thomas W. Gleason, Ernest L. Mathews, Jr., and Kevin Marrinan; and for the Trustees of and the Pension Hospitalization Benefit Plan of the Electrical Industry et al. by Edward J. Groarke.
Briefs of amici curiae were filed for the International Foundation of Employee Benefit Plans by Paul J. Ondrasik, Jr., and Sara E. Hauptfuehrer; and for the Self-Insurance Institute of America, Inc., by George J. Pantos.
Justice Souter
delivered the opinion of the Court.
A New York statute requires hospitals to collect surcharges from patients covered by a commercial insurer but not from patients insured by a Blue Cross/Blue Shield plan, and it subjects certain health maintenance organizations (HMO’s) to surcharges that vary with the number of Medicaid recipients each enrolls. N. Y. Pub. Health Law § 2807-c (McKinney 1993). These cases call for us to decide whether the Employee Retirement Income Security Act of 1974 (ERISA), 88 Stat. 829, as amended, 29 U. S. C. § 1001 et seq. (1988 ed. and Supp. V), pre-empts the state provisions for surcharges on bills of patients whose commercial insurance coverage is purchased by employee health-care plans governed by ERISA, and for surcharges on HMO’s insofar as their membership fees are paid by an ERISA plan. We hold that the provisions for surcharges do not “relate to” employee benefit plans within the meaning of ERISA’s preemption provision, § 514(a), 29 U. S. C. § 1144(a), and accordingly suffer no pre-emption.
I
A
New York’s Prospective Hospital Reimbursement Methodology (NYPHRM) regulates hospital rates for all in-patient care, except for services provided to Medicare beneficiaries. N. Y. Pub. Health Law §2807-c (McKinney 1993). The scheme calls for patients to be charged not for the cost of their individual treatment, but for the average cost of treating the patient’s medical problem, as classified under one or another of 794 Diagnostic Related Groups (DRG’s). The charges allowable in accordance with DRG classifications are adjusted for a specific hospital to reflect its particular operating costs, capital investments, bad debts, costs of charity care, and the like.
Patients with Blue Cross/Blue Shield coverage, Medicaid patients, and HMO participants are billed at a hospital’s DRG rate. N. Y. Pub. Health Law § 2807 — c(l)(a); see also Brief for Petitioners Pataki et al. 4. Others, however, are not. Patients served by commercial insurers providing inpatient hospital coverage on an expense-incurred basis, by self-insured funds directly reimbursing hospitals, and by certain workers’ compensation, volunteer firefighters’ benefit, ambulance workers’ benefit, and no-fault motor vehicle insurance funds, must be billed at the DRG rate plus a 13% surcharge to be retained by the hospital. N. Y. Pub. Health Law §2807-c(l)(b). For the year ending March 31, 1993, moreover, hospitals were required to bill commercially insured patients for a further 11% surcharge to be turned over to the State, with the result that these patients were charged 24% more than the DRG rate. § 2807 — c(ll)(i).
New York law also imposes a surcharge on HMO’s, which varies depending on the number of eligible Medicaid recipients an HMO has enrolled, but which may run as high as 9% of the aggregate monthly charges paid by an HMO for its members’ in-patient hospital care. §§2807-c(2-a)(a) to (2-a)(e). This assessment is not an increase in the rates to be paid by an HMO to hospitals, but a direct payment by the HMO to the State’s general fund.
B
ERISA’s comprehensive regulation of employee welfare and pension benefit plans extends to those that provide “medical, surgical, or hospital care or benefits” for plan participants or their beneficiaries “through the purchase of insurance or otherwise.” §3(1), 29 U. S. C. §1002(1). The federal statute does not go about protecting plan participants and their beneficiaries by requiring employers to provide any given set of minimum benefits, but instead controls the administration of benefit plans, see §2, 29 U. S. C. § 1001(b), as by imposing reporting and disclosure mandates, §§ 101-111, 29 U. S. C. §§ 1021-1031, participation and vesting requirements, §§201-211, 29 U. S. C. §§1051-1061, funding standards, §§301-308, 29 U. S. C. §§1081-1086, and fiduciary responsibilities for plan administrators, §§401-414, 29 U. S. C. §§1101-1114. It envisions administrative oversight, imposes criminal sanctions, and establishes a comprehensive civil enforcement scheme. §§501-515, 29 U. S. C. §§ 1131— 1145. It also pre-empts some state law. §514, 29 U. S. C. §1144.
Section 514(a) provides that ERISA “shall supersede any and all State laws insofar as they ... relate to any employee benefit plan” covered by the statute, 29 U. S. C. § 1144(a), although pre-emption stops short of “any law of any State which regulates insurance.” § 514(b)(2)(A), 29 U. S. C. § 1144(b)(2)(A). (This exception for insurance regulation is itself limited, however, by the provision that an employee welfare benefit plan may not “be deemed to be an insurance company or other insurer ... or to be engaged in the business of insurance . . . .” § 514(b)(2)(B), 29 U. S. C. § 1144(b)(2)(B).) Finally, ERISA saves from pre-emption “any generally applicable criminal law of a State.” § 514(b)(4), 29 U. S. C. § 1144(b)(4).
C
On the claimed authority of ERISA’s general pre-emption provision, several commercial insurers, acting as fiduciaries of ERISA plans they administer, joined with their trade associations to bring actions against state officials in United States District Court seeking to invalidate the 13%, 11%, and 9% surcharge statutes. The New York State Conference of Blue Cross and Blue Shield plans, Empire Blue Cross and Blue Shield (collectively the Blues), and the Hospital Association of New York State intervened as defendants, and the New York State Health Maintenance Organization Conference and several HMO’s intervened as plaintiffs. The District Court consolidated the actions and granted summary judgment to the plaintiffs. Travelers Ins. Co. v. Cuomo, 813 F. Supp. 996 (SDNY 1993). The court found that although the surcharges “do not directly increase a plan’s costs or [a]ffect the level of benefits to be offered” there could be “little doubt that the [surcharges at issue will have a significant effect on the commercial insurers and HMOs which do or could provide coverage for ERISA plans and thus lead, at least indirectly, to an increase in plan costs.” Id., at 1003 (footnote omitted). It found that the “entire justification for the [sjurcharges is premised on that exact result — that the [surcharges will increase the cost of obtaining medical insurance through any source other than the Blues to a sufficient extent that customers will switch their coverage to and ensure the economic viability of the Blues.” Ibid, (footnote omitted). The District Court concluded that this effect on choices by ERISA plans was enough to trigger pre-emption under § 514(a) and that the surcharges were not saved by § 514(b) as regulating insurance. Id., at 1003-1008. The District Court accordingly enjoined enforcement of “those surcharges against any commercial insurers or HMOs in connection with their coverage of . . . ERISA plans.” Id., at 1012.
The Court of Appeals for the Second Circuit affirmed, relying on our decisions in Shaw v. Delta Air Lines, Inc., 463 U. S. 85 (1983), and District of Columbia v. Greater Washington Bd. of Trade, 506 U. S. 125 (1992), holding that ERISA’s pre-emption clause must be read broadly to reach any state law having a connection with, or reference to, covered employee benefit plans. Travelers Ins. Co. v. Cuomo, 14 F. 3d 708, 718 (1994). In the light of our decision in Ingersoll-Rand Co. v. McClendon, 498 U. S. 133, 141 (1990), the Court of Appeals abandoned its own prior decision in Rebaldo v. Cuomo, 749 F. 2d 133, 137 (1984), cert. denied, 472 U. S. 1008 (1985), which had drawn upon the definition of the term “State” in ERISA § 514(c)(2), 29 U. S. C. § 1144(c)(2), to conclude that “a state law must ‘purpor[t] to regulate . .. the terms and conditions of employee benefit plans’ to fall within the preemption provision” of ERISA. 14 F. 3d, at 719 (internal quotation marks omitted). Rejecting that narrower approach to ERISA pre-emption, it relied on our statement in Ingersoll-Rand that under the applicable “ ‘broad common-sense meaning,’ a state law may ‘relate to’ a benefit plan, and thereby be pre-empted, even if the law is not specifically designed to affect such plans, or the effect is only indirect.” 498 U. S., at 139; see 14 F. 3d, at 718.
The Court of Appeals agreed with the trial court that the surcharges were meant to increase the costs of certain insurance and health care by HMO’s, and held that this “purpose[ful] interference] with the choices that ERISA plans make for health care coverage ... is sufficient to constitute [a] ‘connection with’ ERISA plans” triggering pre-emption. Id., at 719. The court’s conclusion, in sum, was that “the three surcharges ‘relate to’ ERISA because they impose a significant economic burden on commercial insurers and HMOs” and therefore “have an impermissible impact on ERISA plan structure and administration.” Id., at 721. In the light of its conclusion that the surcharge statutes were not otherwise saved by any applicable exception, the court held them pre-empted. Id., at 723. It recognized the apparent conflict between its conclusion and the decision of the Third Circuit in United Wire, Metal and Machine Health and Welfare Fund v. Morristown Memorial Hosp., 995 F. 2d 1179, 1191, cert. denied, 510 U. S. 944 (1993), which held that New Jersey’s similar ratesetting statute “does not relate to the plans in a way that triggers ERISA’s preemption clause.” See 14 F. 3d, at 721, n. 3. We granted certiorari to resolve this conflict, 513 U. S. 920 (1994), and now reverse and remand.
II
Our past cases have recognized that the Supremacy Clause, U. S. Const., Art. VI, may entail pre-emption of state law either by express provision, by implication, or by a conflict between federal and state law. See Pacific Gas & Elec. Co. v. State Energy Resources Conservation and Development Comm'n, 461 U. S. 190, 203-204 (1983); Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 230 (1947). And yet, despite the variety of these opportunities for federal preeminence, we have never assumed lightly that Congress has derogated state regulation, but instead have addressed claims of pre-emption with the starting presumption that Congress does not intend to supplant state law. See Maryland v. Louisiana, 451 U. S. 725, 746 (1981). Indeed, in cases like this one, where federal law is said to bar state action in fields of traditional state regulation, see Hillsborough County v. Automated Medical Laboratories, Inc., 471 U. S. 707, 719 (1985), we have worked on the “assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.” Rice, supra, at 230. See, e. g., Cipollone v. Liggett Group, Inc., 505 U. S. 504, 516 (1992); id., at 532-533 (Blackmun, J., concurring in part, concurring in judgment in part, and dissenting in part); Metropolitan Life Ins. Co. v. Massachusetts, 471 U. S. 724, 740 (1985); Jones v. Rath Packing Co., 430 U. S. 519 (1977); Napier v. Atlantic Coast Line R. Co., 272 U. S. 605, 611 (1926).
Since pre-emption claims turn on Congress’s intent, Cipollone, supra, at 516; Shaw, supra, at 95, we begin as we do in any exercise of statutory construction with the text of the provision in question, and move on, as need be, to the structure and purpose of the Act in which it occurs. See, e. g., Ingersoll-Rand, supra, at 138. The governing text of ERISA is clearly expansive. Section 514(a) marks for preemption “all state laws insofar as they . . . relate to any employee benefit plan” covered by ERISA, and one might be excused for wondering, at first blush, whether the words of limitation (“insofar as they ... relate”) do much limiting. If “relate to” were taken to extend to the furthest, stretch of its indeterminacy, then for all practical purposes pre-emption would never run its course, for “[rjeally, universally, relations stop nowhere,” H. James, Roderick Hudson xli (New York ed., World’s Classics 1980). But that, of course, would be to read Congress’s words of limitation as mere sham, and to read the presumption against pre-emption out of the law whenever Congress speaks to the matter with generality. That said, we have to recognize that our prior attempt to construe the phrase “relate to” does not give us much help drawing the line here.
In Shaw, we explained that “[a] law ‘relates to’ an employee benefit plan, in the normal sense of the phrase, if it has a connection with or reference to such a plan.” 463 U. S., at 96-97. The latter alternative, at least, can be ruled out. The surcharges are imposed upon patients and HMO’s, regardless of whether the commercial coverage or membership, respectively, is ultimately secured by an ERISA plan, private purchase, or otherwise, with the consequence that the surcharge statutes cannot be said to make “reference to” ERISA plans in any manner. Cf. Greater Washington Bd. of Trade, 506 U. S., at 130 (striking down District of Columbia law that “specifically refers to welfare benefit plans regulated by ERISA and on that basis alone is pre-empted”). But this still leaves us to question whether the surcharge laws have a “connection with” the ERISA plans, and here an uncritical literalism is no more help than in trying to construe “relate to.” For the same reasons that infinite relations cannot be the measure of pre-emption, neither can infinite connections. We simply must go beyond the unhelpful text and the frustrating difficulty of defining its key term, and look instead to the objectives of the ERISA statute as a guide to the scope of the state law that Congress understood would survive.
A
As we have said before, § 514 indicates Congress’s intent to establish the regulation of employee welfare benefit plans “as exclusively a federal concern.” Alessi v. Raybestos-Manhattan, Inc., 451 U. S. 504, 523 (1981). We have found that in passing § 514(a), Congress intended
“to ensure that plans and plan sponsors would be subject to a uniform body of benefits law; the goal was to minimize the administrative and financial burden of complying with conflicting directives among States or between States and the Federal Government..., [and to prevent] the potential for conflict in substantive law ... requiring the tailoring of plans and employer conduct to the peculiarities of the law of each jurisdiction.” Ingersoll-Rand, 498 U. S., at 142.
This objective was described in the House of Representatives by a sponsor of the Act, Representative Dent, as being to “eliminate] the threat of conflicting and inconsistent State and local regulation.” 120 Cong. Rec. 29197 (1974). Senator Williams made the same point, that “with the narrow exceptions specified in the bill, the substantive and enforcement provisions . . . are intended to preempt the field for Federal regulations, thus eliminating the threat of conflicting or inconsistent State and local regulation of employee benefit plans.” Id., at 29933. The basic thrust of the pre-emption clause, then, was to avoid a multiplicity of regulation in order to permit the nationally uniform administration of employee benefit plans.
Accordingly in Shaw, for example, we had no trouble finding that New York’s “Human Rights Law, which prohibited] employers from structuring their employee benefit plans in a manner that discriminate^] on the basis of pregnancy, and [New York’s] Disability Benefits Law, which require[d] employers to pay employees specific benefits, clearly ‘relate[d] to’ benefit plans.” 463 U. S., at 97. These mandates affecting coverage could have been honored only by varying the subjects of a plan’s benefits whenever New York law might have applied, or by requiring every plan to provide all beneficiaries with a benefit demanded by New York law if New York law could have been said to require it for any one beneficiary. Similarly, Pennsylvania’s law that prohibited “plans from . . . requiring reimbursement [from the beneficiary] in the event of recovery from a third party” related to employee benefit plans within the meaning of § 514(a). FMC Corp. v. Holliday, 498 U. S. 52, 60 (1990). The law “prohibited] plans from being structured in a manner requiring reimbursement in the event of recovery from a third party” and “require[d] plan providers to calculate benefit levels in Pennsylvania based on expected liability conditions that differ from those in States that have not enacted similar antisubrogation legislation,” thereby “frustrat[ing] plan administrators’ continuing obligation to calculate uniform benefit levels nationwide.” Ibid. Pennsylvania employees who recovered in negligence actions against tortfeasors would, by virtue of the state law, in effect have been entitled to benefits in excess of what plan administrators intended to provide, and in excess of what the plan provided to employees in other States. Along the same lines, New Jersey could not prohibit plans from setting workers’ compensation payments off against employees’ retirement benefits or pensions, because doing so would prevent plans from using a method of calculating benefits permitted by federal law. Alessi, supra, at 524. In each of these cases, ERISA pre-empted state laws that mandated employee benefit structures or their administration. Elsewhere, we have held that state laws providing alternative enforcement mechanisms also relate to ERISA plans, triggering pre-emption. See Ingersoll-Rand, supra.
B
Both the purpose and the effects of the New York surcharge statute distinguish it from the examples just given. The charge differentials have been justified on the ground that the Blues pay the hospitals promptly and efficiently and, more importantly, provide coverage for many subscribers whom the commercial insurers would reject as unacceptable risks. The Blues’ practice, called open enrollment, has consistently been cited as the principal reason for charge differentials, whether the differentials resulted from voluntary negotiation between hospitals and payers as was the case prior to the NYPHRM system, or were created by the surcharges as is the case now. See, e. g., Charge Differential Analysis Committee, New York State Hospital Review and Planning Council, Report (1989), reprinted in Joint Appendix in No. 93-7132 (CA2), pp. 702, 705, 706 (J. A. CA2); J. Corcoran, Superintendent of Insurance, Update of 1984 Position Paper of The New York State Insurance Department on Inpatient Reimbursement Rate Differential Provided Non-Profit Insurers 6-7 (1988) (J. A. CA2, at 699-700); R. Trussell, Prepayment for Hospital Care In New York State 170 (1958) (J. A. CA2, at 664) (Trussell); Thorpe, Does All-Payer Rate Setting Work? The Case of the New York Prospective Hospital Reimbursement Methodology, 12 J. Health Politics, Policy, & Law 391, 402 (1987). Since the surcharges are presumably passed on at least in part to those who purchase commercial insurance or HMO membership, their effects follow from their purpose. Although there is no evidence that the surcharges will drive every health insurance consumer to the Blues, they do make the Blues more attractive (or less unattractive) as insurance alternatives and thus have an indirect economic effect on choices made by insurance buyers, including ERISA plans.
An indirect economic influence, however, does not bind plan administrators to any particular choice and thus function as a regulation of an ERISA plan itself; commercial insurers and HMO’s may still offer more attractive packages than the Blues. Nor does the indirect influence of the surcharges preclude uniform administrative practice or the provision of a uniform interstate benefit package if a plan wishes to provide one. It simply bears on the costs of benefits and the relative costs of competing insurance to provide them. It is an influence that can affect a plan’s shopping decisions, but it does not affect the fact that any plan will shop for the best deal it can get, surcharges or no surcharges.
There is, indeed, nothing remarkable about surcharges on hospital bills, or their effects on overall cost to the plans and the relative attractiveness of certain insurers. Rate variations among hospital providers are accepted examples of cost variation, since hospitals have traditionally “attempted to compensate for their financial shortfalls by adjusting their price . . . schedules for patients with commercial health insurance.” Thorpe, 12 J. Health Politics, Policy, & Law, at 394. Charge differentials for commercial insurers, even prior to state regulation, “varied dramatically across regions, ranging from 13 to 36 percent,” presumably reflecting the geographically disparate burdens of providing for the uninsured. Id., at 400; see id., at 398-399; see also, e. g., Trussell 170 (J. A. CA2, at 664); Bobinski, Unhealthy Federalism: Barriers to Increasing Health Care Access for the Uninsured, 24 U. C. D. L. Rev. 255, 267, and n. 44 (1990).
If the common character of rate differentials even in the absence of state action renders it unlikely that ERISA preemption was meant to bar such indirect economic influences under state law, the existence of other common state action with indirect economic effects on a plan’s costs leaves the intent to pre-empt even less likely. Quality standards, for example, set by the State in one subject area of hospital services but not another would affect the relative cost of providing those services over others and, so, of providing different packages of health insurance benefits. Even basic regulation of employment conditions will invariably affect the cost and price of services.
Quality control and workplace regulation, to be sure, are presumably less likely to affect premium differentials among competing insurers, but that does not change the fact that such state regulation will indirectly affect what an ERISA or other plan can afford or get for its money. Thus, in the absence of a more exact guide to intended pre-emption than § 514, it is fair to conclude that mandates for rate differentials would not be pre-empted unless other regulation with indirect effects on plan costs would be superseded as well. The bigger the package of regulation with indirect effects that would fall on the respondents’ reading of § 514, the less likely it is that federal regulation of benefit plans was intended to eliminate state regulation of health care costs.
Indeed, to read the pre-emption provision as displacing all state laws affecting costs and charges on the theory that they indirectly relate to ERISA plans that purchase insurance policies or HMO memberships that would cover such services would effectively read the limiting language in § 514(a) out of the statute, a conclusion that would violate basic principles of statutory interpretation and could not be squared with our prior pronouncement that “[p]re-emption does not occur ... if the state law has only a tenuous, remote, or peripheral connection with covered plans, as is the case with many laws of general applicability.” District of Columbia v. Greater Washington Bd. of Trade, 506 U. S., at 130, n. 1 (internal quotation marks and citations omitted). While Congress’s extension of pre-emption to all “state laws relating to benefit plans” was meant to sweep more broadly than “state laws dealing with the subject matters covered by ERISA[,] reporting, disclosure, fiduciary responsibility, and the like,” Shaw, 463 U. S., at 98, and n. 19, nothing in the language of the Act or the context of its passage indicates that Congress chose to displace general health care regulation, which historically has been a matter of local concern, see Hillsborough County v. Automated Medical Laboratories, Inc., 471 U. S., at 719; 1 B. Furrow, T. Greaney, S. Johnson, T. Jost, & R. Schwartz, Health Law §§ 1-6, 1-23 (1995).
In sum, cost uniformity was almost certainly not an object of pre-emption, just as laws with only an indirect economic effect on the relative costs of various health insurance packages in a given State are a far cry from those “conflicting directives” from which Congress meant to insulate ERISA plans. See 498 U. S., at 142. Such state laws leave plan administrators right where they would be in any case, with the responsibility to choose the best overall coverage for the money. We therefore conclude that such state laws do not bear the requisite “connection with” ERISA plans to trigger pre-emption.
C
This conclusion is confirmed by our decision in Mackey v. Lanier Collection Agency & Service, Inc., 486 U. S. 825 (1988), which held that ERISA pre-emption falls short of barring application of a general state garnishment statute to participants’ benefits in the hands of an ERISA welfare benefit plan. We took no issue with the argument of the Mackey plan’s trustees that garnishment would impose administrative costs and burdens upon benefit plans, id., at 831, but concluded from the text and structure of ERISA’s preemption and enforcement provisions that “Congress did not intend to forbid the use of state-law mechanisms of executing judgments against ERISA welfare benefit plans, even when those mechanisms prevent plan participants from receiving their benefits.” Id., at 831-832. If a law authorizing an indirect source of administrative cost is not pre-empted, it should follow that a law operating as an indirect source of merely economic influence on administrative decisions, as here, should not suffice to trigger pre-emption either.
The commercial challengers counter by invoking the earlier case of Metropolitan Life Ins. Co. v. Massachusetts, 471 U. S. 724 (1985), which considered whether a State could mandate coverage of specified minimum mental-health-care benefits by policies insuring against hospital and surgical expenses. Because the regulated policies included those bought by employee welfare benefit plans, we recognized that the law “directly affected” such plans. Id., at 732. Although we went on to hold that the law was ultimately saved from pre-emption by the insurance saving clause, § 514(b)(2)(A), 29 U. S. C. § 1144(b)(2)(A), respondents proffer the first steps in our decision as support for their argument that all laws affecting ERISA plans through their impact on insurance policies “relate to” such plans and are pre-empted unless expressly saved by the statute. The challengers take Metropolitan Life too far, however.
The Massachusetts statute applied not only to “ ‘[a]ny blanket or general policy of insurance ... or any policy of accident and sickness insurance’ ” but also to “ ‘any employees’ health and welfare fund which provide[d] hospital expense and surgical expense benefits.’” 471 U. S., at 730, n. 11. In fact, the State did not even try to defend its law as unrelated to employee benefit plans for the purpose of § 514(a). Id., at 739. As a result, there was no reason to distinguish with any precision between the effects on insurers that are sufficiently connected with employee benefit plans to “relate to” the plans and those effects that are not. It was enough to address the distinction bluntly, saying on the one hand that laws like the one in Metropolitan Life relate to plans since they “bea[r] indirectly but substantially on all insured benefit plans, . . . requiring] them to purchase the mental-health benefits specified in the statute when they purchase a certain kind of common insurance policy,” ibid., but saying on the other that “laws that regulate only the insurer, or the way in which it may sell insurance, do not ‘relate to’ benefit plans,” id., at 741. Even this basic distinction recognizes that not all regulations that would influence the cost of insurance would relate to employee benefit plans within the meaning of § 514(a). If, for example, a State were to regulate sales of insurance by commercial insurers more stringently than sales by insurers not for profit, the relative cost of commercial insurance would rise; we would nonetheless say, following Metropolitan Life, that such laws “do not ‘relate to’ benefit plans in the first instance.” Ibid. And on the same authority we would say the same about the basic tax exemption enjoyed by nonprofit insurers like the Blues since the days long before ERISA, see Marmor, New York’s Blue Cross and Blue Shield, 1934-1990: The Complicated Politics of Nonprofit Regulation, 16 J. Health Politics,
Question: Did administrative action occur in the context of the case?
A. No
B. Yes
Answer:
|
songer_state
|
56
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the state or territory in which the case was first heard. If the case began in the federal district court, consider the state of that district court. If it is a habeas corpus case, consider the state of the state court that first heard the case. If the case originated in a federal administrative agency, answer "not applicable". Answer with the name of the state, or one of the following territories: District of Columbia, Puerto Rico, Virgin Islands, Panama Canal Zone, or "not applicable" or "not determined".
COMMISSIONER OF INTERNAL REVENUE, Petitioner, v. ESTATE OF James D. McDERMOTT, Deceased, John Lawrence McDermott and Maude E. McDermott, co-executors, Respondents. ESTATE OF James D. McDERMOTT, Deceased, John Lawrence McDermott and Maude E. McDermott, co-executors, Petitioners, v. COMMISSIONER OF INTERNAL REVENUE, Respondent.
Nos. 11154, 11155.
United States Court of Appeals Seventh Circuit.
May 27, 1955.
H. Brian Holland, Asst. Atty. Gen., Grant W. Wiprud, Atty., U. S. Dept, of Justice, Washington, D. C., Ellis N. Slack, Robert N. Anderson, Carolyn R. Just, Sp. Assts. to Atty. Gen., for petitioners.
Frederick O. Dicus, Chicago, Ill., Chapman & Cutler, Chicago, Ill., of counsel, for respondents.
Before MAJOR, FINNEGAN and SCHNACKENBERG, Circuit Judges.
MAJOR, Circuit Judge.
In a controversy between the Commissioner of Internal Revenue and the executors of the estate of James D. Mc-Dermott relative to the estate tax owing by the latter’s estate, the Tax Court, in a decision rendered August 25, 1953, sustained a deficiency in the amount of $1,487.98. This deficiency was predicated upon the value at the time of decedent’s death of the corpus of certain trusts which had been previously created by the decedent. From this decision of the Tax Court the executors petitioned for a review (No. 11155). The executors, however, in this court have abandoned their petition for review and, as a result, we are not concerned with the Tax Court’s decision insofar as it includes the value of the trust corpus in decedent’s gross estate.
The Tax Court also decided that the income attributable to the trust property and received by the trustee subsequent to the creation of the trusts and transfer of the corpus was not includible in decedent's gross estate for estate tax purposes. The Commissioner petitions for review from this portion of the Tax Court’s decision (No. 11154).
The question for decision, therefore, arises from Commissioner’s contention that the Tax Court erred in holding that the value of that portion of the corpus of the trusts attributable to accumulations of income on property transferred by decedent, which income was received by the trustee subsequent to such transfer, was not includible in taxpayer’s estate. The Commissioner’s contention is predicated upon Sec. 811(c) (1) (B) and (d) (1), Internal Revenue Code of 1939, 26 U.S.C.A. § 811.
The major portion of the discussion by the Tax Court, including its findings of fact and conclusions of law, relates to the terms and conditions of the agreements by which the trusts were created and is material in the main to the issue raised by the executors in their petition for review, now abandoned. In a single paragraph the Tax Court disposed of the issue now for decision, as follows:
“Trust accumulations representing income on the property transferred by decedent are not includible in the gross estate. The statute, section 811(c) or (d), is only concerned with transfer, and since trust income was not transferred to the trust by decedent such accumulations as represented by income are not includible in decedent’s gross estate. Commissioner of Internal Revenue v. Gidwitz [7 Cir.], 196 F. 2d 813; affirming 14 T.C. 1263.”
We do not understand there is any dispute as to any issue of fact pertaining to the question for decision and, in view of the situation as previously stated, we think there is no occasion to make more than a brief statement of the facts. On December 23, 1939, the decedent created eight separate trusts for the benefit of his wife and seven children, m each of which the decedent was designated as trustee. The trusts contained customary and ordinary provisions except that the trustee was authorized to accumulate part or all of the trust income, but any such accumulations were to be added to corpus. All beneficiaries survived the decedent, who died April 22, 1947. Upon termination, each trust provided for distribution to the principal named beneficiary, if living, with a contingent provision in the event that such beneficiary was then deceased.
The sole property transferred by the decedent to the trusts was the original corpus, consisting in the aggregate of 800 shares of stock in Olympic Commissary Company. Subsequent to the creation of the trusts and receipt by the trustee of such corporate stock, the trustee received one dividend declared on such stock, the proceeds of which were accumulated and used to purchase United States Savings Bonds. Thereafter the trusts were inactive, no other income was received, distributed or accumulated. In all the trusts except the one established for decedent’s wife, the trustee was authorized to encroach upon and make distributions of corpus to the principal beneficiaries in the event the income from the trusts and from other sources was insufficient to relieve the needs of the beneficiaries arising from “accident, sickness or other emergency or unusual condition of any kind presently unforeseen.” Only through the exercise of such an encroachment power could accumulations be distributed prior to termination of the trusts, but such power was never exercised by the trustee.
We think it is without dispute, at any rate the Tax Court found, “The trusts declare they are ‘irrevocable’ and the trustee is ‘without power at any time to revoke, change or modify the terms hereof,’ ” and “In none of the trusts was there given or reserved to decedent any interest in the principal or income therefrom * * The Tax Court also found: “Separate income tax returns were filed by the trusts in reporting the Olympic dividends received in 1939. [After the trusts were created.] The Bureau first held, under the Clifford doctrine, that this income was taxable to decedent, but later held such income was ‘taxable to the trusts.’ ”
None of the cases cited by the parties in support of their respective positions is conclusive on the issue for decision. They all depend upon varying factual situations, different in some respects from those of the instant case. It has been held, however, under analogous situations that the accumulations from trust property received by a trustee after a complete transfer of such property by the trustee is outside the scope of the statute and is not includible at death in his estate. As previously noted, the Tax Court cited as authority for its position the decision of this court in Commissioner of Internal Revenue v. Gidwitz, 196 F.2d 813. In that case we held that accumulations on a transfer made in contemplation of death were not taxable. The court reasoned that the transfer was complete prior to death and that the statute reached no more than the property transferred to the trust. The accumulations there involved, as in the instant case, were not part of the property transferred and were, therefore, not in-cludible. The Commissioner in his attempt to escape our holding in Gidwitz argues that here “the transfers were not complete until taxpayer’s [decedent’s] death since the property transferred is includible in his estate by reason of retained powers to designate who shall enjoy, under Code Section 811(c) (1) (B), and to change the enjoyment of the trust estate through a power to alter, amend or revoke, under Code Section 811(d) (1).” We think this attempted distinction is without merit. The transfer in the instant case was as complete as it was in the Gidwitz case. The trusts were irrevocable, with no power reserved in the settlor or trustee to revoke, change or modify the terms of the trusts for his benefit or in a manner by which he could ever acquire any interest in either the corpus or the income therefrom. He received the dividends (accumulations) on the trust corpus (corporate stock) solely in his capacity as a trustee. He was without power or right to receive such dividends in any other capacity. The fact that the trustee retained some control over the manner of handling the accumulations and their distribution does not militate against the fact that the transfer of the trust corpus was complete when made. Such control or power as was retained did not or could not result in any financial benefit to the trustee, and neither could it affect the rights of the beneficiaries in the aggregate. It could result in nothing more than the shifting of benefits and a determination as to the time of their enjoyment by the beneficiaries. It is thus our view that the Tax Court properly relied upon the Gidwitz case as authority for its position.
In Burns v. Commissioner, 177 F.2d 739, the Fifth Circuit had before it a situation similar to that before this court in the Gidwitz case. There, as in the instant situation, the trust agreement authorized the trustee to make and change investments and to encroach upon the trust corpus for the benefit of a designated beneficiary in the event an unusual need arose which the trust income was insufficient to meet. There, that court held the same as we held in Gid-witz, that the corpus of the trust transferred in contemplation of death was in-cludible in the gross estate. The court, however, sustained the Tax Court in its refusal to include in the gross estate accumulations of trust income. In so doing the court stated, 177 F.2d at page 741:
“The tax statute in question should be strictly construed in favor of the taxpayer, and since it does not expressly provide for the inclusion of income derived from the transferred property in the gross estate, it is not our prerogative, by judicial fiat, to give it that effect.”
A study of the involved statute without the aid of any adjudicated case leads us to the conclusion that the Commissioner’s contention is not sound. The statute- lays its hand upon property which has been transferred under the enumerated contingencies. Whether the trust agreement comes within the sweep of an enumerated contingency is immaterial unless the property sought to be taxed at decedent’s death was included in the property transferred at the time of the creation of the trust. Irrespective of all other considerations, property to be includible must have been transferred. Obviously, the accumulations here involved were not transferred by the decedent to the trustee. It is true, of course, that the accumulations represented the fruit derived from the property which was transferred but, even so, Congress did not make provision for including the fruit, it provided only for the property transferred. If it desired and intended to include the accumulations, it would have been a simple matter for it to have so stated.
We have examined numerous cases cited and relied upon by Commissioner, which we think are irrelevant to the question with which we are here concerned. The decision of the Tax Court is
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_appel1_1_3
|
D
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case.
OLYMPIA WERKE AKTIENGESELLSCHAFT, Appellant, v. GENERAL ELECTRIC COMPANY, Appellee.
No. 82-1651.
United States Court of Appeals, Fourth Circuit.
Argued Feb. 8, 1983.
Decided July 6, 1983.
Arthur D. Gray, New York City (Hugh A. Chapin, Thomas L. Creel, Kenyon & Kenyon, Washington, D.C. on brief), for appellant.
Edward F. McKie, Jr., Washington, D.C. (Joseph M. Potenza, Schuyler, Banner, Birch, McKie & Beckett, Washington, D.C., on brief), for appellee.
Before RUSSELL, SPROUSE and CHAPMAN, Circuit Judges.
DONALD RUSSELL, Circuit Judge:
This is a patent infringement suit brought by the plaintiff Olympia Werke Aktiengesellschaft (Olympia) against the defendant General Electric Company (GE). After some discovery, GE moved for summary judgment in its favor on the ground of laches. The District Court held that the motion “should be denied” at that time, since it concluded that the issue of laches could best be resolved on a more complete record, developed at a trial. It accordingly ordered “a separate trial ... on the issue of laches.” On the record made on that separate trial the District Court made extensive and detailed findings of fact and conclusions of law and granted “final judgment ... for the defendant on the basis of laches” and ordered the “case ... stricken from the docket of this court.” Olympia appeals from that judgment. We affirm.
In granting judgment in favor of General Electric under “the label” of a finding of laches and in dismissing the action “in toto,” the District Court found (1) that Olympia had been guilty of unreasonable and inexcusable delay in asserting its claim, (2) that such delay exceeded the statutory six years and was presumed to have been prejudicial, and (3) that, General Electric had shown actual prejudice in a number of particulars. In further explication of its finding of actual prejudice, it added a number of additional findings. First, it found that important witnesses had died and that the memories of others had dimmed during the period of Olympia’s delay in the assertion of its claim. Of greater importance to the defendant’s defense, the District Court found expressly that Olympia had, by its conduct, indicated very clearly an abandonment of its patent and a disinterest in its exploitation. It further found that Olympia, after full knowledge of GE’s alleged infringement, stood mute and allowed GE to proceed with large expenditures in effort and money with the development and marketing of its patent in the reasonable belief that it would be unmolested by Olympia. Finally, it found that it was only after it became evident years later that GE had achieved considerable success with its patent, did Olympia assert for the first time any claim of infringement. On the basis of these findings, the District Court granted judgment in favor of the defendant and ordered the dismissal of Olympia’s action “in toto.”
Olympia, by its appeal, contends that these findings, as made by the District Court, are not supported by substantial evidence but that, if they are, they would only bar its infringement claims accruing prior to the commencement of negotiations on October 21, 1974. This, it argues, is because, as a matter of law, a finding of laches bars recovery solely for past infringement and that a finding of estoppel is essential to bar recovery of future damages or to authorize dismissal “in toto.” It accordingly urges error in any event in the denial of damages after October 21, 1974 and in the dismissal of its action. The resolution of these contentions of Olympia entails a consideration of the elements of laches and estoppel, the evidence required to establish each, the consequences of their separate establishment, and, finally, whether the record in this case supports the establishment properly of one or both of such defenses. We accordingly proceed, first, to consider the elements and consequences of the two defenses.
The doctrine of laches as a defense in an infringement case “ ‘may be invoked where the plaintiff has unreasonably and inexcusably delayed in prosecuting its rights and where that delay has resulted in material prejudice to the defendant.’ ” Potter Instrument Co., Inc. v. Storage Technology, 641 F.2d 190, 191 (4th Cir.1981). However, [w]here the plaintiff’s delay has exceeded the statutory six-year period, the delay is presumed unreasonable, and the plaintiff has the burden of justifying the delay. Similarly, when the delay exceeds six years, injury to the defendant is presumed, and the defendant need not necessarily produce additional evidence of prejudice.” Id., at 1326; Dwight & Lloyd Sintering Co. v. Greenawalt, 27 F.2d 823 (2d Cir. 1928). Although laches and estoppel, as asserted in an infringement claim, are related concepts, with considerable similarity in the required proof, they have important differences. Thus, there is this difference in consequences between the two concepts: laches “only bars recovery of damages for past infringement, estoppel forecloses, as well, prospective patent enforcement through an injunction or through damages for continuing infringement.” Potter Instrument, supra, 641 F.2d at 192.
And, while estoppel includes all the elements of laches, its establishment requires proof of an additional element. To elevate the proof beyond the level of laches to that of estoppel, the infringer must establish “ ‘representations or conduct [on the part of the patentee] which justify an inference of abandonment of the patent claim or that the plaintiff has induced the [alleged] infringer to believe that “its business would be unmolested” ’ ” and that the defendant has acted upon such inference to his detriment. Naxon Telesign Corp. v. Bunker Ramo Corp., 686 F.2d 1258, 1266 (7th Cir. 1982); Jensen v. Western Irr. and Mfg., Inc., 650 F.2d 165, 169 (9th Cir.1980); Advanced Hydraulics, Inc. v. Otis Elevator Company, supra, 525 F.2d at 481; Continental Coatings Corporation v. Metco, Inc., supra, 464 F.2d at 1379-80. Unlike in proof of laches, prejudice or detriment may not be established on the basis of a presumption arising from delay beyond the statutory period but actual prejudice or detriment must be proved by the alleged infringer. Naxon Telesign, supra, 686 F.2d at 1264-65. The most common way this additional element is supplied is by proof that, after the patentee has by its conduct justified an inference of abandonment of its patent claim or has led the defendant to believe its business “would be unmolested,” the defendant has “ ‘proceeded to make substantial investments in its business ... and [that] its business grew extensively.’ ” Id., 686 F.2d at 1267 .
Whether laches or estoppel is to be invoked under the facts of the particular case and under the standards of proof stated supra “is within the sound discretion of the district court and will be reversed only if clearly erroneous.” Potter Instrument, supra, 641 F.2d at 191.
In assessing whether the District Court has properly exercised its discretion in invoking either laches or estoppel as a defense, the modern appellate rule seems to be that the Court should look to the findings rather than to the label, whether of laches or estoppel which either the District Court or the parties have assigned to the defense. Thus, even though the defendant has pled as its defense only laches and the District Court has phrased its decision under “the label” of laches, modern appellate authorities have affirmed the dismissal of the action in toto and have “consistently denied the patentee any relief if the evidence of unreasonable and unexcused delay also disclosed that the patentee’s conduct had encouraged the belief that the infringer’s business would be unmolested.” Continental Coatings Corporation v. Metco, Inc., supra, 464 F.2d at 1379-80. To the same effect see: Naxon Telesign Corp. v. Bunker Ramo Corp., supra, 686 F.2d at 1266; Jensen v. Western Irr. and Mfg., Inc., supra, 650 F.2d at 168; Advanced Hydraulics, Inc. v. Otis Elevator Company, supra, 526 F.2d at 479.
Illustrative of these authorities is Continental Coatings. In Continental Coatings, the grant of summary judgment was based on “the defense of laches” and one of the grounds of appellant’s claims of error on appeal was similar to that asserted by Olympia in this case; i.e., that “laches should not foreclose injunctive relief or the recovery of damages subsequent to the filing of the complaint.” 464 F.2d at 1376. In considering such claim of error, Judge (now Justice) Stevens stated as the modern rule, which we earlier had paraphrased: modern authority had “consistently denied” any relief where the proof, whether after trial or on the record on motion for summary judgment, showed that patentee had, by word or conduct, reasonably induced the defendant to assume he would be “unmolested”. Justice Stevens added, in further explanation of this rule that “[i]n some instances [where the rule had been followed] the court failed expressly to mention the term estoppel, but in each case all relief was denied the patentee,” as in estoppel. 464 F.2d at 1380. Since the proof in that case met the requirements of an estoppel and “all relief was denied the patentee” by the District Court, the Court of Appeals affirmed by “accepting an estoppel defense ... advanced under the laches label.” 464 F.2d at 1380.
Accordingly, if the District Court's findings of fact embrace all the elements of an estoppel as stated in Naxon, supra and Continental Coatings, supra, and those findings have substantial support in the record a dismissal of the action, whether under a holding of an estoppel or, as in Continental Coatings, an estoppel tagged with a “laches label”, should be upheld on appeal. Of course, if the findings are not adequate but there is “some evidence of misleading conduct” on the part of the patentee, the proper disposition on appeal of the cause is a remand “for a consideration of whether estoppel bars [the patentee’s] claim for prospective relief.” Jensen, supra, 650 F.2d at 169. It follows that in every appeal of an infringement case where the defense of laches or estoppel or both is in issue, the Court should review the record for laches and for estoppel separately and resolve the appeal on whether the proof establishes estoppel or simply laches or neither estoppel nor laches. See Naxon, supra, 686 F.2d at 1264.
We accordingly address the proof in this case in order to determine whether GE has established an estoppel or, if not estoppel, laches. As an introduction to a discussion of the proof on these questions, a general statement of the facts giving rise to this suit appears in order. The starting point in any such review is Olympia’s patent which it claims to have been infringed by GE. This patent was developed by an inventor in the employ of Olympia named Hénse in the late 1950’s. Application for patent was first filed in Germany in 1957 and in the United States and other countries in 1958 and for which patent issued in 1960. After some active promotion of the patent, Olympia discontinued any attempt at marketing its printer and abandoned its patent everywhere but in the United States in 1962 or 1963. The reason for such abandonment was stated officially in Olympia’s record to be that it “no longer had any interest in maintaining patents on the line printer and wished to avoid the need for continued payment of substantial annuities. The U.S. ’704 Patent was not offered to Hense or abandoned since no annuities [in the United States Patent] needed to be paid.” (Italics added).
In 1967, GE developed and patented its TermiNet printer, which apparently had some similarity to Olympia’s patent. It began actively the manufacture of such printer and the negotiation of licenses with others for the use of its patent both in the United States and abroad. Beginning in early October, 1968, negotiations were instituted with Olympia. These negotiations continued for several years. During the time these negotiations were taking place, GE was aggressively pursuing the marketing of its printer both in the United States and abroad. In the course of such effort it expended considerable sums of money and a great deal of effort. Its efforts were quite successful. All of this was known to Olympia. On October 21, 1974, Olympia first raised with GE the issue of infringement. It was not, however, until April, 1977 that Olympia filed its suit herein. As we have already stated, the District Court, after a full trial, dismissed the action “in toto” under a finding expressed under the “label of laches.” That dismissal is the subject of this appeal.
The finding of laches in this case is fully supported under the principles and standard of proof set forth earlier. There was, for instance, delay in asserting a claim of infringement beyond the statutory six-year period after knowledge of the infringement. Delay of such length is presumed to be both unreasonable and prejudicial. Olympia’s excuse for its delay was an odd claim that it was ignorant of the existence of its patent for many years before it first asserted its infringement claim. There was, it is true, evidence that Olympia had in 1963 or 1964 abandoned its patent and discontinued any effort to exploit it. This, however, is a far cry from proving that no one in authority in its offices knew of the patent. Many of the people in Olympia or in its corporate parent’s organization who had taken part in the early attempt to exploit the patent were still in Olympia’s or its parent’s employment in executive positions during the period when Olympia claims GE was infringing. In fact, one of these officers had written and published in industrial journals in 1962 and 1963 descriptions of the patent and was among the group of Olympia officials who participated in reviewing with GE officials GE’s teleprinter in the period from 1968 to 1972. The District Judge, also, identified others in the executive organization of Olympia and/or its parent with responsibility in the area who knew both of Olympia’s patent’ and of GE’s patent. All of this was painstakingly covered in the District Court’s findings. These and other specific findings amply justify the District Judge’s conclusion that Olympia’s excuse for its inaction was not tenable and that laches barred any claim for damages by Olympia at least prior to the date when negotiations began between the parties on October 21, 1974.
Olympia’s primary objection to the decision, however, relates to the denial of all relief, including future or prospective damages, and the dismissal of its action “in toto.” Its position is that such relief was only available if there has been a finding of an estoppel and that, at least, in haec verba, the District Court did not find an estoppel. However, this position is contrary to what was held in Continental Coatings, supra, 464 F.2d at 1380, Baker Manufacturing Co. v. Whitewater Manufacturing Co., 430 F.2d 1008 (7th Cir.1970), and Jensen, supra, 650 F.2d at 168. In fact, it is suggested in Continental Coatings that it may be assumed that the District Court was dealing with estoppel in the case because of the relief it granted, i.e., it “directed that the entire suit be dismissed.” We need not rest our decision on this, however, under Continental Coatings and the other cases cited supra, the modern rule is that dismissal of an infringement action in toto is in order if the District Court has found on adequate evidence all the elements of an estoppel. Whether the District Court correctly dismissed this case and granted judgment absolute in favor of GE depends on whether, under the District Court’s findings, the elements of an estoppel were properly established.
There can be no dispute that Olympia has been guilty of unreasonable and inexcusable delay. Moreover, the District Court found — -largely on Olympia’s own evidence — that Olympia had in a very unmistakable way abandoned its patent. The evidence cited by the District Court showed that Olympia made no effort to assert or use its patent either in manufacture of its printer or in licensing others after about 1963. All of this was a matter of public record. GE knew of Olympia’s patent but it regarded it as invalid on the basis of its patent attorney’s opinion. It also undoubtedly knew of the steps Olympia had taken to abandon it. Later, when GE had completed its development of its patent and had begun to exploit the patent, it made a complete disclosure of its patent to Olympia and the latter’s parent corporation. Olympia asserted no claim of infringement at the time. On the contrary, it entered into negotiations with GE with reference to a license to manufacture under GE’s patent. After these negotiations had gone on for more than a year, Olympia decided against taking a license under GE’s patent not because it thought its patent was being infringed and wished to assert such claim but because it doubted the economic feasibility of such a venture. Subsequently, GE made an improvement to its patent. When Olympia learned of this, it reopened the negotiations for a license under GE’s patent. To assist Olympia in determining whether to take such a license, GE at Olympia’s request, sent one of its patented machines to Olympia for review by Olympia’s engineers in 1971. There was no suggestion on Olympia’s part of a claim of infringement, though it did, after some further discussion, again determine, on economic feasibility grounds, not to take a license. It was, however, almost four years after all this that Olympia first intimated that it might claim infringement.
In the period from 1967 to 1974, when Olympia first claimed infringement, GE had engaged at great expense in an aggressive program of exploitation of its patent. It built a plant for the construction of its patented machine. It developed a marketing organization. Its investments ran into many millions of dollars. It experienced considerable success with its patent. All of this was well known to Olympia. All of these facts are incorporated in the findings of fact made by the District Court.
What the findings of fact as made herein by the District Court establish is the classic case of an estoppel. The conclusion seems compelled that the conduct of Olympia, as found by the District Court, justified “an inference of abandonment of the patent claim and of a finding that Olympia had induced [GE] to believe that its business [in manufacturing and marketing its printer] would be unmolested.” Further, the District Court found that GE had made “substantial investments in its business ... and its business [had] grown extensively.” That was a sufficient finding of the prejudice required for an estoppel. On those findings, the District Court did not err in dismissing “in toto” Olympia’s action, whether we assume that, by the relief granted, it implicitly did so under the rubric of an estoppel or that it actually ruled an estoppel under the “label laches.”
The judgment of the District Court is accordingly affirmed.
. Olympia is a wholly-owned subsidiary of All-gemeine Elektricitaets-Gesellschaft AEG-TELEFUNKEN (AEG).
. Olympia Werke Aktiengesellschaft v. General Elec., 470 F.Supp. 966, 968 (W.D.Va.1979).
. Olympia Werke Aktiengesellschaft v. General Elec., 545 F.Supp. 598 (W.D.Va.1982).
. See Continental Coatings Corporation v. Metco., Inc., 464 F.2d 1375, 1380 (7th Cir.1972) (“... an estoppel defense ... under the laches label ....)
. See Advanced Hydraulics, Inc. v. Otis Elevator Company, 525 F.2d 477, 479 (7th Cir.1975), cert. denied, 423 U.S. 869, 96 S.Ct. 132, 46 L.Ed.2d 99 (... the Infringement suit must fail “in toto____”).
. There is some discussion by Olympia on the exact delay chargeable against it under the plea of laches. It agrees with the District Court’s finding that the commencement date for the calculation of the delay was the date of Olympia’s imputed knowledge of infringement by GE dated October 4, 1968. It would however fault the District Court’s finding of the date on which the calculation under the statute should end. The District Court found this ending date to be April 19, 1977, when suit was begun. It is Olympia’s position, however, that such ending date was properly October 21, 1974, when allegedly good faith settlement negotiations began. It cites Mogavero v. McLucas, 543 F.2d 1081,1083 (4th Cir.1976) for this position. It is unnecessary, however, to pursue this argument because, as the District Court held, the six-year statutory period was exceeded even if the termination date urged by Olympia is accepted and Olympia seems not to dispute this fact.
. See also, Studiengesellschaft Kohle v. Eastman Kodak Co., 616 F.2d 1315, 1326 (5th Cir. 1980).
In this case the Court said that, in order to prove laches, “two elements must be established: (1) that the delay was unreasonable or inexcusable; that the defendant has suffered injury or prejudice as a result of the delay.”
. In all of the other cases cited, the defendant had stated its defense in terms of laches and the parties had tried the cause seemingly on that basis. Thus, in Naxon, the Court began its discussion of the District Court’s decision by observing that “both parties characterized ‘defendants’ principal patent infringement defense as one of laches rather than estoppel’ ”, 686 F.2d at 1261, but the Court affirmed the grant of “summary judgment in favor of Bunker Ramo on estoppel grounds”, 686 F.2d at 1267. In Jensen, the defendant also stated its defense as in laches and the District Court dismissed the “infringement action due to laches.” The Court, however, remanded, saying (650 F.2d at 167):
“... The finding of laches is fully supported and we affirm the dismissal of Jensen’s claim for past damages. In order, however, to support a dismissal of Jensen’s request for prospective relief, there must have been an additional showing of conduct by the patentee justifying reliance, by the alleged infringers, on the assumption that Jensen did not intend to enforce his patent against them. The court below did not consider whether the defendants-appellees made such a showing of estoppel in this case. We remand the matter for a determination of whether Jensen should be estopped from receiving prospective relief.”
Studiengesellschal't Kohle v. Eastman Kodak Co., 616 F.2d 1315 (5th Cir.1980) is another case in which the defendant relied only on laches. Even though this was the plea, the Court on appeal examined the record both for laches and estoppel. Citing Continental Coatings, however, the Court dismissed estoppel as a defense, because it could “find no misleading conduct by SGK” in that the patentee had not “made representations or engaged in conduct which justifies an inference of abandonment of the patent claim or which has induced the infringer to believe that its business would be unmolested.” 616 F.2d at 1330. In other words, the Court recognized the rule that the Court would look to the findings of fact to determine whether the record established estoppel but found that facts sufficient for such finding did not exist in this case.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case?
A. agriculture
B. mining
C. construction
D. manufacturing
E. transportation
F. trade
G. financial institution
H. utilities
I. other
J. unclear
Answer:
|
songer_r_fed
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
UNITED STATES of America, Plaintiff-Appellee, v. Maurice Robert CARTER, Defendant-Appellant.
No. 79-5282
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
Oct. 5, 1979.
Rehearing Denied Nov. 5, 1979.
George L. Clapham, Orlando, Fla., for defendant-appellant.
Kendell W. Wherry, Asst. U. S. Atty., Orlando, Fla., for plaintiff-appellee.
Before AINSWORTH, GODBOLD and VANCE, Circuit Judges.
Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I.
AINSWORTH, Circuit Judge:
Defendant-appellant Maurice Robert Carter was convicted after a jury trial of conspiracy to import marijuana in violation of 21 U.S.C. §§ 952(a) and 963. Before trial Carter moved to dismiss the indictment pursuant to Federal Rule of Criminal Procedure 48(b) and the Sixth Amendment of the Bill of Rights for deprivation of his right to a speedy trial. After hearing testimony the district court concluded that the delay in bringing defendant to trial was due to defendant’s departure from the state where the indictment was returned and further to the limited efforts of the Drug Enforcement Agency and the Florida authorities to locate him. Since the court also found that Carter had failed to show any prejudice as a result of the delay, it denied his motion to dismiss. At trial upon conclusion of the Government’s case and again at the close of the trial, the district court denied Carter’s motions for judgment of acquittal for lack of sufficient evidence to convict the defendant of conspiracy to import marijuana. We agree with the district court’s rulings and affirm the conviction.
At trial, the Government offered evidence to show that in February 1976, John Leslie Head approached Daniel C. Wagner, owner of a charter service, to inspect one of Wagner’s boats. Head then offered Wagner $10,000 to use the Sirenia, a retired 83-foot Coast Guard patrol boat, to import marijuana from the Bahamas. Wagner accepted the offer, and after Head had left, Wagner contacted the Florida Department of Law Enforcement, which arranged with Wagner to record telephone conversations with Head concerning the proposed plan. Shortly after that time, Head loaned Wagner $2,500 to overhaul the Sirenia in preparation for the trip. In April 1976 a man who did not identify himself by name boarded Wagner’s boat and discussed the $2,500 loan as well as details of the money to be paid to Wagner and his crew to transport the marijuana. He also inspected the boat and told Wagner “they” would be back in touch with him. Wagner identified this man at the trial as the defendant Carter. In May the Sirenia was involved in a marine casualty and as a result was a total loss. Wagner agreed with Head to locate another vessel and arrangements were made to use a boat owned by Keith Heuer, a friend of Wagner. A listening device was installed in the boat and it was delivered to friends of Head. In July the vessel was seized in Miami, and eight bales of marijuana were found on board.
The Government also introduced a tape recording of a telephone conversation between Head and Wagner during which Head asked Wagner if Carter had been by to see him. This conversation allegedly took place in July 1976. Finally, in November of that year, Wagner and Heuer, who had known Carter since about 1975, saw the defendant in a bar. Heuer testified that Carter came up to him on that occasion and told him to warn Wagner to keep quiet about the marijuana deal.
On November 27,1978, Carter was arrested pursuant to a one-count indictment on September 15,1977, by a federal grand jury at Orlando, Florida. At the hearing on January 8, 1979, in support of his motion to dismiss the indictment for lack of a speedy trial, defendant contended that although he had left Florida sometime in early 1977, he had been living openly in Virginia during the 14-month period between his indictment and his arrest and had returned to Florida six times between February 1977 and November 1978. He alleges that he was prejudiced by the delay between indictment and arrest because the principal co-conspirator John Head was tried during that period and another coconspirator George Bowers pleaded guilty, and Carter did not have the benefit of being present at either of these proceedings. At the hearing Carter testified that about six months following his departure from Florida, his former wife Catherine Carter, who still maintains a residence in Florida, notified him that he was charged in an indictment along with John Head. The defendant upon receipt of that information made no effort to contact the Florida authorities or to surrender himself to federal officers. Following Carter’s indictment, agents of the Florida Department of Law Enforcement, in an effort to locate the defendant, contacted Mrs. Carter and periodically observed Carter’s former Florida residence. It was not until 14 months following the indictment, however, that an arrest was made.
Appellant contends that he was thus deprived of his right to a speedy trial though he failed to proffer any specific evidence of prejudice to his defense or to his personal rights. In Barker v. Wingo, 407 U.S. 514, 530-33, 92 S.Ct. 2182, 2192-93, 33 L.Ed.2d 101 (1972), the Supreme Court enunciated four factors to be considered in making a determination whether there has been a denial of a speedy trial: length of delay, reason for delay, whether defendant asserted his right to speedy trial, and whether he has suffered prejudice as a result of the delay. See United States v. Edwards, 5 Cir., 577 F.2d 883, 888, cert. denied, 439 U.S. 968, 99 S.Ct. 458, 58 L.Ed.2d 427 (1978). Almost 16 months elapsed between Carter’s indictment and his trial. Unless this period of time is found to be “presumptively prejudicial,” it is unnecessary to consider the other factors. United States v. Edwards, supra, 577 F.2d at 888. In Edwards, a 21-month period was held to be presumptively prejudicial where there were no complex factual and legal issues. This court also found that a 15-month delay in a complex conspiracy case was sufficiently lengthy to require consideration of the other factors. United States v. Avalos, 5 Cir., 1976, 541 F.2d 1100, 1108, cert. denied, 430 U.S. 970, 97 S.Ct. 1656, 52 L.Ed.2d 363 (1977). We can assume, therefore, that the 16-month delay here is substantial enough to suggest inquiry into the other factors. The delay itself, however, is not sufficient to warrant a finding that the defendant has been denied his Sixth Amendment right. United States v. Edwards, supra, 577 F.2d at 888; United States v. Garza, 5 Cir., 1977, 547 F.2d 1234, 1235.
To determine whether a defendant’s right to a speedy trial has been violated, the conduct of the Government must be weighed against the conduct of the defendant. Barker v. Wingo, supra, 407 U.S. at 430, 92 S.Ct. at 2191-92. Here, the district court found the reasons for the delay to be a result of Carter’s deliberate disappearance from Florida and the limited efforts of the law enforcement officials to locate Carter. Though a purposeful attempt to delay the trial to prejudice the defendant or to gain a tactical advantage for itself should weigh heavily against the Government, Barker v. Wingo, supra, 407 U.S. at 531, 92 S.Ct. at 2192, a more neutral reason, such as negligence, does not necessarily tip the scale in favor of the defendant, particularly where the defendant was at liberty and outside the jurisdiction where the indictment was returned. United States v. Walters, 5 Cir., 1979, 591 F.2d 1195, 1201.
It is important to note that Carter failed to assert his right to a speedy trial. Though the Barker decision left uncertain the extent of the defendant’s burden in this respect, see 407 U.S. at 527, 531-32, 92 S.Ct. at 2190, 2192-93, Carter’s pretrial silence is a factor which should be weighed in favor of the Government. United States v. Edwards, supra, 577 F.2d at 887; United States v. Garza, supra, 547 F.2d at 1235. On balance, therefore, we conclude that Carter was not deprived of the right to a speedy trial in violation of the Sixth Amendment and that denial of defendant’s motion to dismiss for failure to afford a speedy trial did not constitute an abuse of discretion requiring dismissal pursuant to Rule 48(b) of the Federal Rules of Criminal Procedure.
With regard to appellant’s argument that the Government failed to introduce sufficient evidence to support a conviction of conspiracy, viewed in a light most favorable to the Government, the three incidents of Carter’s involvement presented at trial provide substantial evidence to establish beyond a reasonable doubt that a conspiracy existed and that Carter had the requisite knowledge and intent to join the conspiracy. See United States v. Malatesta, 5 Cir., 1979, 590 F.2d 1379, 1381; United States v. Soto, 5 Cir., 1979, 591 F.2d 1091, 1101 (petition for cert. filed). Finally, in answer to appellant’s argument that the Government failed to prove that Carter’s visit to the Sirenia was related to the actual boat used to transport the marijuana, we note that under 21 U.S.C. § 963, no overt act is required for conviction of conspiracy, and “it is immaterial that [the defendant] may not have been privy to the details of each aspect of the operation; it is enough that he was aware of the conspiracy’s general purpose and scope.” United States v. Bates, 5 Cir., 1979, 600 F.2d 505, 509.
AFFIRMED.
. Carter alleges that “it can be assumed that witnesses who might have been available during the fourteen month period can no longer be found,” and that he has, therefore, suffered prejudice in his defense. In the absence of any specific showing of prejudice, no such assumption is warranted.
. Carter’s right to a speedy trial based on the Sixth Amendment was triggered by his indictment since it preceded his arrest. See Dillingham v. United States, 423 U.S. 64, 65, 96 S.Ct. 303, 303, 46 L.Ed.2d 205 (1975). Had his contention been made under the Speedy Trial Act, 18 U.S.C. §§ 3161-3174, there likewise would be no violation. Under this Act, the time period does not begin to run until defendant has been indicted or has been “ordered held to answer and has appeared before a judicial officer of the court . . whichever date last occurs.” The Act requires that defendant be arraigned within ten days and brought to trial within another sixty days. Since Carter was arrested November 27, arraigned December 5, and tried January 8, the Act was fully complied with.
. 577 F.2d at 888; see also United States v. Walters, 5 Cir., 1979, 591 F.2d 1195, 2101.
. Hamling v. United States, 418 U.S. 87, 124, 94 S.Ct. 2887, 2911, 41 L.Ed.2d 590 (1974).
. As noted earlier, Carter discussed plans for the boat and payment of the crew with Wagner, he was mentioned in a conversation between Head and Wagner, and he threatened Wagner.
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
|
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.
SILK v. UNITED STATES. MEEK v. SAME.
Circuit Court of Appeals. Eighth Circuit.
April 12, 1927.
Nos. 7359, 7360.
Criminal law <@=31186(1) — Error; requiring reversal of conviction of one of two conspirators, carries reversal as to the other.
Where the conspiracy is limited to two defendants, error, requiring reversal as to one of them, carries with it a reversal as to the other.
In Error to the District Court of the United States for the District of Nebraska; Joseph W. Woodrough, Judge.
On petition for rehearing. Modified.
For former opinion, see 16 F.(2d) 568.
Arthur F. Mullen, of Omaha, Neb., for plaintiff in error Silk.
George A. Keyser, Asst. U. S. Atty., of Omaha, Neb. (James C. Kinsler, U. S. Atty., Ambrose C. Epperson, Asst. U. S. Atty., and Andrew C. Scott, Asst. U. S. Atty., all of Omaha, Neb., on the brief), for the United States.
Before VAN VALKENBÜRGH and BOOTH, Circuit Judges, and PHILLIPS, District Judge.
PHILLIPS, District Judge.
Silk and Meek were jointly charged by indictment containing seven counts. The first count charged them with a conspiracy to violate the Rational Prohibition Act (Comp. St. § 1013814 et seq.). The second, fourth, and sixth charged them with unlawful transportation of intoxicating liquor. The third, fifth, and seventh charged them with unlawful sale of intoxicating liquor. Meek was found guilty upon counts 1, 2, 3, 4, and 6. Silk was found guilty'upon counts 1, 5, and 7. In our former opinion, we directed that the judgment be affirmed as to Silk on counts 1, 5, and 7, and reversed as to Meek upon counts 1, 2, 3, 4, and 6. Silk has filed a petition for rehearing.
While the indictment charged a conspiracy between Silk, Meek, and other persons to the grand jurors unknown, a re-examination of the record convinces us that the proof supported the charge only as to Silk and Meek. It follows that we erred in affirming the judgment upon count 1 as to Silk and reversing it as to Meek, for the reason that, where the conspiracy is limited to two defendants, error requiring the reversal as to one of them carries with it a reversal as to the other. Morrow v. U. S. (C. C. A. 8) 11 F.(2d) 256, 260; Turinetti v. U. S. (C. C. A. 8) 2 F.(2d) 15.
We have examined the other contentions made in the petition for rehearing and find they are without merit.
The former opinion is therefore modified, to the extent of directing that the judgment as to Silk upon count 1 be reversed and remanded, with instructions to grant him a new trial on count'1. It is so ordered.
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_stpolicy
|
A
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the interpretation of state or local law, executive order, administrative regulation, doctrine, or rule of procedure by the court favor the appellant?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
In re McCRORY STORES CORPORATION et al. COOPER v. IRVING TRUST CO. et al.
No. 456.
Circuit Court of Appeals, Second Circuit.
July 12, 1937.
Ernst, Gale, Bernays & Falk, of New York City (Murray C. Bernays and George G. Ernst, both of New York City, of counsel), for appellant.
Charles Rosenbaum, of New York City (Charles Rosenbaum and Maurice Cellar, both of New York City, of counsel), for appellees 57 Specific Creditors of McCrory Stores Corporation.
Stanchficld & Levy, of New York City (David S. Hecht, of New York City, of counsel), for appellee Hallgarten & Co.
Before L. HAND, AUGUSTUS N. HAND, and CHASE, Circuit Judges.
Writ of certiorari denied 58 S.Ct. 46. 82 L.Ed. —.
AUGUSTUS N. HAND, Circuit Judge.
This appeal tests the power of the judge in charge of a proceeding for the reorganization of McCrory Stores Corporation under section 77B of the Bankruptcy Act (11 U.S.C.A. § 207) to revise the terms of a contingent fee retainer of the appellant Irving Ben Cooper and fix his fee at $35,-000 on the ground that this sum was reasonable compensation for the services rendered. In our opinion he had such power under the terms of section 77B and his order thus fixing compensation should be affirmed.
McCrory Stores Corporation was adjudicated bankrupt on January 14, 1933, and its subsidiary corporations were so adjudicated on January 31, 1933. By order of February 2, 1933, these bankruptcy proceedings were consolidated and were thereafter conducted as a single proceeding.
At a meeting of creditors held on January 28, 1933, a committee known as the Wiley Committee was appointed and the need of retaining counsel was discussed. The following day the committee selected Mr. Cooper, with the approval of a large number of the creditors, under an arrangement by which he was to receive $25,000 and a percentage of the claims represented by the Wiley Committee. The arrangement was.embodied in a letter by the committee to Cooper dated February 8, 1933, whereby it agreed to pay him for services rendered and to be rendered to the committee the sum of $25,000 and in addition 10 per cent, of any dividends to be paid to the creditors whom it represented whether payable “in the bankruptcy proceeding or as a settlement pursuant to a compromise offered by the bankrupt and confirmed by the court or otherwise,” the retainer and contingent fee to cover all services to be rendered by Cooper and other attorneys engaged by him. The $25,000 was fully paid at the time the foregoing written retainer was delivered. On July 5, 1934, petitions for reorganization of McCrory Stores Corporation and its subsidiaries were approved by the District Court, and in December, 1935, a plan of reorganization was approved which provided for payment to the unsecured creditors (a large number of whom the Wiley Committee represented) of the . full amount of their claims, together with about 19 per cent, interest. Mr. Cooper and his legal associates rendered services on behalf of these creditors from the end of January, 1933, until the plan of reorganization was carried out in May, 1936. The aggregate amount which they would have received under the contingent retainer would have been upwards of $84,000, instead of the $35,000 which was allowed by the District Judge.
The creditors1 represented by the Wiley Committee executed and delivered to the committee powers of attorney appointing the committee and each of them attorneys in fact, and “authorizing them and each of them to attend any and all meetings of creditors * * * of the bankrupt in any court of bankruptcy or before any referee in bankruptcy, and for said claimant anid in the name of said claimant to vote for or against any proposal or resolution that may be submitted in reference to the estate of the ’ * * * bankrupt and in the choice of trustee or trustees and for said claimant to appoint such trustee or trustees. To accept or refuse any composition in or out of bankruptcy proposed by said bankrupt. To receive and collect any payments of dividends or fees or monies due said claimant under any compositions or otherwise and in general to take such action and do such acts, execute such consents and documents for such claimant as said attorney may deem best, as fully as such claimant could do if personally present.”
It is impossible to suppose that a creditors’ committee concerned with such a substantial insolvency or reorganization of a system of chain stores could properly act without legal counsel, and it is entirely unreasonable to suppose that the committee was expected to defray the expense of counsel personally. We inevitably conclude that the power of the committee to employ counsel on behalf of the creditors whom it represented was implicit in the broad powers given above. Inasmuch as the committee was authorized to employ counsel and, under the powers of attorney, was to collect the claims and had agreed to pay 10 per cent, out of any dividends, which it received, as Cooper’s contingent fee, the latter acquired a contractual lien. Barnes v. Alexander, 232 U.S. 117, 34 S.Ct. 276, 58 L.Ed. 530; Ingersoll v. Coram, 211 U.S. 335, 365-368, 29 S.Ct. 92, 53 L.Ed. 208; Wylie v. Coxe, 15 How. 415, 419, 14 L.Ed. 753. Whether the section 77B judge had power to reduce the amount of this lien and fix Mr. Cooper’s compensation at $35,000 is the question raised by this appeal.
Judge Patterson, who made the order, held that under subdivision (b) (10) of section 77B “the duty is laid on the court to see to it that the amount to be received by counsel is no more than commensurate, to the services rendered.” Had the reorganization been less successful, he might well have thought the full 10 per cent, could fairly be paid, but believing as he did that the agreement was not binding on the court if the compensation under it would result in more than a quantum meruit, he reduced it accordingly. Subdivision (b) (10), among other things, provides that: “For all purposes of this section any creditor may act in person, by an attorney at law, or by a duly authorized agent or committee: Provided, That the judge shall scrutinize and may disregard any limitations or provisions of any depositary agreements, trust indentures, committee or other authorizations affecting any creditor acting under this section and may enforce an ac-‘ counting thereunder or restrain the exercise of any power which he finds to be unfair or not consistent with public policy and may limit any claims filed by such committee member or agent, to the actual consideration paid therefor.”
In subdivision (c) (9) it is further provided that the judge “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 * * * and the attorneys or agents of any of the foregoing and of the debtor.”
It is argued by counsel for the appellant that the “scrutiny clause” cannot affect relations between attorneys for creditors and their clients, or agreements between them for compensation. We confess that the reasoning seems to us unconvincing. The Wiley Committee employed Cooper and, while it did so on behalf of the creditors as principals, the implied power to employ counsel that was inherent in the powers of attorney running to the committee was an “authorization affecting” the creditors, the exercise of which, if found to be “unfair,” might under the “scrutiny clause” (subdivision (b) (10), supra) be restrained or limited by the judge. That clause authorized him to restrain the committee from proceeding under the contingent fee agreement after the reorganization petition was filed and also authorized him to restrain any further performance. By the New York law, under which the contract of employment was entered into, a client may discharge his attorney at any stage of his employment, provided only the latter remains entitled to a quantum meruit for services already performed. This is true not only in general but even in cases where a retainer is contingent. A discharge of the attorney is not a breach of contract that subjects the client to damages. As was said in Martin v. Camp, 219 N.Y. 170, at page 174, 114 N.E. 46, 48, L.R.A.1917F, 402: “That the client may at any time for any reason or without any reason discharge his attorney is a firmly established rule which springs from the personal and confidential nature of the relation which such a contract of employment calls into existence. Matter of Dunn, 205 N.Y. 398, 98 N.E. 914, Ann.Cas.1913E, 536. If the client has the right to terminate the relationship of attorney and client at any time without cause, it follows as a corollary that the client cannot be compelled to pay damages for exercising a right which is an implied condition of the contract. If in such a case the client can be compelled to pay damages to his attorney for the breach of the contract, the contract under which a client employs an attorney would not differ from the ordinary contract of employment. In such a case the attorney may recover the reasonable value of the services which he has rendered, but he cannot recover for damages for the breach of contract.”
In Application of Krooks, 257 N.Y. 329, 178 N.E. 548, the above rule was applied to a contract to pay a contingent fee for legal services to be rendered in connection with a condemnation proceeding. The attorney was discharged before the services were completed and was allowed a quantum meruit. The court said (257 N.Y. 329, at page 332, 178 N.E. 548, 550): “The contract has been canceled and its terms cannot establish the standard for compensation.” See also, to the same effect, In re Tillman, 259 N.Y. 133, 181 N.E. 75.
We think the “scrutiny clause” of section 77B (b) (10) in substance does no more than to authorize the judge to do what Mr. Cooper’s clients themselves might have done under the New York law. They might have discharged him at the eleventh hour and thus limited his compensation to a quantum meruit in no way measured by the terms of the contingent fee agreement. If he chose to go on and render services and apply for compensation in the section 77B proceeding in which subdivisions (c) (9) and (b) (10) regulated the compensation, he continued his work subject to the right and duty of the judge to allow out of the assets of the estate only “a reasonable compensation for the services rendered.” Under such circumstances it is impossible to raise successful objections to the reduction of the amount of the attorney’s lien on the ground that the reduction deprived him of property without due process of law. The contract rights of an attorney to a promised fee differ fundamentally from those of other contract creditors. As we have pointed out, they are subject to termination if the client wishes at any stage to dispense with his services. Congress would certainly seem to have a similar right to authorize the court in bankruptcy proceedings to allow attorneys only reasonable compensation out of estate funds belonging to their clients and to subject arrangements for attorneys’ fees to judicial scrutiny and supervision. We feel no doubt that the judicial power of review applies to compensation for services rendered both during the bankruptcy and the section 77B proceedings. We think that in the case at bar it cannot matter that the services were completed before the petition to have compensation awarded was filed. When Mr. Cooper continued to perform services in the reorganization proceeding he necessarily acted subject to the power of the judge to terminate his contract. He stands in no better position than otherwise merely because objection to his receiving the 10 per cent, provided for under the terms of his contract with the Wiley Committee was made at the twelfth rather than the eleventh hour.
Order affirmed.
Question: Did the interpretation of state or local law, executive order, administrative regulation, doctrine, or rule of procedure by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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songer_respond1_1_3
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I
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case.
PORTER v. SHIBE et al. SAME v. DARLINGTON, Inc., et al.
Nos. 3393, 3403.
Circuit Court of Appeals, Tenth Circuit.
Nov. 5, 1946.
Irving M. Gruber, Chief, Gen. Litigation Branch, of Washington, D. C. (George Moncharsh, Dep. Admin, for Enforcement, David London, Director, Litigation Div., Leanora S. Gruber, Atty., Jacob W. Rosenthal, Atty., Office of Price Administration, all of Washington, D. C., Max D. Melville and William W. McNeill, Regional Litigation Attys., both of Denver, Colo., Office of Price Administration, and Glen V. Graf, Atty., of Kansas City, Mo., Office of Price Administration, on the brief), for appellant.
Paul L. Thomas and Walter G. Klamm both of Kansas City, Kan., for appellees Agnes and Arthur Shibe.
Victor A. Miller, of Denver, Colo., for appellees Darlington, Inc., and others.
Before PHILLIPS, HUXMAN, and MURRAH, Circuit Judges.
PHILLIPS, Circuit Judge.
In No. 3393 the facts are these:
The Shibes are the owners of premises, commonly known as 1412 Freeman Avenue, Kansas City, Kansas. A two-room apartment on the first floor of such premises was occupied by A. Miller and his wife, as tenants from week to week. On July 9, 1946, Arthur Shibe personally served upon Miller a written notice „to terminate the tenancy on July 22, 1946. The rent was due on that date. The Millers did not vacate the premises. On July 27, 1946, the Shibes served upon Miller a three-day notice, in compliance with the laws of Kansas, that a peaceable entry and forcible detainer action would be filed against them. On August 1, 1946, the Shibes filed such action against the Millers in the City Court of Kansas City, Kansas. The cause came on for trial on August 7, 1946. Both the Shibes and Millers were represented by counsel at the trial, and John Clark, Junior Area Rent Attorney for the Office of Price Administration, appeared in behalf of the Area Rent Office. The City Court found that the Shibes had complied with the laws of Kansas, and that under such laws the Shibes were entitled to possession, and entered a judgment awarding them possession.
Thereafter, the Office of Price Administration instituted proceedings in the United States District Court for the District of Kansas, seeking an injunction against the Shibes’ evicting the Millers from the apartment. The trial court denied the preliminary injunction. A judge of this court granted a temporary restraining order. The Administrator appealed from the order denying the temporary injunction.
In No. 3403 the facts are these:
The Darlington, Inc., is the owner of the Darlington Apartment Building situated in Denver, Colorado. Prior to June 30, 1946, C. B. King and his wife were tenants in an apartment in the building. The maximum rent for the apartment was $40 per month, which included the furnishing of cooking gas by the landlord. On July 5, 1946, Darlington served a notice on the tenants terminating the rental agreement on July 15, 1946, and demanding that the tenants leave the premises on. or before that date. The rental agreement contained the following provision: “Tenant agrees that upon failure to vacate in due time, upon rightful and legal notice from the Owner so to do, or upon abandonment, or in order to take possession of property above liened, Owner or its agent may reenter and take possession without suit, using such force as may be necessary for that purpose without liability, and without impairing any security or present or future right of action held by Owner for rent.”
Under Colorado law, where a lease contains such a provision, the landlord may enter and remove the tenant upon covenant broken if he uses no unnecessary force to accomplish the purpose. Representatives of Darlington undertook.to evict the Kings upon the expiration of the notice period. King physically resisted eviction. On the morning of July 25, 1946, the maintenance man for Darlington found the valve in the gas line to the apartment leaking and in need of repairs, and turned off the gas. On August 6, 1946, the Administrator brought this action for a mandatory injunction restraining Darlington from decreasing or eliminating the services provided on the date determining the maximum rent applicable to the apartment and from removing or attempting to remove the Kings from the apartment. A temporary restraining order requiring Darlington to restore the gas service was issued on August 9, 1946, and pursuant thereto Darling-ton turned the gas on again. The restraining order was vacated and a preliminary injunction denied on August 20. Darling-ton, however, agreed to allow the gas to remain on until the decision on this appeal. The Administrator has appealed from the order denying the preliminary injunction.
The Emergency Price Control Act of 1942, 50 U.S.C.A.Appendix, § 901 et seq., expired on June 30, 1946. By Public Law 548, approved July 25, 1946, it was extended to June 30, 1947. Section 18 of that Act in part provides: “Sec. 18. (1) The provision of this Act shall take as effect of June 30, 1946, and (2) • all regulations, orders, price schedules, and requirements under the Emergency Price Control Act of 1942, as amended * * * and the Stabilization Act of 1942, as amended, which were in effect on June 30, 1946, shall be in effect in the same manner and to the same extent as if this Act had been enacted on June 30, 1946, * * *: Provided further, That no act or transaction, or omission or failure to act, occurring subsequent to June 30, 1946, and prior to the date of enactment of this Act shall be deemed to be a violation of the Emergency Price Control Act of 1942, as amended, or the stabilization Act of 1942, as amended, or of any regulation, order, price schedule, or requirement under either of such Acts: * * 50 U.S.C.A.Appendix, § 901a note.
It is clear from this section that Congress intended to make such Acts, and the Regulations which had been promulgated thereunder, retroactive to June 30, 1946, with the proviso that there should be no civil or criminal liability for any act, transaction, omission, or failure to act, occurring subsequent to June 30, 1946, and prior to July 25, 1946.
It is clear that in both cases, the tenants, in the interim between June 30, 1946, and July 25, 1946, lost their right to continue in the occupancy of the leased premises under their leases and under state law.
The applicable Regulations made effective from June 30, 1946, are set forth in the margin.
It will be observed that, under such Regulations, the landlord, where there is an immediate compelling necessity, may recover possession of the housing accommodations for use and occupancy as a dwelling for himself, and that a purchaser may acquire possession of the housing accommodations, and that the landlord may evict the tenant for failure to pay rent, for the tenant’s refusal of access to the landlord, for violation of an obligation of his tenancy, for the commission of nuisance by the tenant, or for permitting the housing accommodations to be used for an illegal or immoral purpose. .
The standard laid down by the Act is fair and equitable rent, and where the rent fixed is not fair and equitable, the landlord has administrative remedies open to him. We must assume, therefore, that the maximum rentals fixed for the housing accommodations here involved are fair and equitable.
Of course, we cannot pass on the validity of the Regulations per se. But we can pass on the validity of the Act of Congress which made 'the Regulations effective retroactively.
Thé Act of July 25, 1946, was enacted by the Congress in the exercisé of its war power. The war power is a broad and comprehensive grant. It is “well-nigh limitless.” It embraces those powers necessary to maintain our national defense and security. It is essential to the preservation of our country as an independent nation and the perpetuity of our liberties. While the war power is subject to the limitations of the Fifth Amendment, the courts must guard against impairing its essential attributes or endangering the ability of the nation to maintain its defense and security and its status as a' free and independent state.
Under the Regulations, unless the landlord seeks recovery of possession of the leased premises for use and occupancy as a dwelling for himself, ór a purchaser of the leased premises from the landlord seeks occupancy thereof for himself, the landlord must continue to rent to his former tenant although the latter’s lease has expired, his right to occupancy has expired, or he is subject to removal from the premises under state law, so long as the tenant pays the rent fixed by the Administrator and does none of the things affording ground for eviction under the provisions of the Regulations. Thus, it will be seen that the effect of the Regulations is to deprive the owner of the right of possession of the leased premises to which he would otherwise be entitled, except in case he desires possession for his own occupancy, or a purchaser thereof desires them for his own occupancy. For that deprivation, the Regulations provide for the payment of fair and equitable rent to the owner and afford protection to the owner’s interest against wrongful acts of the tenant.
We do not see any material difference in cases where the Regulations operate retrospectively and where they apply prospectively to a tenant whose lease has expired, or who has otherwise lost his right to occupancy under the terms of the lease or of state law. In either case, the question is whether the Regulations deprive the landlord of his right of possession without due process of law and without just compensation in violation of the Fifth Amendment.
For the use of the housing accommodation, fair and equitable rent is just compensation.
The due process guaranty of the Fifth Amendment demands only that the law shall not be unreasonable, arbitrary, or capricious, and that the means selected shall have a real and substantial relation to the object sought to be attained.
If the statute is an appropriate means to a permitted end, there is little scope for the operation of the due process clause.
The Regulations here involved adequately protect the landlord’s interests. They are not unreasonable, arbitrary, or capricious, and they have a real and substantial relation to the object sought to be attained, namely, the protection of the national defense and security by preventing inflation and its consequences, and the making of housing accommodations available in defense-rental areas at non-inflationary rentals.
Hence, we conclude that the Regulations do not deprive the landlord of his right of possession, without due process of law or without just compensation.
Rent Regulation § 3 in part reads; “ * * * every landlord shall, as a minimum, provide with housing accommodations the same essential services, * * * as those provided on the date determining the maximum rent, * *
May Darlington be required to restore the cooking gas service?
It is suggested by counsel in No. 3403 that, under Colorado law, Darlington might lawfully have removed the doors and windows in the apartment, or even have tom down the apartment during the period between June 30, and July 25, 1946, and had it done so, it could not now be constitutionally required to restore the leased premises. Obviously, a requirement that would involve substantial outlays by Dar-lington, and for which it would receive no compensation, differs materially from the situation here presented. The turning on of the gas involves merely the opening of a valve in the supply line and the cost thereof, if any, to Darlington would be trivial.
When applied to the facts here presented, to construe Regulation § 3 as applicable to a service discontinued between June 30, and July 25, 1946, would not, in our opinion, render the Act of July 25, 1946, unconstitutional.
A law is not unconstitutional merely because it results in financial injury to a citizen where it is reasonably necessary to preserve important public interests. Neither is it unconstitutional because it preserves one interest over another if there is a preponderant public concern in the preservation of the one over the other. Here, the important national interest is the making available to tenants of housing accommodations in important defense-rental areas at non-inflationary rentals in furtherance of the national defense and security.
Many of the lawful demands made on the citizen in the exercise of the war power result in financial loss to the citizen. Individual suffering and sacrifice are inevitable concomitants of war. Moreover, here the financial injury is nominal only and not substantial.
The causes, are reversed and' remand.ed, with instructions to vacate the orders denying injunctive relief and to proceed further in accordance with the views herein expressed.
Goshen v. People, 22 Colo. 270, 44 P. 503.
Sections 6(a) and (b) of the Rent Regulations, which were made retroactive by the Act of July 25, 1946, in part provide:
“§ 6. Removal of tenant — (a) Restrictions on removal of tenant. So long as the tenant continues to pay the rent to which the landlord is entitled, no tenant shall be removed fi’om any housing accommodations, by action to evict or to recover possession, by exclusion from possession, or otherwise, nor shall any person attempt such removal or exclusion from possession, notwithstanding that such tenant has no lease or that his lease or other rental agreement has expired or otherwise terminated, * * * unless:
“(1) Tenant’s refusal to renew lease. The tenant, who had a written lease or other written rental agreement, has refused upon demand of the landlord to execute a written extension or renewal thereof for a further term of like duration, or if the lease was for a term of less than one year but more than three months and was non-seasonal in character, for a term of not more than one year, for a rent not in excess of the maximum rent, but otherwise on the same terms and conditions as the previous lease or agreement, except insofar as such terms and conditions are inconsistent with this regulation; or
“(2) Tenant’s refusal of access to landlord,. The tenant has unreasonably refused the landlord’s access to the housing accommodations for the purpose of inspection or of showing the accommodations to a prospective purchaser, mortgagee, or prospective mortgagee, or other person having a legitimate interest therein: * * *
“(3) Violating obligation of tenancy or committing nuisance. The tenant (i) has violated a substantial obligation of his tenancy, other than an obligation to pay rent, and has continued, or failed to cure, such violation after written notice by the landlord that the violation cease, or (ii) is committing or permitting a nuisance or is using or permitting a use of the housing accommodations for an immoral or illegal purpose; * _ * *
“(6) Occupancy, by landlord. The landlord owned, or acquired an enforceable right to buy or the right to possession of, the housing accommodations prior to the effective date of regulation (or prior to October 20, 1942 where the effective date of regulation is prior to that date, * * *),' and has an immediate compelling necessity to recover possession of such accommodations for use and occupancy as a dwelling for himself, or has served during the period of the war emergency in the armed forces of the United States and in good faith seeks possession for his own occupancy. & * *
“(b) Administrator’s certificate — (1) Removals wot inconsistent icith Act or regulation. No tenant shall be removed or evicted on grounds other than those stated above unless, on petition of the landlord, the Administrator certifies that the landlord may pursue his remedies in accordance with the requirements of the local law. The Administrator shall so certify if the landlord establishes that removals or evictions of the character proposed are not inconsistent with the purposes of the Act or this regulation and would not be likely to result in the circumvention or evasion thereof. * * *
“(2) Occupancy by purchaser. A certificate shall be issued authorizing the pursuit of local remedies to remove or evict a tenant of the vendor, for occupancy by a purchaser who has acquired his rights in the housing accommodations on or after the effective date of regulation (or on or after October 20, 1942 where the effective date of regulation is prior to that date, * * *), only as provided in this paragraph (b) (2) * * * »
Lockerty v. Phillips, 319 U.S. 182, 187-189, 63 S.Ct. 1019, 87 L.Ed. 1339; Yakus v. United States, 321 U.S. 414, 429, 64 S.Ct. 660, 88 L.Ed. 834.
Case v. Bowles, 327 U.S. 92, 98, 66 S.Ct. 438; Yakus v. United States, 321 U.S. 414, 431, 64 S.Ct. 660, 88 L.Ed. 834.
See United States v. Macintosh, 283 U.S. 605, 622, 51 S.Ct. 570, 574, 75 L.Ed. 1302, where the court said: “From its very nature, the war power, when necessity calls for its exercise, tolerates no qualifications or limitations, unless found in the Constitution or in applicable principles of international law.- In the words of John Quincy Adams, — ‘This power is tremendous; it is strictly constitutional; but it breaks down every barrier so anxiously erected for the protection of liberty, property and of life.’ To the end that war may not result in defeat, freedom of speech may, by act of Congress, be curtailed or denied so that the morale of the people and the spirit of the army may not be broken by seditious utterances; freedom of the press curtailed to preserve our military plans and movements from the knowledge of the enemy; deserters and spies put to death without indictment or trial by jury; ships and supplies requisitioned; property of alien enemies, theretofore under the protection of the Constitution, seized without process and converted to the public use without compensation and without due process of law in the ordinary sense of that term; prices of food and other necessities of life fixed or regulated; railways taken over and operated by the government; and other drastic powers, wholly inadmissible in time of peace, exercised to meet the emergencies of war.”
Henderson v. Kimmel, D.C.Kan., 47 F.Supp. 635, 641; United States v. L. Cohen Grocery Co., 255 U.S. 81, 88, 41 S.Ct. 298, 65 L.Ed. 516, 14 A.L.R. 1045.
Nebbia v. People of State of New York, 291 U.S. 502, 525, 54 S.Ct. 505, 78 L.Ed. 940, 89 A.L.R. 1469; North American Co. v. Securities and Exchange Commission, 2 Cir., 133 F.2d 148, 154.
Virginian R. v. System Federation No. 40, 300 U.S. 515, 558, 57 S.Ct. 592, 81 L.Ed. 789.
Cf. People v. La Fetra, 230 N.Y. 429, 130 N.E. 601, 16 A.L.R. 152; Guttag v. Shatzkin, 230 N.Y. 647, 130 N.E. 929.
See Howe v. Frith, 43 Colo. 75, 95 P. 603, 605, 17 L.R.A.,N.S., 672, 127 Am.St.Rep. 79, 15 Ann.Cas. 1069; Cf. Page v. Yool, 28 Colo. 464, 65 P. 636.
Yakus v. United States, 321 U.S. 414, 439, 440, 64 S.Ct. 660, 88 L.Ed. 834; Miller v. Schoene, 276 U.S. 272, 279, 280.
See Henderson v. Kimmel, D.C.Kan., 47 F.Supp. 635, 642.
Henderson v. Kimmel, D.C.Kan., 47 F.Supp. 635, 643.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case?
A. agriculture
B. mining
C. construction
D. manufacturing
E. transportation
F. trade
G. financial institution
H. utilities
I. other
J. unclear
Answer:
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songer_casetyp1_1-3-1
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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 issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "criminal - federal offense".
UNITED STATES of America, Plaintiff-Appellee, v. Harry J. RYBICKI, Defendant-Appellant.
No. 18276.
United States Court of Appeals Sixth Circuit.
Nov. 22, 1968.
G. Franklin Miller, Cincinnati, Ohio, court appointed, for appellant.
James W. Eardley, Asst. U. S. Atty., Grand Rapids, Mich., for. appellee, Harold D. Beaton, U. S. Atty., Grand. Rapids, Mich., on the brief.
Before O’SULLIVAN and EDWARDS, Circuit Judges, and CECIL, Senior Circuit Judge.
O’SULLIVAN, Circuit Judge.
Harry J. Rybicki appeals from judgment entered on a jury verdict, convicting him of violating § 7212(a) of Title 26, U.S.C. The information charged that on February 13, 1967, Rybicki, by threats of force, obstructed two officers of the Internal Revenue Service who were then engaged in the performance of their duties, seeking to collect from him income tax owed by him to the United States. His grounds of appeal are that the government’s evidence was not sufficient to sustain the verdict, and that the District Judge erroneously failed to adequately instruct the jury as to the findings essential to a verdict of guilty.
We reverse on the second ground.
1) Sufficiency of evidence.
From the proofs introduced, the jury could find the following: Rybicki was indebted to the United States in the sum of $128.00 for additional income tax owed by him and his wife. He had discussed the matter with agents of the Internal Revenue Service between December, 1966, and February, 1967, and had promised to pay the delinquency, but failed to do so. On February 13, 1967, two officers of the Internal Revenue Service went to Rybicki’s home in a rural area near Grand Rapids, Michigan, with the intention of collecting the tax debt or, failing to obtain payment, of seizing a 1960 Oldsmobile and a 1966 Ford pickup truck owned by Rybicki, therefrom to satisfy the mentioned indebtedness.
We continue by quoting recitals of the government’s brief:
“At approximately 8:20 A.M. on February 12, 1967, Jesse and Forell went to the home of appellant and knocked at his door and received no response. The two vehicles in question were parked in the Rybicki driveway. After knocking for several minutes without success, Agent Jesse prepared certain warning tags and warning notices which he gave to Agent Forell to post on the two vehicles in question, and a Notice of Seizure, which he folded in thirds and inserted between the outer door and its jamb. Forell immediately posted the vehicle as having been seized by the Internal Revenue Service in satisfaction of a tax delinquency.
“Several minutes elapsed and another attempt was made to obtain recognition at the residence without success. The two officers thereupon determined to remove the two vehicles in question to a storage location. Forell backed a government-owned vehicle, in which he and Jesse had traveled to the Rybicki residence, out of the driveway and into the street, and Jesse got into the truck, found the keys thereto in the ignition, and began backing it out of the driveway into the street. Jesse then looked up and saw the appellant, Harry Rybicki, standing in the doorway of the Rybicki residence. It appeared to him that Rybicki was standing either in his pajamas or his underwear and that he was holding a double-barreled shotgun in his right hand at about hip level. Jesse observed that Rybicki was holding in his left hand a piece of paper which he concluded was the seizure notice that he had inserted between the door and the door jamb. Jesse stopped the truck, turned off the motor and got out and began to approach the house. He identified himself and Forell, stating, ‘We are with the United States Treasury Department.’ Rybicki’s reply was that he did not give a damn who Jesse and Forell were, he wanted them off his property and if they returned, he would give them a shot of hot lead. Frightened and intimidated, Jesse, together with Forell, who had gotten out of the government vehicle and had approached the house behind Jesse and who heard Jesse’s identifying comments and Rybicki’s reply thereto, left the Rybicki premises and went into Grand Rapids, Michigan, a distance of a few miles.”
Rybicki and his wife gave a different account of the relevant events. They said that their first knowledge of the activity of the Revenue Agents was when the wife heard the noise of the motor of the truck being moved by the agent. She aroused her sleeping husband and told him that somebody was backing his truck out of the yard. Rybicki describes his consequent conduct as follows:
“So I jumped out of bed and I run to the door and I hollered at them, and nobody answered. So I reached around to the gun rack and grabbed my gun and said, T told you to stop.’
“At that time, a fellow jumped out of the truck. So then he says to me, he said he was an Internal Revenue man. And I said, ‘Well, just a minute till I get some clothes on.’
“So I set the shotgun down, I went back into the house, got dressed, and I come back out and there was nobody around. The vehicles still set in the yard, but they were gone with their vehicle.”
It was undisputed that the Revenue Agents were in plain clothes and when Rybicki appeared at his door one of the officers said, “We are with the United States Treasury Department.”
Appellant asserts that to be guilty of the offense charged it was necessary that he know that the men who were in the act of moving his truck were officers of the Internal Revenue Service and were then acting in their official capacity. He charges that the evidence did not meet the government’s burden of proving such elements of the charged crime. We are of the opinion that, out of the conflicting accounts of the critical events, the jury, sole judges of the credibility of the witnesses could find that the government proved all elements of the crime. In testing the sufficiency of the case made by the government, the evidence is to be viewed in a light most favorable to it. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1941) ; United States v. Decker, 304 F.2d 702, 705 (6th Cir. 1962).
2) The Court’s instructions.
a) Knowledge as an essential to guilt.
The District Judge did not tell the jury that to be guilty of the charged offense, Rybicki had to know that the men were officers and were in the performance of their duties. Appellant’s brief asserts:
“The court did not even mention that Mr. Rybicki should know that they were officers. The charge was fatally deficient in that it did not require the jury to find that the defendant knew the men were federal agents, knew they were performing official duties, and intended to obstruct officers as such in the performance of their duties. The jury was charged as though the crime were a regulatory offence instead of a true crime requiring mens rea.”
The government resists the claim by asserting that knowledge by Rybicki that the Internal Revenue Agents were government officers performing official duties at the time of the alleged offense was not an essential element of the crime. We disagree.
To substantiate its argument in this regard, the government relies upon Mc-Nabb v. United States, 123 F.2d 848 (6th Cir. 1941); United States v. Wallace, 368 F.2d 537 (4th Cir. 1966), cert. denied, 386 U.S. 976, 87 S.Ct. 1169, 18 L.Ed.2d 136 (1967); United States v. Montanaro, 362 F.2d 527 (2nd Cir. 1966), cert. denied, 385 U.S. 920, 87 S.Ct. 233, 17 L.Ed. 2d 144 (1966); and United States v. Lombardozzi, 335 F.2d 414, 10 A.L.R.3d 826 (2nd Cir. 1964), cert. denied, 379 U.S. 914, 85 S.Ct. 261, 13 L.Ed.2d 185 (1964). These authorities may be distinguished from the case at bar by the fact that the offenses there involved would have been crimes regardless of the person against whom they were committed. In Montanaro, the defendant was stopped by federal officers while driving his car. In resisting arrest, he struck one of the officers with his car. This would have been a crime whether or not the pedestrian was an officer. In McNabb, a federal officer was killed under circumstances that would have resulted in a murder charge regardless of who was killed. Here, if the car “thief” had not been an officer acting in an official capacity, Rybicki would have had the right to threaten and use reasonable force to prevent the theft of his property.
In United States v. Chunn, 347 F.2d 717, 721 (1965), the Fourth Circuit stated,
“Concededly, there is a wide variance and lack of unanimity among the decisions as to whether scienter should be alleged and/or proved.”
The line of cases holding that scienter is required stems from Pettibone v. United States, 148 U.S. 197, 204-207, 13 S.Ct. 542, 37 L.Ed. 419 (1893). This Court followed and relied upon Pettibone in Sparks v. United States, 90 F.2d 61, 63 (6th Cir. 1937), where a deputy marshal attempted to execute a search warrant for seizure of counterfeit molds alleged to be on defendant’s premises. Defendant brandished an ax and prevented the officer from carrying on the search. On page 63 we said:
“On a trial for resisting an officer it must be shown that the person resisted was an officer, and that the accused was aware of that fact. Pettibone v. United States, 148 U.S. 197, 205, 13 S.Ct. 542, 37 L.Ed. 419.”
Sparks is analogous to the instant case in that the man searching for the molds would have no right to seize them from Sparks' premises and Sparks would have a right to prevent the seizure from his property unless the “searcher” was privileged by being an officer acting in the performance of his official duties. We are of the opinion that Pettibone v. United States, supra, and Morissette v. United States, 342 U.S. 246, 263, 273, 276, 72 S.Ct. 240, 96 L.Ed. 288 (1952) command a holding by us that an element of the crime charged to Rybicki was knowledge that the Internal Revenue agents were such and were engaged in performing their duty. We so hold,
b. Failure to request instructions.
Defendant’s trial counsel did not proffer an instruction that the discussed scienter was an element of the crime; neither did he make objection by pointing to its absence when given an opportunity to do so following the Court’s charge. The government accordingly asks us to employ Rule 30 F.R.Crim.P. to foreclose a relevant claim of error. We, moreover, may also employ Rule 52(b) to entertain the question if we are persuaded that substantial rights of Rybicki were affected by the lack of a charge on scienter.
Generally it is the duty of a District Judge to tell a jury what facts they must find before they can convict — that is, to instruct the jury as to the elements of the crime charged.
“It is well settled that appellant had a right to a correct statement of the law from the court. It is of course the duty of the court to explain the law of the case to the jury.” Thomas v. United States, 151 F.2d 183, 186 (6th Cir. 1945).
It is also generally true that such instructions must be given whether requested or not. Thomas, supra, intimates this, but even if this Circuit has not squarely announced such rule we recognize it to be of general acceptance. In United States v. Massiah, 307 F.2d 62 (1962), reversed on other grounds, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), Judge Hays, in concurring, said:
“In a criminal case, the defendant is entitled to have the jury instructed on all the elements that must be proved to establish the crime charged. United States v. Gillilan, 288 F.2d 796 (2d Cir.), cert. denied, Apex Distributing Co. v. United States, 368 U.S. 821, 82 S.Ct. 38, 7 L.Ed.2d 26 (1961); Kelley v. United States, 107 U.S.App.D.C. 122, 275 F.2d 10 (1960).
“In the present case, the appellants raised no objection to the charge as given, see Rule 30, Federal Rules of Criminal Procedure, but the omission to charge an element of the offense is ‘plain error’ see Rule 52(b), requiring reversal even if the point was not raised below. Screws v. United States, 325 U.S. 91, 107, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945); United States v. Levy, 153 F.2d 995, 998-999 (3d Cir. 1946); Williams v. United States, 76 U.S.App.D.C. 299, 131 F.2d 21 (1942). ‘In a criminal case a court should instruct on all essential questions of law involved in the case, whether requested or not.’ Kreiner v. United States, 11 F.2d 722, 731 (2d Cir.), cert. denied, 271 U.S. 688, 46 S.Ct. 639, 70 L.Ed. 1152 (1926); see Morris v. United States, 156 F.2d 525, 527, 169 A.L.R. 305 (9th Cir. 1946). In United States v. Noble, 155 F.2d 315 (1946), the Third Circuit stated the governing considerations:
‘We think it is self evident that a jury cannot perform its duty of determining the guilt or innocence of a defendant accused of a crime unless they know the essential elements of the crime which he is alleged to have committed. We think it equally self evident that the only appropriate source of that knowledge is the trial judge, whose traditional function has always included that of instructing the jury upon the law. It was because of the failure of the trial judge to give this necessary guidance to the jury that we recently reversed the judgment of conviction in United States v. Levy, 3 Cir., 1946, 153 F.2d 995. We deemed the error so fundamental that we took note of it even though the defendant had not requested the instructions.’ 155 F.2d at 316-317.”
Against this law we must consider whether the circumstances of this case call for exercise of our authority to reverse even though the missing instruction was not requested. We feel constrained to do so.
We read a colloquy which occurred early in the trial as defense counsel’s aborted effort to have scienter treated as an element in the case. Discussing the issues that would appear, the Court said:
“THE COURT: In other words, the only basic issue in this case is whether or not the defendant, by threats of force, obstructed and impeded the plaintiffs, the named persons, from performing their duties?
“MR. GERSCH [Counsel for defendant] : The Court indicated for purposes of instructions earlier?
“THE COURT: Yes.
“MR. GERSCH: The question of knowledge here is one that I would—
“THE COURT: You will have to prepare your request on that. I don’t know what you want. We will rule on it at the time.
“MR. GERSCH: Well, when you asked if the basic question is whether he did impede, knowing them to be officers or not, seems to be—
“MR. EARDLEY: Objection. That wasn’t the Court’s question, I think.
“THE COURT: That wasn’t the Court’s question.
“MR. GERSCH: If that is the sole resolution of the issue, then, no, there is no—
“THE COURT: Can you have any requests you may have available by 2:30, Mr. Gersch?
“MR. GERSCH: I will not have any requests, Your Honor. I am sure that the Court will instruct in accordance with the law.”
We do not know why defense counsel failed to pursue the matter by requesting an instruction on the necessity of knowledge. The District Judge, in his instructions, said:
“It is conceded by the defendant that on February 13, 1967, Joseph L. Jesse and Gordon F. Forell were officers of the Internal Revenue Service of the Department of the Treasury of the United States of America.
“It is conceded by the defendant that on that date, the two men named were acting in an official capacity while at the Rybicki residence.
“It is conceded that in such official capacity, they were seeking payment of unpaid 1963 federal income tax which had been assessed against the defendant and his wife, Shirley A. Rybicki.”
These concessions did not include one that Rybicki was aware of all these conceded facts on the morning that the officers started to move his truck. A jury, however, might not have observed such limitation upon the conceded facts.
The District Judge’s instruction on the elements of the charged crime was:
“In order to establish the offense charged in the information, the government must establish by evidence to your satisfaction and beyond a reasonable doubt: First, that Gordon F. Forell and Joseph L. Jesse were agents of the Internal Revenue Service of the United States who, at the time certain alleged threats were made, were engaged in the performance of official duties; and, second, that the defendant made threats of the use of force against Joseph L. Jesse and Gordon F. Forell, and that such threats of use of force obstructed or impeded them in the performance of their duties.”
Absent is the element of Rybicki’s knowledge that Forell and Jesse were government agents engaged in their duties as such.
We feel this omission was not merely a technical procedural fault but could have visited substantial prejudice on Rybicki. There was evidence from which the jury could find that, in the critical moments involved, Rybicki was unsure who the men were and what they were doing with his truck. Evidence showed that things had previously been stolen from his truck and from his premises. On one occasion, his automobile was stolen and later recovered by Grand Rapids police. He claimed that on the morning in question he was awakened by his wife’s shouts that his truck was being backed out of the yard; that he went to his door and “hollered” but nobody answered; and that he then grabbed his gun and observed one man jump out of the truck and say that “he was an Internal Revenue man.” He said he told the man, “Well, just a minute till I get some clothes on,” but when he dressed and returned, they were gone.
The jury could find that Rybicki may not have connected the officer’s words, “Treasury Department” with his tax deficiency. He had just been awakened from sleep. There was proof that while in the service in Korea he had a brain concussion which left sear tissue on the back of his head and so affected him that up to a couple of years before this event he had been annually hospitalized for from three to four months and was regularly prescribed “a tranquilizer to slow me down a little bit.” The jury could be persuaded by Rybicki’s testimony this-his actions were motivated by a fear that his truck was being stolen but, under the Court’s above quoted instruction, they could nevertheless find him guilty.
The law and the special facts of this case persuade us to reverse. We should make clear that we are not announcing a rigid and mechanical rule that failure of a trial judge to instruct on all elements of a crime will call for reversal, notwithstanding that no request therefor was proffered as required by Rule 30, F.R.Crim.P.
Reversed and remanded for a new trial.
. The officers testified only that one of them answered Rybicki’s inquiry by saying, “We are with the United States Treasury Department.”
Question: What is the specific issue in the case within the general category of "criminal - federal offense"?
A. murder
B. rape
C. arson
D. aggravated assault
E. robbery
F. burglary
G. auto theft
H. larceny (over $50)
I. other violent crimes
J. narcotics
K. alcohol related crimes, prohibition
L. tax fraud
M. firearm violations
N. morals charges (e.g., gambling, prostitution, obscenity)
O. criminal violations of government regulations of business
P. other white collar crime (involving no force or threat of force; e.g., embezzlement, computer fraud,bribery)
Q. other crimes
R. federal offense, but specific crime not ascertained
Answer:
|
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".
Lola D. MOORE, Appellant, v. Richard HANSON, Collector of Internal Revenue, et al., Appellees.
No. 20509.
United States Court of Appeals Fifth Circuit.
Jan. 2, 1964.
Charles R. Wheeler, Ft. Worth, Tex., for appellant.
Myron C. Baum, Atty., Dept. of Justice, Louis F. Oberdorfer, Asst. Atty. Gen., Lee A. Jackson, Atty., Dept. of Justice, Washington, D. C., H. Barefoot Sanders, Jr., U. S. Atty., Dallas, Tex., T. Gary Cole, Jr., Asst. U. S. Atty., Ft. Worth, Tex., Meyer Rothwacks, George F. Lynch, Attys., Dept. of Justice, Washington, D. C., for appellee.
Before BROWN, WISDOM and BELL, Circuit Judges.
JOHN R. BROWN, Circuit Judge.
This is an appeal from the denial of a permanent injunction sought against Hanson, a collection officer in the office of the Director of Internal Revenue, and the Director. Appellant’s husband is presently serving a sentence imposed following his conviction on a charge of selling marihuana without payment of the transfer tax. 26 U.S.C.A. § 7237(a). On April 7, 1961, Appellant’s husband had assessed against him an excise tax of $1,403.04 under 26 U.S.C.A. § 4741 for selling the same marihuana. Being unable to collect the tax from Appellant’s husband, Hanson undertook to collect from Appellant. This suit was brought to restrain Hanson and his superior from carrying out Hanson’s announced intention of levying on Appellant’s personal! earnings as a nurse for the purpose of satisfying the tax. The District Court denied the relief sought.
The case was submitted on stipulated facts. It showed that no tax was ever assessed against the wife, the Plaintiff. But Hanson did notify her representative that “ * * * it would be necessary to levy on her salary” if she did not voluntarily pay the assessments against her husband. Of course Plaintiff’s suit proceeded as one by a third party, non-taxpayer, seeking judicial relief from efforts to take her property for payment of taxes due by another so' that 26 U.S.C.A. § 7421(a) was not directly a bar, cf. Campbell v. Bagley, 5 Cir., 1960, 276 F.2d 28, 33; Maule Industries v. Tomlinson, 5 Cir., 1957, 244 F.2d 897, 899.
The whole case seemed to have been briefed and argued below as it was here on intriguing and troublesome questions of the status of the wife’s personal earnings as community property in Texas, the significance, if any, of the husband’s imprisonment, amenability of all rather than half of such earnings for the husband’s debts, and the like. But the argument revealed circumstances making it unnecessary and unwise to explore those problems or even intimate any opinion on them.
The record actually shows that no levy has been made or any of the formalities taken as prescribed in 26 U.S.C.A. §§ 6331, 6332, 6333, 6334, 6335, 6344. All that has taken place is the warning made by a subordinate official that if payment were not forthcoming the Plaintiff’s salary as a nurse would be levied on. This proposed — even threatened — action is a long way from an actual levy or the imminence of a levy. For the argument revealed that the Government is conscious of basic policy considerations connected with collection efforts directed against the personal earnings of a married person whose spouse is imprisoned, a fugitive, or the like. One possible consequence, for example, might be to force a wife to become a public charge if earnings from gainful employment were subject to continuous or repeated seizure.
We mention these, not to assay or pass judgment on them. Rather, they demonstrate that what a subordinate collector, even in good faith, asserts will be done, may never come about at all. Executive, administrative policy considerations and decisions may well result in no levy ever being made.
Nothing in this record required a conclusion that had the Plaintiff remained adamant against voluntary payment, the subordinate’s threat would have been translated into effective levy by responsible superiors charged with responsibility for weighing policy factors. An injunetion was not therefore needed, and the District Court’s denial, though for a different reason, was correct. We do not even remotely imply what the decision should be if the Director persists in, and makes a levy. That case will be for another day on its own record, not this one.
Affirmed.
Question: What is the specific issue in the case within the general category of "economic activity and regulation"?
A. taxes, patents, copyright
B. torts
C. commercial disputes
D. bankruptcy, antitrust, securities
E. misc economic regulation and benefits
F. property disputes
G. other
Answer:
|
songer_procedur
|
B
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant.
LOCAL 553, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. MEENAN OIL CO., Inc., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
Nos. 208, 209, Docket 25306, 25307.
United States Court of Appeals Second Circuit.
Argued April 17, 1959.
Decided May 14, 1959.
Samuel G. Cohen, New York City (Jack Last, New York City, of counsel), for petitioner Local 553.
Hannon, Evans, Nolan & Halpin, New York City (Jerome T. Nolan, New York City, of counsel), for petitioner Meenan Oil Co., Inc.
Jerome D. Fenton, Gen. Counsel, Thomas J. McDermott, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Frederick U. Reel and James C. Paras, Attys., Washington, D. C., for respondent.
Before CLARK, Chief Judge, and SWAN and MOORE, Circuit Judges.
SWAN, Circuit Judge.
These cases are before us upon separate petitions of Local 553, hereafter referred to as the Union, and Meenan Oil Co., Inc., which employs members of the Union. It will be referred to as the Company. The petitioners seek to have set aside a decision and order of the National Labor Relations Board which holds that the Union and the Company have engaged in unfair labor practices and orders them to take remedial action. The Board’s answer to the petitions requests the court to enforce its order.
The Board found that the Company and the Union violated section 8(a)(1), (2) and (3) and section 8(b)(1)(A) and (2) of the Act, 29 U.S.C.A. § 158, by entering into, maintaining and enforcing their 1956 collective bargaining contract which the Board held delegated to the Union final control over the employees’ seniority status. The Board further found that the Union used its control over seniority to cause the Company to discriminate against an employee named Wolny, and that both petitioners thereby violated the same provisions of the Act.
The Company is engaged in the business of selling fuel oil. Since the volume of its business is dependent upon the demand for heating oil, it is inherently a seasonal business which reaches its peak during the months of October to May. In this period it employs the maximum number of drivers. Only a limited number of them are able to maintain year-round employment with the Company. Seniority controls the retention of jobs during the slack summer period, as well as the allocation of driving assignments and shift preferentials during the entire year. The collective bargaining agreement contains the seniority provision set forth in the margin. The Board takes the position that this provision delegates to the Union final control over the seniority status of the Company’s drivers. It relies upon N.L.R.B. v. International Brotherhood of Teamsters, etc., 8 Cir., 225 F.2d 343, 347 which held that delegation to a union of complete control over seniority is violative of the Act “because it tends to encourage membership in a Union.” In accord is N.L.R.B. v. Dallas General Drivers, etc., 5 Cir., 228 F.2d 702, 706. The petitioners apparently concede the correctness of these decisions but maintain that the seniority provisions considered in them differ from the provision under consideration in the case at bar because here the contract provision merely vests the shop steward with ministerial functions to be performed according to an objective standard.
We disagree with the Board’s interpretation of section 10 of the contract and agree with that advanced by the petitioners. Concededly the Company’s business .is seasonal. During the slack season many drivers of its trucks are laid off and take other employment. Some may never return; others will return to the Company’s employ and do not wish to lose their seniority status by reason of .the summer lay-off. To the employer it is important to know by October 15 how many may be expected to return and be available for work. Section 10 of the contract was devised to meet the needs of both the employees and the Company. It requires the drivers who have been laid off during the summer to sign the “seniority roster” by 8 A.M. on October 15 and requires the Company to “accept the certification of said shop steward as to ’ the availability of such men when called by the employer.” The certification is purely a ministerial act to be performed according to an objective standard. The shop steward is vested with no discretion to determine whosé names may appear on the list or the order in which they shall be rehired by the Company. He merely certifies that such men as have signed the seniority roster have done so by 8 A.M. on October 15 and are therefore available for work when and if the employer seeks to hire additional drivers. This seems to us to be an entirely reasonable provision to include in a collective bargaining contract.
The Board further argues that the practice as revealed by the record establishes that the Company in fact surrendered seniority control to the Union. This is based on the Conklin and Wolny episodes. Conklin’s position on the list certified by the shop steward was below that of other men to whom he was senior. Wolny’s name, although he showed up at the plant on the morning of October 15, was not on the list. Superintendent Slater of the Company questioned shop steward Johnson as to these matters. He explained that Conklin had signed late and that Wolny had not signed at all. These explanations and Mr. Slater’s testimony refute in our opinion the Board’s contention that the Company in fact surrendered seniority control to the Union. Nor can we accept the argument that application of the seniority provision to Wolny was discriminatory. While working for another employer Wolny had disregarded a strike-call and the Union had imposed a fine of $500 which he refused to pay. Johnson, who preferred the charges that led to the fine, had developed such animus against Wolny that possibly he might have refused to certify Wolny’s name had he signed the seniority roster. In an affidavit Johnson stated: “If Wolny would have demanded to sign the seniority list, I would not have permitted him to sign until I had called the Union at about 9 A.M. to get advise [sic], in view of my understanding that he quit the past season.” Much was made of this statement by the Trial Examiner in his Intermediate Report. We regard the statement as irrelevant. The fact that Johnson might have discriminated against Wolny is no evidence that he or the Union committed any discriminatory act. Johnson’s only act, namely, omitting Wolny’s name from the roster was ministerial in character and in strict accordance with the seniority provision of the contract, since Wolny had not signed.
For the foregoing reasons the petitions are granted and the Board’s order is set aside.
. “Section 10. Dealers with more than one depot will establish a seniority list for each classification in each depot. It is understood and agreed, however, that men formerly employed in a depot either temporarily or permanently closed, must be placed at the end or other single steady list.
It is further understood and agreed that during the dull season of the year preference shall be given to the chauffeurs on the seniority list and that the Shop Steward shall be the No. 1 man on that list, except as provided in Section 2, paragraph 1.
During the slack season, April 15 to October 15, any employee who according to seniority would not have steady employment shall be entitled to a leave of absence and mai/ntain his full seniority rights during that period. Any man so described must report to the Shop Steward not later than 8 A.M. on October 15 and sign the seniority roster in order to protect his seniority, and, the Employer agrees to accept the certification of said Shop Steward as to availability of such men when called by the Employer. If October 15 falls on a Saturday or Sunday, the reporting day shall be the neait work day. Any man failing to report as above specified shall forfeit all seniority rights.
-No' Shop Steward has the right to tie up a' bar unless authorized' by the delegate, who so authorized in full accordanee -with the terms and provisions of this contract.” (Emphasis supplied.)
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
|
I
|
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".
UNITED TRANSPORTATION UNION, Petitioner, v. INTERSTATE COMMERCE COMMISSION and United States of America, Respondents, Association of American Railroads, Intervenor.
No. 88-1773.
United States Court of Appeals, District of Columbia Circuit.
Argued Sept. 18, 1989.
Decided Nov. 28, 1989.
Gordon P. MacDougall, for petitioner.
Evelyn G. Kitay, Atty., I.C.C., with whom Robert S. Burk, General Counsel, Henri F. Rush, Deputy General Counsel, I.C.C., James F. Rill, Asst. Atty. Gen., Catherine G. O’Sullivan, Atty., Dept, of Justice, Washington, D.C., were on the joint brief, for respondents.
Kenneth P. Kolson, Vienna, Va. and Dennis W. Wilson were on the brief, for inter-venor. G. Paul Moates, Washington, D.C., David M. Levy and J. Thomas Tidd, Washington, D.C., also entered appearances for intervenor.
Before RUTH BADER GINSBURG, SILBERMAN and D.H. GINSBURG, Circuit Judges.
Opinion for the Court filed by Circuit Judge SILBERMAN.
Opinion concurring in denying the petition for review filed by Circuit Judge RUTH BADER GINSBURG.
SILBERMAN, Circuit Judge:
This is a petition brought by the United Transportation Union (“UTU”), seeking review of the Interstate Commerce Commission’s (“ICC”) decision to adopt a rule that exempts the officers and directors of certain rail carriers from obtaining prior approval for interlocking directorates under 49 U.S.C. § 11322(a). See Exemption from 49 U.S.C. 11322(a) for Certain Interlocking Directorates, 5 I.C.C.2d 7 (1988). We hold that the petitioner lacks standing, and therefore dismiss the petition for review.
I.
In the Staggers Rail Act of 1980, Congress gave the ICC broad responsibilities for deregulating the nation’s railroads. One section of that Act, 49 U.S.C. § 10505, directs the ICC to exempt a transaction or class of transactions from regulation when the Commission finds that (1) regulation is not necessary to carry out the 15-factor national rail transportation policy (RTP) articulated in 49 U.S.C. § 10101a; and (2) either (a) the transaction is of limited scope, or (b) regulation is not needed to protect shippers from the abuse of market power. The legislative history of 49 U.S.C. § 10505 indicates that Congress expected the ICC to use its exemption authority to remove “as many as possible of the Commission’s restrictions on charges in prices and services by rail carriers ... and ... adopt a policy of reviewing carrier actions after the fact to correct abuses of market power.” H.R.Rep. No. 1430, 96th Cong., 2d Sess. 105, reprinted, in 1980 U.S.Code Cong. & Admin.News 3978, 4110, 4137. See also Illinois Commerce Comm’n v. ICC, 848 F.2d 1246, 1249 (D.C.Cir.1988), cert. denied, - U.S. -, 109 S.Ct. 783, 102 L.Ed.2d 775 (1989).
Pursuant to that congressional direction, the ICC published, in April of 1988, a notice of proposed rulemaking that would exempt all interlocking directorates between two railroads — except those involving two “class I” railroads — from complying with the requirements of 49 U.S.C. § 11322(a). See Certain Interlocking Directorates; Exemption, 53 Fed.Reg. 12,443 (1988). Section 11322(a), originally enacted as part of the Transportation Act of 1920, ch. 91, § 439, 41 Stat. 496 (1920), prohibits any person from serving as a director or officer of more than one rail carrier unless the ICC has determined that “public or private interests will not be adversely affected.” The proposed rule — by replacing the case-by-case approval system with blanket approval — was designed to eliminate the expense and delay accompanying individual applications. Since the ICC had not rejected an application for an interlocking directorate in nearly twenty years and since no decision to approve an application had ever been challenged by any party, the ICC viewed prior approval as unnecessary. After receiving comments on the proposed rule, including those submitted by the petitioner, the Commission adopted the rule. See Exemption from 49 U.S.C. 11322(a) for Certain Interlocking Directorates, 5 I.C.C.2d 7 (1988).
In its accompanying explanation, the Commission explained its determination that the rule satisfied the requirements for granting exemptions set out in 49 U.S.C. § 10505(a). It first asserted that the exemption promoted several of the fifteen factors that comprise the national rail transportation' policy, finding that the exemption “minimize[s] the need for federal regulatory control and expedite[s] regulatory decisions [49 U.S.C. § 10101a(2) ]; ensure[s] continuation of a sound rail system [49 U.S.C. § 10101a(4) ]; foster[s] sound economic conditions in transportation [49 U.S.C. § 10101a(5) ]; and encourage[s] honest and efficient management [49 U.S.C. § 10101a(10) ].” 5 I.C.C.2d at 11. The Commission also agreed with the comments that contended that, by enabling new carriers to recruit talented and experienced personnel from existing carriers, the exemption would reduce barriers to entry in the industry in furtherance of 49 U.S.C. § 10101a(7). Finally, it believed that none of the other policy goals listed in 49 U.S.C. § 10101a would be adversely affected by the rule. See id. at 12-13.
The ICC then concluded that the rule satisfied both of the two alternative tests of § 10505(a)(2) — that the exemption is of limited scope and that the prior approval requirements of § 11322(a) are not needed to protect shippers from the abuse of market power. Its scope is “limited” because the exemption will not apply to interlocks between two class I carriers and the substantive provisions of § 11322(b), prohibiting certain actions by interlocking officers and directors, are not affected by the rule. And shippers do not need the protection of § 11322(a), according to the ICC, because the small size of class II and class III railroads and the vigorous competition present in the transportation industry made it “highly unlikely for any linkage to succeed in allowing one carrier to dominate or influence the other carrier contrary to the other rail carrier’s or shipper’s interests.” 5 I.C.C.2d at 12. The Commission noted that “no shippers chose to file comments” opposing the rule, thereby suggesting that they did not fear any abuse of market power from interlocking directorates. See id. at 14.
The petitioner argues that the ICC’s decision is inconsistent with § 10505(a) and that it is arbitrary and capricious. The government challenges petitioner’s standing on both prudential and constitutional grounds. Our colleague — apparently of the view that the standing issue is too difficult to resolve — believes we should pass on to the merits without deciding whether we have the constitutional authority to hear the case. To be sure, this court has on occasion followed that course, although not often in recent times, but we are unaware of any case where a panel was criticized for not employing that technique; in other words, for assuming its constitutional obligation. Here the parties have briefed the standing issue and we have accordingly done our best to answer the jurisdictional question raised. It is hard to understand why, under these circumstances, it could be thought a judicial virtue not to do so.
II.
To satisfy the standing requirements of Article III, a complaining party must “show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant, ... and that the injury fairly can be traced to the challenged action and is likely to be redressed by a favorable decision.” Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982) (internal quotes and citations omitted). “The injury alleged must be ... distinct and palpable, ... and not abstract or conjectural or hypothetical.” Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984) (internal quotes and citations omitted).
We are mindful that in analyzing standing issues, we “must accept as true all material allegations of the complaint,” Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343 (1975). This obligation, at least at first blush, might appear to be in tension with the Court’s further admonition that an allegation of injury or of redressability that is too speculative will not “suffice to invoke the federal judicial power.” Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 44, 96 S.Ct. 1917, 1927, 48 L.Ed.2d 450 (1976); accord Warth, 422 U.S. at 507, 95 S.Ct. at 2209. We think this ostensible tension is reconciled by distinguishing allegations of facts, either historical or otherwise demonstrable, from allegations that are really predictions. When considering any chain of allegations for standing purposes, we may reject as overly speculative those links which are predictions of future events (especially future actions to be taken by third parties) and those which predict a future injury that will result from present or ongoing actions — those types of allegations that are not normally susceptible of label-ling as “true” or “false.” Our authority to reject as speculative allegations of future injuries is well-established. See Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983); O’Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974); Golden v. Zwickler, 394 U.S. 103, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969). In Lyons, the Supreme Court reviewed the claim of an individual who alleged that he had been injured by an unjustified “choke-hold” administered to him by a Los Ange-les police officer and that he “justifiably fears that any contact he has with Los Angeles Police officers may result in his being choked and strangled to death ...” 461 U.S. at 98, 103 S.Ct. at 1663. The Court dismissed on Article III grounds the complainant’s prayer for an injunction forbidding the use of such chokeholds by police officers, finding it unduly speculative that the complainant “was likely to suffer future injury from the use of the choke-holds by police officers.” Id. at 105, 103 S.Ct. at 1667. The Court asserted that, “to have a case or controversy with the City that could sustain [his claim for an injunction, the complainant] would have to credibly allege that he faced a realistic threat from the future application of the City’s policy.” Id. at 106-07 n. 7, 103 S.Ct. at 1667-68 n. 7 (emphasis added). On the other hand, we are much less free to reject allegations of existing conditions, of prior or ongoing actions (including intent). In addition, the extent to which we must credit allegations of the cause of injuries that are already sustained is unclear. But if courts were obligated to credit complainants’ predictions of future events or injuries, both the “redressability” prong and, in cases alleging prospective injury, the “fairly traceable” prong of the standing inquiry — which are, at bottom, predictions of cause and effect — would be reduced to mere pleading requirements.
To decide this case we need not settle the uncertainty concerning our obligation to credit allegations of the cause of existing injuries since, unlike Simon and Warth, where the plaintiffs had already suffered an alleged injury-in-fact which they attempted to attribute to the official action in question, the alleged injury here is itself purely prospective — the petitioner makes no claim that the ICC’s exemption has hurt any union member yet. We must therefore reject any of the petitioner’s allegations that we determine to be overly speculative. Moreover, we note that any petitioner alleging only future injuries confronts a significantly more rigorous burden to establish standing. Although “[t]he fact that harm or injury may occur in the future is not necessarily fatal to a claim of standing[,] ... [it can] lessen the concreteness of the controversy and thus mitigate [sic] against a recognition of standing.” Harrington v. Bush, 553 F.2d 190, 208 (D.C.Cir.1977). When a litigant alleges only future injury, he “must demonstrate a realistic danger of sustaining a direct injury ...” Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298, 99 S.Ct. 2301, 2308, 60 L.Ed.2d 895 (1979). This petitioner’s allegation does not even approach this rigorous standard.
The only allegation of injury that we can discern from the petitioner’s brief is that railroad workers “stand to be hurt” by the “unauthorized control and manipulation of carriers” and by “the financial wrecking of rail carriers” that will supposedly result from the exemption for interlocking directorates. Although not explicitly set forth, we can surmise that petitioner is asserting that the ICC’s new rule will lead to the creation of at least one interlocking directorate that would not have been created but for the exemption from § 11322(a), that one of those additional interlocking directorates will result in some anticompetitive behavior or a railroad bankruptcy that would not have occurred but for the interlocking directorate; and that a member of the United Transportation Union will thereby suffer an injury. We believe that this chain of allegations — no link of which is of the type that we must “accept as true” — is fatally speculative and therefore does not suffice to confer standing.
In the first place, we see no reason — and the petitioner offers us none — to credit the proposition that an interlocking directorate involving a class II or class III railroad will damage, let alone lead to the “financial ruin” of, a carrier. If this allegation is aimed at the likelihood that an officer or director will act contrary to the interests of one of the carriers on whose board he sits, it is not just speculative, it is rather far-fetched. To assume that an officer or director will subvert his own firm or drive it into bankruptcy, even if he also has an interest in another carrier, requires us to assume unrealistically that a single officer or director has either the incentive or the power to destroy his own railroad. In addition, crediting this allegation also forces us to presume illegal activities on the part of the individual acting as an executive for more than one railroad. Any director that would, as petitioner fears, purposely steer one carrier into bankruptcy to bolster the competitive position of another or even sacrifice the interests of one of the carriers for the benefit of the other would almost certainly violate his fiduciary duties to the shareholders of the damaged carrier. Indeed, even if an officer or director had a strong incentive to destroy his own firm, it is preposterous to assume that any corporation — who would surely be aware of the executive’s other affiliation— would retain (or hire in the first place) an officer or director who had such an incentive, let alone allow that person to attack the firm from within.
If the petitioner instead is alleging that workers will be injured because of possible anticompetitive collusion of carriers whose directorates are interlocked (which is the classic purpose of prophylactic measures such as § 11322(a)), we think that claim inadequate, primarily because it is wholly speculative whether decreased competition in the railroad industry will harm rather than help UTU members. Theoretically, the ultimate effect of reduced competition on railroad workers — as distinguished from shippers — is indeterminate. Reduced competition is often associated with decreased output, which could translate into fewer job opportunities and/or lower wages for employees. On the other hand, carriers facing less competitive pressure from other carriers will also face less pressure to cut their costs, including labor costs. See Associated Gen. Contractors v. California State Council of Carpenters, 459 U.S. 519, 539, 103 S.Ct. 897, 909, 74 L.Ed.2d 723 (1983) (“a union’s primary goal is to enhance the earnings and improve the working conditions of its membership; that goal is not necessarily served, and indeed may actually be harmed, by uninhibited competition among employers striving to reduce costs in order to obtain a competitive advantage over rivals.”) (footnote omitted); Adams v. Pan American World Airways, Inc., 828 F.2d 24, 27 (D.C.Cir.1987), cert. denied, 485 U.S. 934, 108 S.Ct. 1109, 99 L.Ed.2d 270 (1988). This indeterminacy is enough to defeat petitioner’s standing to claim that the exemption will harm union members by reducing competition — especially when it is considered alongside the other speculative aspects of the chain of allegations.
Even if petitioner could pass over the above hurdles, we would also have to assume that the hypothetical interlocking directorate that facilitated the injurious behavior would not have been formed but for the rule removing the prior approval requirements of § 11322(a). Since the ICC has not rejected any application for the types of interlocking directorates covered by the rule in nearly twenty years, the prior approval procedure seems to have been primarily a nuisance — discouraging applications, if at all, on the basis of bother or expense. While it is possible that the exemption will result in a greater number of interlocking directorates, we see no reason to believe that any links formed after the ICC’s new rule are more likely to be mere subterfuges for collusive behavior than were the interlocking directorates formed under the old regime. Thus, even if a railroad with a newly formed interlocking directorate was sabotaged thereby, or if it engaged in collusion, the exemption challenged here might not even constitute “but for” causation. Not only might the interlocking directorate have been approved even without the ICC’s blanket exemption from § 11322(a), but whatever hypothetical harm that resulted might have occurred even without the interlocking directorate.
Any one of the factors discussed above might be enough to place the petitioner’s allegation in the category of “unadorned speculation,” Simon, 426 U.S. at 44, 96 S.Ct. at 1927, and therefore to deny standing; taken together, petitioner’s claim of injury seems but a shadow in the mist. It fails all three prongs of the standing inquiry; it is highly unlikely that the petitioner will sustain any injury at all; even if an injury were sustained, it is unlikely that it could be fairly traced to the ICC’s exemption from the prior approval provisions of § 11322(a); and, since any hypothetical future injury could also occur even in the absence of the challenged ICC rule, a favorable decision from this court would not be “likely” to redress it, see Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 100, 99 S.Ct. 1601, 1608, 60 L.Ed.2d 66 (1979). Cf. Center for Auto Safety v. Thomas, 847 F.2d 843, 882 (D.C.Cir.1988) (en banc) (opinion of Silberman, J.) (noting that the injury in fact and causation inquiries often run together when the alleged injury is uncertain to occur at all).
It is suggested nevertheless that the petitioner’s allegation must be credited for Article III purposes because Congress, in passing § 11322(a), expressed its belief that interlocking directorates would lead to the financial ruin of rail carriers. We are thus again confronted with an issue that this court has pondered in several recent cases but never definitively settled; what, if any, are the implications for Article III standing purposes of a congressional view of the likely effect of legislation? See Public Citizen v. FTC, 869 F.2d 1541, 1549-50 & n. 16 (D.C.Cir.1989); Dellums v. Nuclear Regulatory Comm’n, 863 F.2d 968, 978-79 (D.C.Cir.1988); id. at 984 (Ruth B. Ginsburg, J., dissenting as to standing).
Decisions about Article III standing are decisions about the constitutional boundaries of the federal judicial power. While Congress indisputably may preclude the federal courts from hearing cases that they would be constitutionally permitted to hear, the Congress surely cannot expand the constitutional jurisdiction of the federal courts — in essence, amend the Constitution — merely by legislating. See Dellums, 863 F.2d at 978. Rather, the courts must resist expansion of their own constitutional boundaries and reject any congressional orders or suggestions that would take them beyond the strictures of Article III. As such, in analyzing Article III standing problems, we cannot be bound by Congress’ predictions or intentions as to the likely effect of legislation.
That is not to suggest, of course, that courts should pay no attention to Congress’ predictions of the effect of legislation. “[A]s a matter of comity, it is unseemly for a federal court to ignore such legislative opinion.” Dellums, 863 F.2d at 978. But in assessing legislative judgments, courts should bear in mind that when Congress predicts that an injury is caused by a certain behavior or phenomenon and when it predicts the likely impact of legislation, it performs a task that is quite different from both the “fairly traceable” and “redressa-bility” portions of the Article III standing inquiry. Congress need not meet constitutional, or any other, causation standards before exercising legislative power. See Dellums, 863 F.2d at 979. When Congress considers a bill that would restrict interlocking directorates between railroads, members or a committee may assert that interlocking directorates between railroads cause bankruptcies and facilitate collusion, but there is no constitutional requirement that such predictions of causation be correct, or even likely, for Congress to legislate in reliance on them. Even if there is only one chance in 1000 that a problem Congress is addressing can be traced to a particular cause, Congress, as an exercise of legislative judgment, may decide to pass a law that is based on that possibility. A court’s causation inquiry is much more rigorous; before a court can constitutionally adjudicate a claim that relies on the allegation that future interlocking directorates will injure UTU members, it must determine that the causal nexus is firm. Otherwise, it misuses judicial power. Similarly, Congress’ analysis of the effectiveness of its product in remedying a perceived ill is necessarily less confined than a court’s re-dressability inquiry. Unlike a court, Congress is not “constitutionally obliged to demonstrate that its exercise of legislative power will have a foreseeable proximate effect on any specific individual” or group of individuals. See Dellums, 863 F.2d at 979. Even if a proposed bill has but one chance in 1000 of solving or even mitigating a certain problem, Congress is free to enact it. As we noted in Dellums, “Congress may and does pass legislation that seeks only approximately or imprecisely ... to affect the behavior of men and nations.” Id. Our concurring colleague— who criticizes our standing analysis without offering her own — therefore mixes apples and oranges when she suggests that we should apply the same “rational basis” standard that we use to measure congressional adherence to constitutional limits on its power when we judge “congressional determinations that bear on standing....” Concurring Opinion at 920. We are in no sense reviewing Congress’ standing determination because Congress did not, by legislating, make one. As we have explained, Congress is not obliged constitutionally to ensure that its power is used only to decide “cases and controversies.” Therefore, an explicit or implicit legislative prediction which induces congressional action is never and can never be “reviewed” by the judiciary when the latter decides a standing issue.
In light of those analytical differences, it is a difficult question whether we owe any deference to congressional predictions or assessments of cause and effect when we analyze a standing problem. Various members of this court have expressed different views on this subject. See, e.g., Public Citizen v. FTC, 869 F.2d 1541, 1549-50 & n. 16 (D.C.Cir.1989) (noting the “propriety” of judicial deference to congressional judgments of cause and effect relationships but stressing that deference “does not mean blind obedienee”); Dellums v. Nuclear Regulatory Comm’n, 863 F.2d 968, 978-79 (D.C.Cir.1988) (observing that “we have never as a court held that we are bound to accept a congressional appraisal of the effect of its product. Indeed, to do so would be to permit Congress, by legislation, to amend the Constitution.”); id. at 984 (Ruth B. Ginsburg, J., dissenting as to standing) (“[wjhen the redressability inquiry involves a question of predictive fact regarding matters outside the realm of judicial expertise, ... courts should be reluctant to contradict the judgment of Congress, doing so only upon a showing that Congress’ judgment does not stand the test of rationality.”). We need not finally settle this dispute to decide the case before us since, even under the formulation that is most deferential to Congress — that we should defer to a rational congressional assessment — we should not defer here. Although the original congressional assessment of the impact of interlocking directorates on railroads may well have been a rational legislative judgment when it was made in 1914, it is too far out of date to serve as a basis for petitioner’s standing.
The legislative history of the interlocking directorate provision, 49 U.S.C. § 11322(a) contains a few statements that arguably support the proposition that interlocking directorates may lead to railroad bankruptcies. First, a report submitted by the House Committee on Interstate and Foreign Commerce in May of 1914 stated that:
Whether the necessity for this provision is so great as represented or not, and whether the anticipated benefits are exaggerated or not, there is a general impression that most of the wreck and ruin of railroads and consequent damage to public service and the public interest has been due to the machinations of men who managed different corporations and by the policies adopted for the different corporations constituting a system or about to be consolidated into a system wrought ruin to some or all of the carriers involved.
H.R.Rep. No. 681, 63d Cong., 2d Sess. 3 (1914), reprinted in 51 Cong.Rec. 9598 (June 1, 1914) (emphasis added). In addition, there were three brief statements made during floor debates in the House in June of 1914 that asserted, in a conclusory fashion, that interlocking directorates were evil, the source of collusion, and an incentive for executives to sacrifice the interests of one carrier to those of another.
Assuming therefore that Congress’ 1914 assessment as to the possible causal connections between interlocking directorates and railroad failures was rational as a legislative appraisal, and further assuming that a legislative appraisal of possible causation is entitled to deference when analyzing the causal element of standing, it would not be rational for us as a court to rely upon Congress’ assessment in this case. To do so would ignore the fact that this assessment was made 75 years ago about a transportation industry in which railroads held a far more dominant market share than they do today. Moreover, we simply cannot disregard a record showing that interlocking directorates among railroads were formed virtually at will over the past 40 years, despite § 11322(a), with absolutely no evidence of any railroad failure resulting therefrom. In these circumstances — leaving aside the question of whether or when we are ever obliged to defer to congressional assertions of cause and effect relationships — it would be irrational to defer to Congress’ 1914 pronouncements about the dangers of interlocking directorates among railroads in order to credit the allegation made by the petitioner here.
III.
One final issue merits discussion. In comments submitted to the ICC opposing the proposed rule, petitioner stated that, “[t]he Commission’s present procedure [requiring prior approval] is quite simple. Moreover, there is developed a public record as to the relationships, which better enables public protection.” And petitioner states in its brief to this court that: “The non-filing of a notice that the interlocking directorate exemption is being invoked requires UTU to seek review of the class exemption to prevent injury prior to a specific exercise of the exemption, since changed directors affect rail operations.” While we are somewhat puzzled as to what this means, even read generously to allege a procedural injury — that it will be more difficult for the union to challenge interlocking directorates in the future because it will not have prior notice of them — we do not think that it confers standing on the petitioner since it bears no plausible nexus to a “substantive” injury.
It is beyond dispute that the federal courts may entertain suits alleging procedural injuries. See, e.g., McGarry v. Secretary of the Treasury, 853 F.2d 981, 984-85 (D.C.Cir.1988) (finding standing for a union challenging the failure of IRS to follow statutory procedure guaranteeing the union’s right to comment on a waiver of minimum payments to a benefit plan); National Wildlife Federation v. Hodel, 839 F.2d 694, 712 (D.C.Cir.1988) (standing based on losing the statutory right to have an environmental impact statement prepared that could be used to evaluate and oppose future mining operations). But before we find standing in procedural injury cases, we must ensure that there is some connection between the alleged procedural injury and a substantive injury that would otherwise confer Article III standing. See, e.g., McGarry, 853 F.2d at 984-85 (“[I]n a claim such as that which appellants bring here, procedural and substantive stakes are inextricably intertwined.... In bringing this action for access to the application, appellants are not seeking to vindicate a procedural right in vacuo.”). (citation omitted). Without such a nexus, the procedural injury doctrine could swallow Article III standing requirements. Consider, for example, what would happen if the ICC adopted a rule stating that any American could intervene in an ICC proceeding to challenge any interlocking directorate between two railroads, and then later repealed that rule. Would every American be entitled to sue alleging that he or she suffered a procedural injury when the right to intervene was revoked? Surely some showing that interlocking directorates would be likely to injure the complainant should be required. Indeed, if a procedural injury alone suffices to confer Article III standing, any American could sue any agency alleging that it is arbitrary and capricious not to have a procedure by which they can challenge agency action.
Given the utter speculativeness of the petitioner’s allegation of substantive injury, any allegation of procedural injury fails as well. The procedural injury arguably alleged here is as tenuously connected to a potential substantive injury as the allegation we found overly speculative in Dimond v. District of Columbia, 792 F.2d 179 (D.C.Cir.1986). In Dimond, we held that a plaintiff challenging the constitutionality of the District of Columbia no-fault insurance law lacked standing to claim that the District of Columbia Council — by failing to read the bill twice in substantially the same form prior to enactment — violated the D.C. statute stating the procedural rules for passing a bill. Even though we had ruled that the plaintiff had alleged sufficient injury in fact — his inability to sue under the no-fault insurance bill — we found no plausible link between the alleged procedural irregularity and the plaintiffs alleged injury since there was no reason to believe that the bill would have been substantially different even if the Council had followed its established procedures. Similarly here, since we do not believe that there is any likelihood that interlocking directorates will harm railroad workers, we see no reason to allow petitioner to sue on a theory that the ICC’s exemption has made it marginally more difficult for the union to challenge interlocking directorates in the future.
We therefore dismiss the petition for review.
. This case was originally brought by Patrick Simmons, the Illinois Legislative Director of the UTU, under his own name. Since Simmons does not even have putative standing as an individual and since subsequent submissions indicate that he actually represents the UTU, we have changed the name of the case.
. For a union to have standing to represent its members under Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333, 343, 97 S.Ct. 2434, 3441, 53 L.Ed.2d 383 (1977), it must show that (1) union members would otherwise have standing to sue in their own right; (2) that the interests being asserted are germane to the union’s purpose; and (3) that individual members' participation is not needed for the claim asserted or for the relief requested. Because we find that no union member would have standing to bring this challenge, we do not discuss the second and third requirements.
. Pub.L. No. 96-448, 94 Stat. 1895 (codified at 49 U.S.C. §§ 10101-11917).
. Section 10101a provides that:
In regulating the railroad industry, it is the policy of the United States Government — (1) to allow, to the maximum extent possible, competition and the demand for services to establish reasonable rates for transportation by rail; (2) to minimize the need for Federal regulatory control over the rail transportation system and to require fair and expeditious regulatory decisions when regulation is required; (3) to promote a safe and efficient rail transportation system by allowing rail carriers to earn adequate revenues, ... (4) to ensure the development ... of a sound rail transportation system with effective competition among rail carriers and with other modes ... (5) to foster sound economic conditions in transportation ... (6) to maintain reasonable rates where there is an absence of effective competition ... (7) to reduce regulatory barriers to entry into and exit from the industry; (8)
Question: What federal agency's decision was reviewed by the court of appeals?
A. Benefits Review Board
B. Civil Aeronautics Board
C. Civil Service Commission
D. Federal Communications Commission
E. Federal Energy Regulatory Commission
F. Federal Power Commission
G. Federal Maritime Commission
H. Federal Trade Commission
I. Interstate Commerce Commission
J. National Labor Relations Board
K. Atomic Energy Commission
L. Nuclear Regulatory Commission
M. Securities & Exchange Commission
N. Other federal agency
O. Not ascertained or not applicable
Answer:
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songer_appel2_1_3
|
G
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case.
CONTINENTAL INV. CO. et al. v. TOELLE et al.
(Circuit Court of Appeals, Eighth Circuit.
May 4, 1925.)
No. 6738.
Judgment ®=»457 — Company claiming property attached in suit against show company not entitled to enjoin clerk’s payment to plaintiff of amount of judgment recovered and paid into court by surety on bond to discharge attachment.
Where judgment was obtained against surety company in action in state court on bond given to discharge attachment levy in action against a show company, and amount of such judgment paid to clerk of court in which judgment was obtained, held,, investment company, alleging that attachment levy, taking of bond, and recovery against show company were all result of a conspiracy, and that property attached belonged to investment company, and when attached was under lease to a show company other than that against which judgment had been recovered, could not by suit, in which neither first show company nor surety company were made defendants, enjoin clerk from paying to plaintiff in original action money paid into court by surety company.
Appeal from tbe District Court of tbe United States for tbe District of Kansas; John- C. Pollock, Judge.
Suit by tbe Continental Investment Company and another against John Toelle and others. Decree for defendants, and plaintiffs appeal.
Affirmed.
John T. Bottom, of Denver, Colo. (Frank M. Lowe, of Kansas City, Mo., and A. J. Herrod, of Kansas City, Kan., on tbe brief),for appellants.
J. Francis O’Sullivan, of Kansas City, Mo. (Joseph H. Brady and T. Forrest Railsback, both of Kansas City, Kan., on tbe brief), for appellees Toelle, O’Sullivan, and Fincke.
Maurice J. O’Sullivan, Harry Friedberg, and Ralph L. Adams, all of Kansas City, Mo. (Myer M. Rich, of Kansas City, Mo., on the brief), for appellees O’Sullivan, Brady, and Railsback.
James F. Getty, of Kansas City, Kan., for appellee Wright.
Before SANBORN and LEWIS, Circuit Judges.
LEWIS, Circuit Judge.
This suit was brought by appellants to restrain the clerk of the district court for Wyandotte county, Kan., from paying over money in his hands which he received from the National Surety Company for John Toelle, and was dismissed on demurrer to the bill. The money was received by the clerk under these circumstances :
John Toelle recovered a judgment in the district court for Wyandotte County, Kansas, against Sells-Floto Shows Company, a corporation, on account of personal injuries inflicted on him while he' was an employé of that company, and that judgment was affirmed on appeal. Toelle v. Sells-Floto Shows Co., 111 Kan. 562, 207 P. 849. On bringing his action Toelle sued out an attachment and caused levy to be made. Thereupon the Shows Company, as principal, with National Surety Company as its surety, gave bond under the State statute to plaintiff Toelle as obligee, conditioned that if the Sells-Floto Shows Company would pay any judgment that might be rendered against it in Toelle’s action the obligation of the bond would be void; otherwise to remain in full force and effect. Under the statute the bond discharged the attachment levy and released the property that had been levied upon. SellsFloto Shows Company answered Toelle’s complaint and the ease went to trial, with the result that has been stated, but the Shows Company failed to pay the judgment against it. Then Toelle brought an action on the bond against National Surety Company and recovered judgment against it for the amount of the unpaid prior judgment. This judgment was also affirmed on appeal. Toelle v. National Surety Co., 115 Kan. 425, 223 P. 256. The Surety Company then paid to the clerk of the court in which both judgments were recovered the amount of the judgment.against it. Immediately thereafter complainants, Continental Investment Company and Champion Shows Company, corporations, filed this hill against Toelle, his counsel and the sheriff, alleging the facts that have been stated, and further alleging that the attachment levy, the taking of the bond and the recovery of the judgment by Toellp against Sells-Floto Shows Company were all the result of a conspiracy between the defendants, that the property attached and the circus of which it was a part all belonged to Continental Investment Company and was at the time of the attachment levy under lease by it to its eo-eomplainant, the Champion Shows Company, and that SellsFloto Shows Company at that time had no title to or interest in it whatsoever. The history of that ease, disclosed in the opinion of the Supreme Court of Kansas, informs us that the chief defense made by Sells-Floto Shows Company in the -action against it was that Toelle had sued the wrong party; but the court held, after a careful review of the evidence, that there was sufficient proof to sustain the jury’s finding on that issue. 111 Kan. 562, 207 P. 849, supra. But whatever the real facts may have been in that respect they are of no importance here and are not open for inquiry as long as that judgment remains and has not been vacated. Until that has been done by final decree the obligation on the bond is absolute and the surety unconditionally bound. All of the allegations in this bill constitute an attack on the judgment recovered by Toelle against SellsFloto Shows Company, that company is not a party to this suit, and it is an indispensa<ble, party to any relief against that judgment. Nor is the National Surety Company a party here. Steele v. Culver, 211 U. S. 26, 29 S. Ct. 9, 53 L. Ed. 74. In that ease the bill sought, as here, to enjoin the collection of a judgment rendered 'by a State Court against a railroad company and also a judgment against a surety on a bond given by it when it took the ease to the appellate court. The Supreme Court there said:
“So long as the judgment against the railroad stands, that against its surety cannot be impeached. By its bond the surety undertook to pay the judgment, if rendered, against its principal, whether right or wrong. If the principal remains liable under that judgment the surety is bound to pay. " * * The bill, as we have said, is founded solely on allegations of fraud in getting the first judgment, and must be maintained upon them if upon any. The railroad company is an indispensable party if that issue is to be tried. It is unnecessary to’consider other objections to the suit.”
Some help for the bill is thought to lie in this allegation:
“That under and by virtue of the obligá-tions of the plaintiffs herein to the said,the National Surety Company of New York, made generally before the beginning of the circus season of the year 1920, for the furnishing'of bonds from time to time for the protection of the said Continental Investment Company as owner and the Champion Shows Company as lessee of the property and operator of the circus, they were compelled to pay unto the said the National Surety Company of New York, the amount of said last mentioned judgment, interest and costs, and the said the National Surety Company has this day paid to the said defendant Carl W. Fineke as Clerk of the District Court of Wyandotte County, Kansas, the said judgment, interest and costs. * * “ ”
That allegation may dispel the notion that the plaintiffs are strangers and intermeddlers complaining about things in which they have no interest, but it brought them under an obligation to the surety. They became indem-nitors, and the allegation relied on rebuts the claim that the bond was not given for their benefit.
Affirmed
Question: This question concerns the second listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case?
A. agriculture
B. mining
C. construction
D. manufacturing
E. transportation
F. trade
G. financial institution
H. utilities
I. other
J. unclear
Answer:
|
songer_counsel1
|
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 appellant. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
UNITED STATES of America, for the Use and Benefit of CARTER EQUIPMENT COMPANY, INC., Plaintiff-Appellee, v. H. R. MORGAN, INC. and National Indemnity Company, Defendants-Appellants.
No. 75-2362.
United States Court of Appeals, Fifth Circuit.
June 16, 1977.
Thomas W. Tyner, Hattiesburg, Miss., for H. R. Morgan & Nat’l Indemnity.
Francis T. Zachary, Hattiesburg, Miss., for H. R.. Morgan.
Wm. H. Cox, Jr., Jackson, Miss., D. Gary Sutherland, Hattiesburg, Miss., for plaintiff-appellee.
ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC
(Opinion January 10, 1977, 5 Cir., 1977, 544 F.2d 1271).
Before COLEMAN, GODBOLD and HILL, Circuit Judges.
PER CURIAM:
The Petition for Rehearing is GRANTED. No member of this panel nor Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc (Rule 35 Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12) the Petition for Rehearing En Banc is DENIED. The appellee, Carter Equipment Co., Inc. (Carter), suggests in its petition for rehearing that our decision disallowing the recovery of attorney’s fees in this Miller Act suit was erroneous. We agree and the following is to be substituted for the last paragraph of our prior opinion:
Finally, appellants insist that the district court erred in awarding attorney’s fees to Carter. The issue is whether a contractual provision for attorney’s fees between a subcontractor and its supplier is enforceable against the general contractor and its surety under the Miller Act. Carter asserts that since the equipment rentals provided for the recovery of attorney’s fees, this award is recoverable under the general terms of the payment bond, interpreted with a view toward the liberal purpose of the Miller Act.
The relevant statutory language provides that “[ejvery person who has furnished labor or material in the prosecution of the work provided for in such contract . who has not been paid in full therefor . shall have the right to sue on such payment bond . . . for the sum or sums justly due him”. 40 U.S.C.A. § 270b(a). It is important to note that the statute does not differentiate between the scope of coverage for the liabilities of subcontractors as opposed to the scope of coverage for the liabilities of general contractors. While the statute does impose some additional notice requirements on persons having no direct contractual relationship with the general contractor, insofar as financial coverage of the bond is concerned, a supplier of the subcontractor is equally as entitled to be “paid in full” for “the sums justly due him.”
The Supreme Court allowed the recovery of attorney’s fees in United States ex rel. Sherman v. Garter, 353 U.S. 210, 77 S.Ct. 793, 1 L.Ed.2d 776 (1957). A provision for the award of attorney’s fees was contained in a contract between the general contractor and the trustees of an employees’ welfare fund. The Supreme Court held that the attorney’s fees were “sums justly due” under the Miller Act. Since there appears to be no statutory basis for distinguishing between the recovery allowed to the supplier of a subcontractor and that of a person dealing directly with the general contractor, we conclude that attorney’s fees are a recoverable item under this Miller Act bond. At least two other circuits have reached this same conclusion. Travelers Indemnity Co. v. United States ex rel. Western Steel Co., 362 F.2d 896 (9th Cir. 1966); D & L Construction Co. v. Triangle Electric Supply Co., Inc., 332 F.2d 1009 (8th Cir. 1964).
There is some authority in this circuit which would support a contrary conclusion. The court in United States ex rel. Mississippi Road Supply Co. v. Morgan, 542 F.2d 262 (5th Cir. 1976), posited that “[e]ven under the more liberal rules of construction applicable in Miller Act eases, precedent indicates that the terms of this bond would not support an award of attorney’s fees.” Id. at 269. However, the Mississippi Road Supply court was concerned with a hybrid bond that was neither fish nor fowl. The court merely recited this circuit’s position with regard to Miller Act bonds as reflected in Transamerica Insurance Co. v. Red Top Metal Inc., 384 F.2d 752 (5th Cir. 1967). The Supreme Court subsequent to Red Top Metal disapproved of our practice of looking to state law for resolution of the attorney’s fee issue. F. D. Rich Co., Inc. v. United States ex rel. Industrial Lumber Co., Inc., 417 U.S. 116, 94 S.Ct. 2157, 40 L.Ed.2d 703 (1974). Of course, we are bound to apply the decision in F. D. Rich to the instant suit and upon application of purely federal law we conclude that the contractual provision for attorney’s fees in this case is enforceable under the Miller Act bond.
REVERSED and REMANDED.
. ATTORNEY’S FEES. Should it become necessary that Lessor employ an attorney to enforce any of the provosions (sic) of this Agreement, to take possession of the equipment covered hereby or any part thereof, or to recover any sum of money due hereunder, Lessor shall be entitled to recover such reasonable attorney’s fees and expenses as shall be incurred in connection therewith.
. The language relied upon provides:
“NOW THEREFORE, if the Principal shall promptly make payment to all persons supplying labor and material in the prosecution of the work provided for in said contract, . .
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_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
Kenneth H. WINCHELL, Appellant, v. David LORTSCHER, Appellee.
No. 18603.
United States Court of Appeals Eighth Circuit.
May 22, 1967.
Martin A. Cannon, Omaha, Neb., for appellant.
John J. Higgins, Jr., Omaha, Neb., for appellee.
Before VOGEL, Chief Judge, and GIBSON and HEANEY, Circuit Judges.
VOGEL, Chief Judge.
Plaintiff-appellant, Kenneth H. Winchell, commenced this action in Federal District Court on December 10, 1963, claiming a breach by defendant-appellee, David Lortscher, of a grain storage contract. On December 20, 1963, defendantappellee moved to dismiss on several grounds, one of them being that the same issues had previously been litigated between the same parties in the District Court of Pawnee County, Nebraska, and that judgment therein entered in favor of appellee Lortscher is res judicata in the instant action. Motion to dismiss was overruled on May 12, 1964. Appellee Lortscher thereupon filed an answer to the complaint in which he again alleged that by reason of the previous adjudication, the issues therein raised were res judicata. Upon that ground he then subsequently moved for a summary judgment pursuant to Rule 56, Federal Rules of Civil Procedure, 28 U.S.C.A.
On March 14, 1966, defendant-appellee’s motion for summary judgment was granted by the District Court, which found that the doctrine of res judicata applied in that the issues raised had been previously tried by the District Court of Pawnee County, Nebraska.
On March 23, 1966, plaintiff-appellant moved the District Court for a new trial on the grounds that the order granting summary judgment was not sustained by the evidence and was contrary to law.
On July 26, 1966, the District Court overruled the motion for a new trial.
On August 2, 1966, appellant’s attorney received notice of the entry of this final appealable order.
On September 26, 1966, plaintiff-appellant moved the District Court for an extension of time for appeal. Such motion was based on plaintiff-appellant’s affidavit and testimony to the effect that while his counsel learned of the entry of judgment on August 2, 1966, he, the plaintiff-appellant, did not receive notice until September 25, 1966, "since the plaintiff was continuously traveling throughout this country and abroad during the period in question”. The motion was resisted by the defendant-appellee. The District Court, while finding “ * * the testimony of the plaintiff far from satisfactory and lacking in credibility”, nevertheless determined that plaintiff’s delay in taking his appeal was the result of excusable neglect, granted the motion and extended the time of appeal to the day of the hearing, September 26, 1966, which was the sixtieth day following the overruling of plaintiff-appellant’s motion for new trial. On the same day plaintiff-appellant filed notice of appeal. Defendant-appellee cross-appealed, claiming that the District Court erred in extending the time for filing a notice of appeal. Because we find the notice of appeal herein was not timely and the District Court erred in granting the motion for extension of time to appeal, we do not reach the questions raised in the main case.
A detailed recital of the procedural steps followed in this case is deemed necessary because the critical question presented herein is whether a timely appeal was made to this court within the meaning of Rule 73(a), Federal Rules of Civil Procedure, 28 U.S.C.A. Appeal to the Court of Appeals is governed by Rule 73 (a), as amended February 28, 1966, effective July 1, 1966, which provides in pertinent part as follows:
“How and When Taken. An appeal permitted by law from a district court to a court of appeals shall be taken by filing a notice of appeal with the district court within 30 days from the entry of the judgment appealed from, except that: (1) in any action in which the United States or an officer or agency thereof is a party, the notice of appeal may be filed by any party within 60 days from such entry; (2) upon a showing of excusable neglect the district court in any action may extend the time for filing the notice of appeal not exceeding 30 days from the expiration of the original time herein prescribed; * * *. The running of the time for appeal is terminated as to all parties by a timely motion made by any party pursuant to any of the rules hereinafter enumerated, and the full time for appeal fixed in this subdivision commences to run and is to be computed from the entry of any of the following orders made upon a timely motion under such rules: * * * denying a motion for a new trial under Rule 59.
“Failure of an appellant to take any step other than the timely filing of a notice of appeal does not affect the validity of the appeal, but is ground only for such action as the court of appeals deems appropriate, which may include dismissal of the appeal. * * * ” (Emphasis supplied.)
As can be seen from the above-recited facts, the District Court denied the motion for a new trial on July 26, 1966, and it was upon this date that the ■ time for appeal began to run. On September 26, 1966, 60 days after the denial of the motion for a new trial, appellant moved in the District Court for an extension of time within which to appeal and following a hearing in which the motion was resisted by counsel for appellee, such motion was granted. On the same day appellant then filed notice of appeal. The clear dictate of Rule 73(a) is that for a notice of appeal to be timely it must be filed within 30 days following the final disposition of the case unless there is a showing of excusable neglect within the meaning of the rule, whereupon the time for appeal can be extended by the District Court for an additional 30 days.
It is well established that the time requirements set forth within Rule 73(a) within which an appeal must be taken are mandatory and jurisdictional. See, Young v. Chicago, Milwaukee, St. Paul and Pacific R. Co., 8 Cir., 1966, 369 F.2d 502, 504; Barta v. Oglala Sioux Tribe of Pine Ridge Reservation of South Dakota, 8 Cir., 1958, 259 F.2d 553, 555, certiorari denied, 358 U.S. 932, 79 S.Ct. 320, 3 L.Ed.2d 304; St. Luke’s Hospital v. Melin, 8 Cir., 1949, 172 F.2d 532, 533. If notice of appeal is not taken within the 30 days after the final entry of an appealable order provided for in Rule 73 (a), and no effective action is taken to perfect an appeal, then notice is not timely and jurisdiction is destroyed. See, Young v. Chicago, Milwaukee, St. Paul and Pacific R. Co., supra; Cohen v. Curtis Publishing Co., 8 Cir., 1964, 333 F.2d 974, 978, certiorari denied, 380 U.S. 921, 85 S.Ct. 923, 13 L.Ed.2d 808, rehearing denied, 380 U.S. 989, 85 S.Ct. 1351, 14 L.Ed.2d 283. If effective action is taken to protect the right of appeal under Rule 73(a), it is possible for the District Court to extend the time within which a notice of appeal may be filed an additional 30 days after the expiration of the original 30 days, making a total of 60 days after the final entry of an appeal-able order but in no event may there be an extension beyond the 60 days. See, Plant Economy, Inc. v. Mirror Insulation Co., 3 Cir., 1962, 308 F.2d 275, 278; Edwards v. Doctors Hospital, 2 Cir., 1957, 242 F.2d 888, 890-891, certiorari denied, 356 U.S. 930, 78 S.Ct. 770, 2 L.Ed.2d 761. A motion for extension of time to appeal may be made in the District Court either before or after the expiration of the original 30 days. Harris Truck Lines, Inc. v. Cherry Meat Packers, Inc., 1962, 371 U.S. 215, 216-217, 83 S.Ct. 283, 9 L.Ed.2d 261. But after the expiration of the original 30 days the District Court may not grant ex parte an extension of time for appeal but must give notice and opportunity to be heard to all adverse parties. Cohen v. Plateau Natural Gas Co., 10 Cir., 1962, 303 F.2d 273, 274, certiorari denied, 371 U.S. 825, 83 S.Ct. 45, 9 L.Ed.2d 64; North Umberland Mining Co. v. Standard Acc. Ins. Co., 9 Cir., 1952, 193 F.2d 951, 952. In the above-cited cases the Courts of Appeals found themselves unable to take jurisdiction either because the notice of appeal was filed beyond the absolute 60-day limitation or the extension of time within which to take an appeal was improperly granted by the trial court after the expiration of the original 30-day period in an ex parte proceeding. Neither of these situations is present in the instant case for the motion for an extension of time and the notice of appeal were filed on the sixtieth day after the entry of an appealable order and the motion for an extension of time was granted after an adversary hearing, although there may be some question here as to whether appellee personally received notice of this twelfth hour proceeding. Therefore this case, unlike those previously cited, squarely presents the problem of whether there was, as a matter of law, any grounds for granting an extension of time for an appeal beyond the original 30 days after the entry of the appealable order, as provided for in Rule 73(a). It is a fundamental necessity that the moving party show clearly the existence of a valid ground for an extension of time for appeal, because in the absence of such a showing, a simple compliance with the maximum 60-day time limitation and the hearing requirement at time of extension of appeal time is of no avail. Although the power to extend the time of appeal an additional 30 days from the expiration of the original 30 days rests solely in the District Court, the District Court may not exercise such power unless grounds for an extension of appeal time within the meaning of Rule 73(a) are first clearly established.
Rule 73(a), as amended, now provides simply:
“ * * * (2) upon a showing of excusable neglect the district court in any action may extend the time for filing the notice of appeal not exceeding 30 days from the expiration of the original time herein prescribed; * * *»
thereby omitting the words “based upon a failure of a party to learn of the entry of judgment” which had previously been incorporated in the rule following the word “neglect”. The notes of the Advisory Committee, in commenting upon the rule change, stated:
“The original rule authorized the district court to extend the time for appeal for a period not to exceed 30 days from the expiration of the time otherwise prescribed ‘upon a showing of excusable neglect based upon a failure of a party to learn of the entry of the judgment * * *.’ The exception numbered (2) eliminates the phrase ‘based upon a failure of a party to learn of the entry of the judgment’ and thus empowers the district court to extend the time upon a showing of excusable neglect of any kind. In view of the ease with which an appeal may be perfected, no reason other than failure to learn of the entry of judgment should ordinarily excuse a party from the requirement that the notice be timely filed. But the district court should have authority to permit the notice to be filed out of time in extraordinary cases where injustice would otherwise result.”
The word change was therefore not intended to fundamentally alter the scope of the rule. Judicially, it has long been recognized that in light of Rule 73(a) the only valid ground for extension of appeal time is a showing of excusable neglect based upon the failure of a party to learn of an entry of judgment. See, e. g., Knowles v. United States, 5 Cir., 1958, 260 F.2d 852, 854; Howard v. Local 74, Wood, Wire and Metal Lathers International, 7 Cir., 1953, 208 F.2d 930, 932; Felton v. Florida East Coast Ry. Co., D.C.S.D.N.Y.1948, 8 F.R.D. 232, 233. In light of the Advisory Committee’s comments upon the Rule 73(a) changes and the interpretative judicial decisions, it is clear that it remains incumbent upon appellant to show that he comes precisely within the scope of Rule 73(a) which still requires a showing of excusable neglect based upon the failure of a party to timely learn of an entry of judgment before any extension of time to make an appeal beyond the original 30-day period is permitted.
The final appealable order in the instant case was entered July 26, 1966. Counsel for appellant learned of the entry of judgment August 2, 1966, and thereupon attempted to notify appellant at several different mailing addresses. According to the affidavit presented at the time of hearing for an extension of time, appellant did not personally receive notice until September 25, 1966, and it was upon the information contained in that affidavit that an extension of time was granted. It is uncontradicted that appellant’s counsel, who was, during all stages of this action, counsel of record and in charge of all proceedings, had timely notification of the entry of judgment.
The finding of excusable neglect in the instant action was based upon the failure of a party to timely learn of the entry of judgment. The principal question presented herein is what, in fact, constitutes failure of a party to learn of the entry of judgment under Rule 73(a) and whether timely notification of counsel for a party is held to be timely notification within the meaning of Rule 73(a). “Party" is a legal term and a word of art which must be viewed in the context of the rule in which it appears as well as in the context of the other relevant Federal Rules of Civil Procedure. Further, the judicial authority which either explicitly or implicitly interprets the purport of “party” within the meaning of Rule 73(a) must be given due consideration.
Rule 73(a) does not stand in isolation but functions concurrently with all other Federal Rules of Civil Procedure. The two other rules that are directly applicable to the functioning of Rule 73(a) in the present context are Rule 77(d) and Rule 5(b). It is necessary to examine each of these in order to determine what constitutes notice to a party within the meaning of Rule 73(a). Rule 77(d) provides :
“Notice of Orders or Judgments. Immediately upon the entry of an order or judgment the clerk shall serve a notice of the entry by mail in the manner provided for in Rule 5 upon each party who is not in default for failure to appear, and shall make a note in the docket of the mailing. Such mailing is sufficient notice for all purposes for which notice of the entry of an order is required by these rules; but any party may in addition serve a notice of such entry in the manner provided in Rule 5 for the service of papers. Lack of notice of the entry by the Clerk does not affect the time to appeal or relieve or authorize the court to relieve a party for failure to appeal within the time allowed, except as permitted in Rule 73(a).”
Rule 77(d) thus specifically provides for notice of entry of judgment in the manner prescribed by Rule 5(b). Rule 5(b) provides:
“Whenever under these rules service is required or permitted to be made upon a party represented by an attorney the service shall be made upon the attorney unless service upon the party himself is ordered by the court.” (Emphasis supplied.)
An examination of these rules leads inevitably to the conclusion that when the rule speaks in terms of serving a party in order to guarantee that a party has timely notification of the proceedings, it is in fact requiring that the attorney who is representing the client be given timely notification of the state of the proceedings. It is directly contrary to Rule 5 for notice to issue to one other than the attorney of record when a party is represented, unless personal service upon the party is ordered by the court. See, generally, 2 Moore’s Federal Practice, § 5.06, pp. 1351-1354. This is in accord with the fundamental legal relationship of attorney-client where the attorney acts for the client in all transactions arising out of the matter over which the client has given him responsibility. The notes of the Advisory Committee, in commenting upon Rule 77(d), are a further aid in determining the intent and purposes of these federal rules:
“Rule 77(d) as amended makes it clear that notification by the clerk of the entry of a judgment has nothing to do with the starting of the time for appeal; that time starts to run from the date of entry of judgment and not from the date of notice of the entry. Notification by the clerk is merely for the convenience of litigants. And lack of such notification in itself has no effect upon the time for appeal; but in considering an application for extension of time for appeal as provided in rule 73(a), the court may take into account, as one of the factors affecting its decision, whether the clerk failed to give notice as provided in rule 77(d) or the party failed to receive the clerk’s notice. It need not, however, extend the time for appeal merely because the clerk’s notice was not sent or received. It would, therefore, be entirely unsafe for a party to rely on absence of notice from the clerk of the entry of a judgment, or to rely on the adverse party’s failure to serve notice of the entry of a judgment. Any party may, of course, serve timely notice of the entry of a judgment upon the adverse party and thus preclude a successful application, under rule 73(a), for the extension of the time for appeal.” (Emphasis supplied.)
The inescapable conclusion that must be drawn when reading these notes and the rules to which they apply is that when the rules speak of giving notice to a party, they are expressing the accepted legal principle that notice to the attorney is notice to the party. See, Annotation, Extension of Time For Appeal, 9 L.Ed. 2d 1088, 1092-1093. It is the duty of the attorney to act for his client in all legal matters. When notice was received by appellant’s attorney on August 2,1966, there was timely notification to a party within the meaning of Rule 73(a) and it was therefore incumbent upon counsel to take timely action within the original 80 days after the entry of an appealable order to preserve his right of appeal. This he failed to do.
Although the judicial authority on this point is not extensive, those courts which have faced this precise Rule 73(a) problem have held in accord with the above reasoning. In Howard v. Local 74, Wood, Wire and Metal Lathers International, 7 Cir., 1953, 208 F.2d 930, 933-934, the court stated:
“* * * Rule 77(d) requires the clerk to serve notice of the entry of an order or judgment, by mail, on all parties not in default by failure to appear. A docket entry of July 20, 1953, by the clerk of court below, establishes the fact that notice of the judgment of that date was mailed to plaintiffs’ counsel on July 21, which, under the provisions of Rule 5, is tantamount to service on the plaintiffs. * * * Under Rule 5, notice to counsel is notice to all parties represented by him. The failure of any interested party to receive actual notice is due solely to the neglect of plaintiffs and their counsel.
“For the foregoing reasons we hold that no ‘excusable neglect’, within the exception provided in Rule 73(a), is shown and that the appeal should be dismissed for want of jurisdiction.” (Emphasis supplied.)
Similarly, in Harris Truck Lines, Inc. v. Cherry Meat Packers, Inc., 7 Cir., 1962, 303 F.2d 609, vacated on other grounds, 371 U.S. 215, 83 S.Ct. 283, 9 L.Ed.2d 261, the court at page 611 of 303 F.2d stated:
“Moreover, notice to plaintiff’s attorney of record of the judgment and of the denial of the motion for a new trial constituted notice to the plaintiff. Rule 5, Federal Rules of Civil Procedure (28 U.S.C.A.); Howard v. Local 74, etc., supra. No showing was made before the District Court that would justify an exception to the general principle, recognized by Rule 5, that notice to counsel of record is notice to
the party he represents.” (Emphasis supplied.)
See, also, 2 Moore’s Federal Practice, § 506, n. 1, p. 1351; 7 Moore’s Federal Practice, § 73.09[3], n. 5, pp. 3176-3178; Annotation, Extension of Time For Appeal, 9 L.Ed.2d 1088, 1093.
Harris, supra, arising under Rule 73 (a), involved a peculiar fact situation in that appellant’s general counsel was out of the country at the time of entry of a final appealable order and therefore in order to preserve the right of appeal the local trial counsel requested a hearing within the original SO days, at which time an additional two weeks were granted by the District Court within which to file a notice of appeal. Appellant’s general counsel later returned to the country and learned of the entry of judgment within the original 30 days but did not file a notice of appeal until the conclusion of the additional two weeks that had been granted upon the timely request of trial counsel within the original 30 days. The Supreme Court concluded that:
“In view of the obvious great hardship to a party who relies upon the trial judge’s finding of ‘excusable neglect’ prior to the expiration of the 30-day period and then suffers reversal of the finding, it should be given great deference by the reviewing court. Whatever the proper result as an initial matter on the facts here, the record contains a showing of unique circumstances sufficient that the Court of Appeals ought not have disturbed the motion judge’s ruling.” (Emphasis supplied.) Harris Truck Lines, Inc. v. Cherry Meat Packers, Inc., 1962, 371 U.S. 215, 217, 83 S.Ct. 283, 285, 9 L.Ed.2d 261.
The Supreme Court, in its reference to the “party” as quoted above, is referring to the general counsel who was in charge of conducting the appeal. Because there was a timelv hearing and reliance by counsel upon the District Court’s extension of time for appeal, the Supreme Court found the existence of such “unique circumstances” that it was. necessary to permit an exception to the mandatory jurisdictional requirement that notice of appeal be filed within 30 days of the entry of an appealable order. In th§ instant case it is clear that such “unique circumstances” were not present. Appellant’s counsel, who was continually in control of the proceedings from the filing of the original complaint to the prosecution of the instant appeal, admittedly had timely notice of the entry of a final appealable order. In light of the authorities set out above, notice to counsel under Rule 73(a) must be held to be notice to the party he represents. There is no reliance in the instant action as there was in Harris, supra, for counsel here sat for 60 days without attempting to protect or perfect an appeal. Because the party had timely notification of the entry of a final appealable order within the meaning of Rule 73(a), there can be no showing of excusable neglect. The appellant was therefore not entitled to the additional 30 days within which to bring this appeal.
In summation we conclude that:
1. The time requirements set forth under Rule 73(a) within which to appeal following the entry of a final appealable order are mandatory and jurisdictional.
2. If appellant (a) takes timely action to protect the right of appeal and (b) offers a valid excuse recognized by Rule 73(a) for his failure to bring an appeal within the original 30 days, the District Court may, acting upon its sole discretion, extend the time within which a notice of appeal may be filed an additional 30 days after the expiration of the original 30 days.
3. A motion for extension of time to appeal may be made before or after the original 30 days, but if made after the expiration of the original 30 days, an adversary hearing on the motion is required before it may be granted by the District Court.
4. At said hearing movant must show that excusable neglect within the precise meaning of Rule 73(a) precluded him from bringing a timely appeal.
5. The principal ground of excusable neglect under Rule 73(a) and one upon which appellant here relies is the failure of a party to timely learn of the entry of judgment.
6. A contextual examination of Rule 73(a) and the other relevant Federal Rules with which Rule 73(a) concurrently functions compels the conclusion that notice to the attorney for a party is notice to the party under Rule 73(a).
7. Because there was timely notification to the party’s attorney herein, there was timely notification to the party, and therefore as a matter of law there was no showing of excusable neglect within the meaning of Rule 73(a) which would permit an extension of time beyond the original 30 days.
8. The District Court’s granting of an additional 30 days within which to bring an appeal is void and since no appeal was taken within the original 30-day period, the Court of Appeals has no jurisdiction.
Because of the foregoing, plaintiff-appellant’s appeal is dismissed as untimely.
. September 24, 1966, was a Saturday. Therefore, Monday, September 26, 1966, became the last day of the 60-day period. See, Rule 6, Federal Rules of Civil Procedure, as amended, effective July 1, 1966.
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_suffic
|
E
|
What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule that there was insufficient evidence for conviction?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless".
GANADERA INDUSTRIAL, S.A., Appellant, v. John R. BLOCK, Secretary of Agriculture, et al.
No. 82-2366.
United States Court of Appeals, District of Columbia Circuit.
Argued May 31, 1983.
Decided Feb. 7, 1984.
As Amended Feb. 7, 1984.
Michael M. Eaton, Washington, D.C., with whom William Bruce Harper, Jr., Miami, Fla., was on the brief, for appellant.
Susan Sleater, Atty., Dept, of Justice, Washington, D.C., with whom J. Paul McGrath, Asst. Atty. Gen., Stanley S. Harris, U.S. Atty., Washington, D.C. (at the time the brief was filed), and Michael F. Hertz, Atty. Dept, of Justice, Washington, D.C., were on the brief, for appellees.
Before MIKYA, GINSBURG and BORK, Circuit Judges.
Opinion for the Court filed by Circuit Judge BORK.
BORK, Circuit Judge:
Since 1967, Ganadera Industrial, S.A. (hereinafter “GISA”) has exported beef and beef products to the United States from its plant in Northern Costa Rica, known as Establishment # 10. On October 1, 1982, Dr. Donald L. Houston, the authorized delegate of the Secretary of Agriculture, withdrew GISA’s privilege to import into the United States. Dr. Houston’s action was taken pursuant to regulations implementing the Federal Meat Inspection Act. On October 8, 1982, GISA brought an action in district court to enjoin the Secretary from interfering with the importation of its meat and meat products. GISA maintained that the Secretary exceeded his authority under the Federal Meat Inspection Act and applicable regulations, acted arbitrarily and capriciously, and also violated appellant’s right to advance notice and a hearing under the due process clause and under section 401 of the Act, 21 U.S.C. § 671 (1982). The district court denied a temporary restraining order, granted an expedited trial on the merits, and gave judgment for the Secretary. 556 F.Supp. 354. We affirm.
I.
The United States Department of Agriculture (“USDA”) does not inspect all imported meat put on the market, as it does with domestic products. Rather, the USDA inspects imported meat on a spot-check sampling basis at the port of entry. On occasion, it also sends its representatives to inspect foreign plants. Primarily, however, the USDA depends upon the relevant foreign government to guarantee the wholesomeness of its products. Where a question arises as to a product’s safety or the integrity of a particular plant, the USDA’s representatives discuss their reservations at a diplomatic level with representatives of the foreign government.
For some time prior to the action in question the Secretary of Agriculture had been concerned about the Costa Rican meat inspection program. In 1981 and early 1982, incidents involving adulteration, misbrand-ing, and false certification had occurred in several plants, including GISA’s plant. Inspectors found dirt in substitution for meat in boxes that originated in Establishment # 10. They also found counterfeit USDA import inspection stamps on containers of Costa Rican meat. These incidents led the United States to delist all meat and meat products coming from Costa Rica. After an extensive investigation by both the United States and Costa Rica, the United States, in April 1982, lifted the ban on importation from Costa Rica. GISA then resumed shipping beef to the United States and continued until sometime in June, the month when it traditionally stopped operations for the dry season.
In September, 1982, Dr. Houston decided that GISA should again be delisted. One factor leading to his decision was the indictment in Florida of Miguel Rodriguez, chairman of the board and controlling shareholder of GISA. The charges that the federal grand jury brought against Rodriguez included importation of adulterated meat and use of a counterfeit United States Department of Agriculture stamp. Although the meat involved had been imported through a Miami concern, it either originated in or was handled by Establishment # 10. Brief for the Appellees at 12; J.A. at 127. There was thus a clear link between Establishment # 10 and these serious violations of United States laws designed to prevent the importation of adulterated or misbranded meat. Prior to withdrawing the importation privilege, Dr. Houston expressed his concerns to the Costa Rican government. The Costa Rican government reported that it lacked the authority to take any action against Establishment # 10. Dr. Houston then informed GISA that its privilege to import would be withdrawn until such time as it removed Rodriguez from his management position and from control of GISA through a voting trust. Pending resolution of the criminal charges, Dr. Houston also required that a Costa Rican government overseer be placed full time in Establishment # 10. After the controlling shareholder of GISA complied with these conditions in mid-November, 1982, the Department of Agriculture lifted the import ban.
II.
The appellees allege that this case is moot because GISA is presently permitted to import into the United States, “is not threatened with a ban, and seeks no further judicial relief on its own behalf.” Brief for the Appellees at 15 (citations omitted). The appellees argue that there “is no longer any remedy for the Court to grant even if GISA could prevail.” Id. at 19. We are unpersuaded that this case is moot. Even though GISA is currently allowed to import, it is suffering an ongoing harm. As a result of the conditions imposed by the Department of Agriculture, GISA must pay for an “intervenor” to supervise its operations. The Department’s conditions also deprive GISA of any aid that Rodriguez might be able to render it. GISA has sued to have the delisting enjoined, and while it is true that GISA is now listed, it is also subject to conditions. These conditions would fall if GISA were to prevail in this litigation.
Appellees’ other threshold contention — that the Secretary’s action is one wholly committed to agency discretion — is easily dismissed. The Administrative Procedure Act provides that the actions of each authority of the United States government are subject to judicial review except where review is prohibited by statute or where “agency action is committed to agency discretion by law.” 5 U.S.C. § 701(a)(2) (1982). Neither of these exceptions applies in this case. There is no showing of a legislative intent to foreclose judicial review. Nor does the Secretary’s decision fall within the “very narrow exception” for action “committed to agency discretion.” See Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 410, 91 S.Ct. 814, 820, 28 L.Ed.2d 136 (1971). This exception is not relevant where there is law to apply in reviewing the administrator’s action. The Federal Meat Inspection Act of 1967, 21 U.S.C. § 601 et seq. (1982), and regulations made pursuant to it set forth standards such that the Secretary’s discretion is not boundless.
III.
Section 20 of the Federal Meat Inspection Act of 1967,21 U.S.C. § 620 (1982), provides in part:
(a) No carcasses, parts of carcasses, meat or meat food products ... shall be imported into the United States if such articles are adulterated or misbranded and unless they comply with all the inspection, building, construction standards, and all other provisions of this act and regulations issued thereunder applicable to such articles in commerce within the United States.
Regulation 9 C.F.R. § 327.2(a)(3) (1983), implementing this Act, provides in pertinent part:
Notwithstanding certification by a foreign official, the Administrator may, at his discretion, terminate the eligibility of any foreign establishment for importation of its products into the United States if he has information that such establishment does not comply with the requirements listed in paragraphs (a)(2)(i) and (ii) of this section or if he cannot obtain current information concerning such establishment.
The general provision (h) of 9 C.F.R. § 327.2(a)(2)(ii) refers, inter alia, to the requirement of 21 U.S.C. § 602 (1982) that all meat be “wholesome, not adulterated, and properly marked, labeled, and packaged”; and to the requirements of 21 U.S.C. § 620(a) and (b), and 9 C.F.R. § 327.3(a) (1983) that imported products, specifically, shall not be misbranded or adulterated.
The appellant contends that in withdrawing its importation privileges the Secretary exceeded his authority under section 20 of the Federal Meat Inspection Act and the regulations. In GISA’s view, the indictment of Rodriguez constituted the “primary, if not the sole, reason for the Administrator’s action.” Reply Brief for Appellant at 20. Neither the Act nor USDA regulations, GIS A contends, authorize the delisting of a company on this basis, especially where, as here, the plant has been in compliance with all regulations and has an exemplary performance record both at the time of delisting and for at least six months prior to that time. Id. at 19. GISA maintains that the Act allows the USDA to delist a foreign plant only when that plant’s products fail to meet a specific provision of the Act. Brief for Appellant at 26.
We find appellant’s view to be unsupported. The legislative history strongly suggests that Congress intended that the Secretary err on the side of preventing importation in enforcing the standards of the Act. See, e.g., 113 Cong.Rec. 33,878-79 (1967). By endowing the Secretary with this authority, Congress sought both to protect American consumers and to ensure equitable treatment for domestic producers. Id. In a larger sense, the inspection system for imported products, which is essentially the system that Congress contemplated in 1967, makes plain that GISA’s interpretation of the legitimate bases for delisting a foreign plant is unduly restrictive. During the debate about the 1967 amendments to the Federal Meat Inspection Act, the Senate took for granted that federal inspectors would not inspect foreign plants directly. S.Rep. No. 799, 90th Cong., 1st Sess. 12 (1967), U.S.Code Cong. & Admin.News 1967, p. 2188. Rather, the Senators assumed that the USDA would rely heavily on assurances from foreign governments, together with sample checking by United States veterinary officers. Id.; 113 Cong.Rec. 33,876 (1967). Under this system a long time might elapse before the USDA discovered a specific practice of adulterating meat. A narrow interpretation of the Secretary’s powers, such as the one GISA espouses, would eliminate the Secretary’s ability to protect consumers from adulterated imported meat where no single piece of evidence would warrant delisting but where taken together the evidence raises serious doubts as to the products’ wholesomeness. The realities of the situation thus require that the Secretary have power to bar importation where he has sufficient reason to doubt that the meat complies with the standards of the Act. The statutory language will bear such an interpretation and the legislative history supports it.
Just as we reject GISA’s contention that the Secretary exceeded his authority under the statute, so also we decline to accept appellant’s similar argument as to the regulation. A court will accept the agency’s interpretation of its regulation provided the interpretation “does not do violence to the language of the regulation itself.” Udall v. Tallman, 380 U.S. 1, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965); Puerto Rico Maritime Shipping Authority v. Federal Maritime Commission, 678 F.2d 327, 345 (D.C.Cir.), cert. denied, 459 U.S. 906, 103 S.Ct. 210, 74 L.Ed.2d 167 (1982). Accord Taylor v. Department of the Army, 684 F.2d 99, 104 (D.C.Cir.1982). Here we do not believe that the USDA’s interpretation does violence to the language of the regulation.
Nor do we find that the Secretary’s action was arbitrary and capricious. The record shows that Dr. Houston delisted GISA on the basis of three principal factors: (1) repeated prior instances of misbranding, adulterations, and false certification involving Costa Rican plants, including GISA; (2) the indictment of Rodriguez, chairman of the board and controlling shareholder of GISA, on charges, inter alia, of importing unwholesome meat that either originated in or was handled by Establishment # 10 and use of a counterfeit USDA “stamped and passed” stamp; and (3) the Costa Rican government’s statement that it lacked the authority to prevent GISA from exporting. We think that these facts brought the decision to withdraw GISA’s importation privilege within Dr. Houston’s discretion. His action in delisting GISA cannot, therefore, be characterized as arbitrary and capricious.
IV.
Appellant's procedural challenges to the Secretary’s action are likewise merit-less. First, GISA’s due process argument must fail because GISA has no constitutionally-protected right to import into the United States. The Supreme Court has stated:
[N]o one can be said to have a vested right to carry on foreign commerce with the United States.
The Abby Dodge, 223 U.S. 166, 176, 32 S.Ct. 310, 313, 56 L.Ed. 390 (1912); see Norwegian Nitrogen v. United States, 288 U.S. 294, 318-19, 53 S.Ct. 350, 359, 77 L.Ed. 796 (1933). The statute, 21 U.S.C. § 620, also affords no entitlement; it is exclusively prohibitory in nature. Since it has no constitutionally-protected property interest, GISA enjoys no right to advance notice and a hearing.
In advancing its procedural claims GISA also alleges that appellees failed to comply with section 401 of the Act, 21 U.S.C. § 671 (1982), in basing their delistment on the mere indictment of Dr. Rodriguez. Section 401 provides that the USDA shall impose sanctions for criminal acts only after it determines, subsequent to a hearing, that someone responsibly connected with the company has been convicted of a felony or multiple lesser food-related crimes. Section 401 concerns the procedures that the Secretary must afford a company before he withdraws inspection services. Foreign corporations have never been subject to regular USDA inspection; section 401 necessarily applies only to domestic producers. Under the regulation, “reasonable notice” must be given not to the foreign plant but “to the foreign government.” It is questionable whether appellant can enforce that requirement. In any event, the Department of Agriculture did provide such notice to the government of Costa Rica.
The judgment of the district court is accordingly
Affirmed.
. The standard that the government urges, an “any doubt” standard, would seem to give undue importance to a phrase used by one Senator during legislative debate.
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_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.
D. W. SNELL, Appellee, v. QUALITY MOBILE HOME BROKERS, INC., d/b/a A to Z Mobile Homes, Appellant.
No. 13613.
United States Court of Appeals, Fourth Circuit.
Argued Feb. 4, 1970.
Decided April 6, 1970.
Charles M. Gibson, Charleston, S. C. (Coming B. Gibbs, Jr., and Gibson, Gibbs & Krawcheck, Charleston, S. C., on brief), for appellant.
John M. Bleeeker, Jr., Charleston, S. C., for appellee.
Anastasia T. Dunau, Atty., Dept, of Labor (L. H. Silberman, Solicitor of Labor, Bessie Margolin, Associate Solicitor, Beverley R. Worrell, Regional Solicitor, and Carin Ann Clauss, Atty., Dept, of Labor, on brief), for amicus curiae.
Before HAYNSWORTH, Chief Judge, and WINTER and BUTZNER, Circuit Judges.
BUTZNER, Circuit Judge.
D. W. Snell brought this action against Quality Mobile Home Brokers, Inc., his former employer, to recover unpaid overtime wages and liquidated damages under the Fair Labor Standards Act. From a judgment in Snell’s favor, Quality appeals arguing that Snell was exempt from the overtime provisions of the Act because he was a “mechanic primarily engaged in * * * servicing * * * trailers” within the meaning of 29 U.S.C. § 213(b) (10) (Supp.1970).
For reasons that differ slightly from those expressed by the district judge, we conclude that the exemption does not apply to Snell, and consequently we affirm the judgment in his favor.
Quality operates eight lots at which it sells new and used mobile homes. These vehicles are not ordinary house trailers. Mobile homes range in width from 12 to 24 feet and may be more than 55 feet long. They contain full living accommodations and are intended to be permanent residences. While they can be towed over the road, they are so large that they require specially equipped trucks or tractors. They can be moved only during daylight hours and each trip requires a special highway permit. After delivery, they are connected to water, sewage, and electrical utilities.
From August 1967 until August 1968, Quality employed Snell at its Charleston, South Carolina, lot as its service and delivery man. Snell’s duties can be divided into four categories: (1) preparation of the mobile homes for sale; (2) towing them to purchasers’ sites, and towing used homes back to Quality’s lots; (3) clearing sites, preparing foundations, setting mobile homes in position, and connecting them to utilities; and (4) servicing and repairing furnaces, air conditioners, and appliances in mobile homes previously sold and delivered. His work did not require any special mechanical training, but it involved a wide variety of skills including plumbing, carpentry, electrical work, truck driving, and appliance repair.
The district court held that a mobile home is not a trailer and Snell was not a mechanic within the meaning of the exemption. Quality urges us to reverse the district court on both scores. While there is considerable merit to the conclusion reached by the district court, we will, as Snell urges, adopt a middle ground the Secretary of Labor suggests in his brief as amicus curiae.
The Secretary ascribes to mobile homes a dual identity. He recognizes them as trailers for the purposes of the exemption to the extent that they are transported from place to place on their own wheels and suspension systems. But when a mobile home has been delivered to its site, mounted on a base, and connected to utilities, he argues, it loses its character as a trailer. Thus, while Snell was servicing the mobile homes on his employer’s lot and preparing them for sale, the Secretary and Snell concede that he was a get-ready mechanic within the meaning of the exemption. However, while he was hauling the mobile home over the highway for delivery to the site, the Secretary continues, he was not a mechanic but instead was a truck driver. When he permanently installed the mobile home on its site and subsequently made service or repair calls, the Secretary says he was engaged in construction work and servicing home appliances.
The Secretary’s position accords with the maxim that exemptions from the Act are to be narrowly construed. Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 392, 80 S.Ct. 453, 4 L.Ed.2d 393 (1960). And it rationally complements the 1966 extension of the Act to additional construction workers.
The Act does not define “mechanic” or “trailers,” but it is apparent from its language and from the legislative history that Congress did not intend to exempt an employee who was primarily engaged in truck driving, construction work, or servicing appliances. Prior to 1966, the Act exempted all employees of automobile, truck, and farm implement dealers. The 1966 exemption named only three specific classes of employees — salesmen, partsmen, and mechanics. As originally proposed, the exemption applied only to selling and servicing automobiles, trucks, farm inl-plements, and aircraft, but an amendment providing for the inclusion of trailers was adopted on the floor of the House. Thus it is plain that Congress intended to bring within the exemption mechanics who performed the type of work on trailers that other mechanics performed on automobiles, trucks, farm implements, or aircraft. We conclude, therefore, that only when Snell worked as a get-ready mechanic was he performing an exempt job. His duties as a truck driver, construction worker, and appliance serviceman did not qualify him for exemption.
Snell’s exemption, thus, depends on whether he was, in the language of the statute, “primarily engaged” as a mechanic. The record discloses that this work occupied a minor part of his time. His chief occupation was driving a truck to deliver the mobile homes, setting them up at the sites, and subsequently servicing them. Consequently, he was not exempt from the overtime provisions of the Act.
Finally, Quality asserts 29 U.S. C. § 260 relieves it of liability for liquidated damages. Quality, however, in addition to failing to pay overtime wages, consistently underpaid Snell by wrongfully refusing to credit him for all of the hours he worked. Moreover, Quality’s assertion that it relied on a letter from the Wage and Hour Division to an official of the Mobile Home Dealers Association is not supported by the record. The district judge properly awarded liquidated damages and attorney’s fees. Wright v. Carrigg, 275 F.2d 448 (4th Cir. 1960).
Affirmed.
. Title 29 U.S.C. § 213(b) (10) (Supp. 1970) provides:
“(b) The provisions of section 207 [overtime pay] of this title shall not apply with respect to—
# >¡C if! S}5 5je
“(10) any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles, trailers, trucks, farm implements, or aircraft if employed by a nonmanufacturing establishment primarily engaged in the business of selling such vehicles to ultimate purchasers; * *
. Quality relies on Wirtz v. Louisiana Trailer Sales, Inc., 294 F.Supp. 76 (E.D.La.1968). We agree with this case to the extent that it exempts a get-ready mechanic who works on mobile homes, but we disagree with its exemption of an employee who services mobile homes after they have been installed on purchasers’ sites. Quality also relies on a number of zoning eases which hold mobile homes to be trailers. We find this approach to the problem to be inconclusive, for a number of other cases hold that they are not trailers. Decision turns on the precise language of the zoning ordinance and the use of the mobile home. Compare City of Rutland v. Keiffer, 124 Vt. 357, 205 A.2d 400, 403 (1964) with In re Willey, 120 Vt. 359, 140 A.2d 11, 14 (1958).
. The Dictionary of Occupational Titles, p. 491, summarizes the duties of a get-ready mechanic as follows: “Inspects and services new automobiles on delivery to dealer and makes minor repairs or adjustments to place vehicle in saleable condition.”
. E. g. 29 U.S.C. § 203(s) (3) (Supp. 1970). See U.S.Code Cong. & Admin. News, 89th Cong., 2d Sess., pp. 3006, 3008, 3028 (1966). The Secretary’s ami-cus curiae brief states that in 1968 mobile homes accounted for approximately 25% of all sales of new homes and more than 75% of those costing less than $15,000.
. H.R.Rep. No. 1366, 89th Cong., 2d Sess. 43 (1966), defines “mechanic” as follows:
“The term ‘mechanic’ is intended to include all employees doing mechanical work, such as get-ready mechanics, automotive, truck, farm implement, or aircraft mechanics, body or fender mechanics, used car reconditioning mechanics, and wrecker mechanics.”
. See 29 U.S.C. § 213(a) (19), which was superseded by the 1966 amendment, 29 U.S.C. § 213(b) (10) (Supp. 1970).
. 112 Cong.Rec. 11,403 (1966).
. The Wage-Hour Administrator has held “primarily engaged” to mean more than 50% of the employee’s hours of work. See 91 WHM 931 (1967).
. Title 29 U.S.C. § 260 provides in part:
“[I]f the employer shows to the satisfaction of the court that the act or omission giving rise to [an action under the Act] was in good faith and that he had reasonable grounds for believing that his act or omission was not a violation of the Fair Labor Standards Act of 1938, as amended, the court may, in its sound discretion, award no liquidated damages * *
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_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.
Brian VUKADINOVICH, Appellant, v. Richard ZENTZ, Ronald Kurmis, John Ross, William Collins, and City of Valparaiso, Appellees.
No. 92-2957.
United States Court of Appeals, Seventh Circuit.
Submitted April 2, 1993.
Decided June 9, 1993.
Brian Vukadinovieh, Wheatfield, IN (submitted for appellant pro se).
William W. Kurnik (submitted), Kurnik, Cipolla, Stephenson & Barasha, Arlington Heights, IL, for defendants-appellees.
Before POSNER and EASTERBROOK, Circuit Judges, and TIMBERS, Senior Circuit Judge.
The Honorable William H. Timbers, Senior Circuit Judge, United States Court of Appeals for the Second Circuit, sitting by designation.
TIMBERS, Senior Circuit Judge.
Appellant Brian Vukadinovieh appeals from a judgment entered on a jury verdict in the Northern District of Indiana, James T. Moody, District Judge, finding in favor of appellees, City of Valparaiso, and several of its police officers, in a civil rights action commenced by Vukadinovieh pursuant to 42 U.S.C. § 1983 (1988).
On appeal, Vukadinovieh asserts that numerous errors committed by the court during his trial warrant a reversal of the judgment and a new trial.
For the reasons that follow, we reject Vu-kadinovich’s claims and we affirm the judgment in all respects.
I.
We summarize only those facts and prior proceedings believed necessary to an understanding of the issues raised on appeal.
This appeal arises from a lengthy history of disputes between Vukadinovieh and the Valparaiso, Indiana, (City) police department. The troubles began in September 1981 when Vukadinovieh was arrested for disorderly conduct by Valparaiso police officers William Collins and Cosmo Hernandez. At his trial, Vukadinovieh was found not guilty. He then commenced an action against the officers in the state court, alleging false arrest and excessive use of force. The case was settled before trial. In March 1983, Collins again arrested Vukadinovieh. After the charges were dismissed, Vukadino-vich commenced another action against Collins, alleging excessive use of force. This case also was settled before trial. On September 26, 1984, Vukadinovieh filed a complaint with Valparaiso Police Chief Richard Buchanan, claiming that he was being harassed by Valparaiso police officers. Buchanan assigned an officer to investigate the allegations. When the officer concluded that the claim was unfounded, the complaint was dismissed.
On October 15,1986, Officer Richard Zentz pulled Vukadinovieh over for driving without his headlights on after dusk. A standard computer check of Vukadinovieh’s date of birth and social security number revealed that his driver’s license had been suspended because of his numerous traffic violations. Zentz arrested Vukadinovieh for driving with a suspended license and took him into custody. Vukadinovieh recorded on tape the conversation that occurred during this arrest. The charge against Vukadinovieh eventually was dismissed.
On November 3, 1986, while on patrol, Zentz observed a truck speeding. Although he did not have a radar device, Zentz was able to estimate the truck’s speed based on his pursuit of it. Zentz pulled the truck over. He approached the truck to issue a citation and recognized Vukadinovieh as the driver. Vukadinovieh remarked that he was not going to stick around, restarted the truck, and pulled away. Zentz returned to his patrol car and summoned assistance. Officers Ronald Kurmis and John Ross answered the call. They followed Vukadinovieh to his residence where, despite his forceful resistance, they handcuffed him and put him in a patrol car. Vukadinovieh was taken to the police station where he was charged with speeding, fleeing, resisting arrest, and battery. The arrest report was reviewed and signed by Officer Collins.
When Vukadinovieh arrived at the police station on this occasion, he began complaining of pains and was taken to a hospital. Upon returning from the hospital, Vukadino-vich claimed that Officer Zentz had gone through his personal belongings and had stolen $500 from his wallet. An employee responsible for inventorying and safekeeping prisoners’ property testified, however, that there was no money in Vukadinovich’s wallet when he arrived at the police station. The charges arising from this arrest eventually were dismissed.
To review and investigate citizen complaints against its police officers, the City has an internal review board comprised of officers. The City also has a Board of Works to handle disciplinary actions brought' against its officers. Harassment complaints, however, are not reviewed immediately by any board. Instead, they are investigated by an officer who determines whether there is sufficient cause to investigate further.
On October 6, 1988, Vukadinovieh commenced the instant § 1983 action against officers Zentz, Kurmis, Ross, Collins, Hernandez, and Wheatfield, Indiana police officer Paul Westmoreland. Vukadinovieh also named the City as a defendant. Vukadino-vich alleged that the officers conspired to deprive him of his constitutional rights, in retaliation for his two actions against Officer Collins. Vukadinovieh further alleged that his civil rights were violated during his arrests on October 15 and November 3 and by Officer Zentz’s alleged theft of $500 from his wallet while he was in custody following the November 3 arrest. Vukadinovieh maintained that the City was aware of its officers’ campaign of harassment, yet did nothing to prevent it.
On December 8, 1989, the court entered summary judgment in favor of officers Hernandez and Westmoreland on the ground that there was insufficient evidence to establish that either violated or entered into a conspiracy to violate Vukadinovich’s constitutional rights. A jury trial began on March 11, 1991 at which Vukadinovieh proceeded pro se. At the close of Vukadinovich’s case, appellees moved for a directed verdict. The court denied this motion. Appellees renewed their motion for ‘ a directed verdict at the close of all the evidence. The court granted this motion in part, finding that (1) there was probable cause to arrest Vukadinovieh on November 3, 1986; (2) there was insufficient evidence to establish that Zentz took or had access to the $500 alleged to have been stolen; (3) there was no evidence establishing a custom or practice by the City of tolerating deprivations of Vukadinovich’s rights; and (4) the evidence was insufficient to link Officer Collins to the conspiracy. On March 18, 1991, the jury returned a verdict in favor of appellees on the remaining claims. All parties filed post-trial motions. In an order dated June 29, 1992, the court denied all of these motions.
On appeal, Vukadinovieh seeks reversal of the judgment entered on the jury’s verdict and a new trial on the ground that the court committed numerous errors during his trial.
II.
First, Vukadinovieh contends that the court improperly excluded from evidence at trial the audiotape recording of his October 15 arrest. Since a court has broad discretion in deciding whether to admit tape recordings, we will overturn its decision only in extraordinary circumstances. United States v. Jewel, 947 F.2d 224, 228 (7th Cir. 1991). Further, where the recording contains inaudible or unintelligible portions, the decision whether to admit it in evidence is committed to the sound discretion of the trial court. United States v. Zambrano, 841 F.2d 1320, 1337 (7th Cir.1988). Here, Vukadinovich concedes that the tape is partially inaudible. Moreover, he has not convinced us that there were extraordinary circumstances to support its admission. We hold that the court did not abuse its discretion in excluding the tape.
While Vukadinovieh correctly states that the parties included the tape recording in the pretrial order and that appellees failed to object to its inclusion as required by Local Rule 21(f)(6), the court’s decision to exclude the tapes at trial nevertheless was proper. Indeed, we are reluctant to “interfere with the trial court’s determination not to hold the appellee[s] to the pretrial order unless there was a clear abuse of discretion or manifest injustice”. Sadowski v. Bombardier, Ltd., 539 F.2d 615, 621 (7th Cir.1976); see also Fed.R.Civ.P. 16(e). While the instant ease is somewhat unique since it involves the exclusion of a document listed in a pretrial order rather than the usual situation involving the introduction of an unlisted document, we perceive no injustice resulting from our reluctance to interfere with the court’s decision to alter the pretrial order.
To determine whether the court abused its discretion in departing from its pretrial order, we examine the following factors: (1) prejudice to the opposing party; (2) ability of the opposing party to cure the effects of any prejudice; (3) disruption of the orderly and efficient trial of the case; and (4) bad faith in the party’s failure to adhere to the pretrial order. Smith v. Rowe, 761 F.2d 360, 365 (7th Cir.1985). Here, Vukadinovieh claims that he was prejudiced because appellees’ late objection prevented him from calling linguistic experts to analyze the tape. However, since the court determined that the tape was inaudible, its exclusion did not prejudice Vukadinovieh. United States v. Vega, 860 F.2d 779, 790 (7th Cir.1988) (tape inadmissible where “unintelligible portions are so substantial as to render the recording as a whole untrustworthy”) (citation omitted). Further, to admit both the tape and expert testimony would have disrupted the efficient trial of the ease. Finally, there is no evidence of bad faith on the part of defense counsel in not adhering to the pretrial order. Accordingly, since Vukadinovieh does not satisfy the factors set forth in Smith, supra, and since, even if the tape was improperly excluded, he cannot demonstrate that it was more than harmless error, Fed.R.Evid. 103, we hold that the court did not abuse its discretion in departing from its pretrial order.
Second, Vukadinovieh contends that the court erred in allowing appellees to use unsigned depositions at trial, in violation of Fed.R.Civ.P. 30(e). Vukadinovieh, however, fails to recognize that the use of unsigned depositions at trial constitutes harmless error unless he can show that there were particular inaccuracies in the depositions or that he was prejudiced by their use at trial. United States v. Campbell, 845 F.2d 1374, 1379 (6th Cir.), cert. denied, 488 U.S. 908 (1988). Here, Vukadinovieh has failed to show what inaccuracies, if any, appeared in the depositions. He also has failed to show how the use of the depositions prejudiced him. Although it may be said that the court improperly, admitted unsigned depositions, doing so constituted at worst harmless error.
Third, Vukadinovieh contends that the court erred in denying his post-trial Fed. R.Civ.P. 60(b) motion to vacate the judgment and impose sanctions on the City for withholding evidence in violation of a court order. In particular, Vukadinovieh asserts that the City did not comply with the court’s order to submit for in camera inspection the officers’ personnel files. Under Rule 60(b), a court is permitted to grant relief only in “exceptional circumstances”. United States v. One 1979 Rolls-Royce, 770 F.2d 713, 716 (7th Cir. 1985). Further, a decision not to grant a Rule 60(b) motion will be reversed only where the court abused its discretion. Simmons v. Gorsuch, 715 F.2d 1248, 1253 (7th Cir.1983). To prevail, Vukadinovieh bears the burden of showing that the City wrongly withheld evidence, id., and that the evidence probably would have produced a different result at trial. Bradley Bank v. Hartford Accident & Indem. Co., 737 F.2d 657, 662 (7th Cir.1984). Here, Vukadinovieh failed to adduce any evidence that the City deliberately or wrongfully withheld evidence. Moreover, Vukadinovieh has not shown that the evidence allegedly withheld would have produced a different result at his trial. Indeed, the information sought by Vukadino-vich pertained to the City’s liability which, since the jury found for the individual officers, is irrelevant. City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986) (damages not available against municipality where jury has concluded that its officers inflicted no constitutional harm); Tom v. Voida, 963 F.2d 962, 962 (7th Cir.1992) (same). We hold that the court did not abuse its discretion in denying Vukadinovich’s Rule 60(b) motion.
Fourth, Vukadinovich contends that the court erred in fading to instruct the jury to disregard its previous rulings that dismissal of the charges against Vukadinovich arising from his October and November arrests were irrelevant. This claim clearly lacks merit. Vukadinovich never requested that the court instruct the jury to disregard its prior rulings. In view of Vukadinovich’s failure to object at trial, we need not consider this claim on appeal. Further, even if we were to consider this claim, the court corrected itself by. allowing a stipulation to be entered in evidence stating that the criminal proceedings arising from .both arrests had been dismissed. We hold that the court properly informed the jury that the court’s prior rulings were to be disregarded.
Fifth, Vukadinovich contends that the court erred in entering a directed verdict on the ground that Officer Zentz had probable cause to arrest him on November 3, 1986. We disagree. Since Zentz followed Vukadinovich for several seconds in a patrol car with a calibrated speedometer, no reasonable jury could conclude that he “guessed” at Vukadinovieh’s speed. Zentz also was aware that, when he arrested Vukadinovich two weeks earlier, he had been driving with a suspended license. Further, Vukadinovich’s flight from the scene and forceful resistance at his subsequent arrest gave Zentz probable cause to arrest him on November 3. We hold that the court properly concluded that no reasonable juror could find Vukadinovich’s November arrest unconstitutional. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 260 (1986).
Sixth, Vukadinovich contends that the court erred in directing a verdict on his due process claim against Officer Zentz for allegedly removing money from his wallet while he was in custody. This claim lacks merit. There is no evidence from which a jury reasonably could conclude that Zentz removed $500 from Vukadinovich’s wallet. The wallet was inventoried and kept in safekeeping by jail employees. These employees testified that there was no money in -Vukadinovich’s wallet when he was brought; to the jail and that no outside parties had access to his wallet. Indeed, the fact that Zentz may have had access to the wallet when he put a ticket in with Vukadinovieh’s personal belongings is merely a “scintilla” of evidence which is insufficient to defeat a motion for directed verdict. Anderson, supra, 477 U.S. at 261 (quoting Improvement Co. .v. Munson, 81 U.S. 442, 448 (1872)). Moreover, even if Zentz had stolen the money, it was the type of random and unauthorized act that does not violate due process since adequate post-judicial remedies were available to Vukadinovich. Hudson v. Palmer, 468 U.S. 517, 533-34 (1984). Specifically, Vukadinovich could have asserted a state law claim for conversion. Yoder Feed Serv. v. Allied Pullets, Inc., 171 Ind.App. 692, 359 N.E.2d 602 (1977). We hold that the court properly directed a verdict for Zentz on Vukadinovich’s due process claim.
Seventh, Vukadinovich contends that the court erred in directing a verdict for the City. He fails to recognize, however, that since the City’s § 1983 liability is derivative, it cannot be held liable where, as here, a jury returns a verdict in favor of its police officers. Tom, supra, 963 F.2d at 962. Further, in view of the mechanisms in place to investigate complaints, Vukadinovich has not shown that the City was delibérately indifferent to the constitutional rights of its citizens. City of Canton v. Hands, 489 U.S. 378, 389 (1989). Vukadinovich also has not demonstrated that the City perfunctorily dismissed meritorious citizen' complaints. Bryant v. Whalen, 759 F.Supp. 410, 412 (N.D.Ill.1991). We hold that the court properly directed a verdict for the City.
Eighth, Vukadinovich contends that the court erred in excluding pursuant to Fed. R.Evid. 403 complaints against the officers, newspaper articles, copies of actions against the City, and a copy of a departmental investigation report of Officer Zentz which occurred after the events here involved. A court’s decision to exclude evidence under Rule 403 is “generally accorded great deference because of [the court’s] first-hand exposure to the evidence and [its] familiarity with the course of the trial proceedings”. United States v. Briscoe, 896 F.2d 1476, 1498. (7th Cir.), cert. denied, 498 U.S. 863 (1990). Further, to be admissible, such evidence must pertain to events similar to the events in the instant case. Strauss v. City of Chicago, 760 F.2d 765, 769 (7th Cir.1985). Here, the prior complaints arose from dissimilar events and were filed for a number of different reasons. We hold that the court did not abuse its discretion in excluding this evidence.
Ninth, Vukadinovich contends that the court erred in directing a verdict for' appel-lees on his conspiracy claims. This contention also is without merit. To establish a conspiracy, Vukadinovich must have demonstrated an agreement and a deprivation of his constitutional rights. Scherer v. Balkema, 840 F.2d 437, 441-42 (7th Cir.), cert. denied, 486 U.S. 1043 (1988). Here, the jury found that the officers did not violate Vukadi-novich’s constitutional rights. Without such a violation, there can be no conspiratorial liability. We hold that the court properly directed a verdict on the conspiracy claims.
Tenth, Vukadinovich contends that the court erred in directing a verdict in favor of Officer Collins. This contention also is without merit. Collins’s role was limited to signing and reviewing the arrest report compiled by Zentz regarding the November arrest. Merely signing the police report absent actual knowledge of what took place is insufficient to establish a connection between Collins and the alleged deprivation of Vuka-dinovich’s constitutional rights. Lee v. Town of Estes Park, 820 F.2d 1112, 1116 & n. 3 (10th Cir.1987). We hold that the court properly directed a verdict in favor of Collins.
Eleventh, Vukadinovich contends that the court erred in dismissing his § 1983 and state law malicious prosecution claims. This contention also is without merit. At the jury instructions conference, Vukadinovich informed the court that his malicious prosecution claim was being asserted “per se” and was not based on his actions against Officer Collins. Standing alone, malicious prosecution is not actionable under § 1983. Maho-ney v. Kesery, 976 F.2d 1054, 1060-61 (7th Cir.1992). Here, Vukadinovich’s claim that his action was for malicious prosecution per se indicated that it stood alone. It is not actionable under § 1983. Further, Vukadi-novich’s state law malicious prosecution claim also was dismissed properly since appellees are immune under Indiana law. Ind.Code § 34-4-16.5-3(5) (1983).
Finally, Vukadinovich contends that the court erred in failing to give a more elaborate response to a question from the jury seeking clarification about the dates of certain photographs taken of Vukadinovich’s injuries. We disagree. Since the jury was confused by certain facts and not by legal principles, the court did not abuse its discretion in simply referring to its prior instructions in answering the jury’s question. United States v. Aubin, 961 F.2d 980, 983-84. (1st Cir.), cert. denied, 113 S.Ct. 248 (1992). Further, even if the court erred, Vukadino-vich has failed to demonstrate that the court’s response so prejudiced him as to constitute anything more than harmless error.
III.
To summarize:
We hold that the court did not commit any reversible errors during Vukadinovich’s trial. We affirm the judgment in all respects.
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_numresp
|
4
|
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.
Tedd BARTELS, Stanley Brodowski, and Anthony Carvalho, Appellants, v. SPORTS ARENA EMPLOYEES LOCAL 137, Howard Wise, William Eggeling, and New Jersey Sports & Exposition Authority.
No. 87-5512.
United States Court of Appeals, Third Circuit.
Submitted Pursuant to Third Circuit Rule 12(6) Jan. 22, 1988.
Decided Feb. 3, 1988.
Michael D. Schottland, Chamlin, Schott-land, Rosen, Cavanagh & Uliano, Freehold, N.J., for appellants.
James Katz, Tomar, Seliger, Simonoff, Adourian & O’Brien, Haddonfield, N.J., for appellees Sports Arena Employees Local 137, Howard Wise and William Eggeling.
OPINION OF THE COURT
Before GIBBONS, Chief Judge, and WEIS and GREENBERG, Circuit Judges.
GREENBERG, Circuit Judge.
This matter is on appeal from an order filed in the district court on June 30, 1987 dismissing this action with prejudice and granting motions by defendants for sanctions in the form of attorney’s fees against plaintiffs’ attorneys under Fed.R.Civ.P. 11 and Fed.R.Civ.P. 37.
The complaint was filed on May 19, 1986 by the firm of Chamlin, Schottland, Rosen, Cavanagh & Uliano on behalf of plaintiffs Tedd Bartels, Stanley Brodowski and Antone Carvalho, all members of Sports Arena Employees Local 137, against that union and two of its officers, Howard Wise and William Eggeling, and against the New Jersey Sports & Exposition Authority. In the first count plaintiffs alleged that the union was their bargaining representative with the Authority as successor to the Monmouth Park Jockey Club for the Monmouth Park Race Track. The count further set forth that as a result of a breach of the collective bargaining agreement, on or about May 7, 1984 plaintiffs were denied employment at the Park and that the union breached its duty to represent plaintiffs fairly and refused to process a grievance filed by Bartels regarding the work denial. As a result plaintiffs lost several months employment in the summer of 1984 and lost income and other benefits.
In their second count plaintiffs alleged that on or about May 24, 1985 they were again denied employment at Monmouth Park in direct violation of their rights by defendants’ breach of the collective bargaining agreement. They further asserted that the union failed to represent them properly and refused to take Bartel’s grievance to arbitration. In the third count plaintiffs charged that from May 5,1984 to May 7, 1984 and in May 1985 Wise and Eggeling willfully and maliciously conspired with agents of Monmouth Park to ignore the collective bargaining agreement, breached their obligations as union officers and tortiously interfered with plaintiffs’ contractual rights.
Following the filing of separate answers, one on behalf of the union and its officers, and the other by the Authority, the parties engaged in rather contentious discovery, the details of which need not be recounted. Then on December 24, 1986 plaintiffs filed a motion in the district court seeking an order dismissing the action without prejudice as to the union and its officers and with prejudice as to the Authority. In an affidavit attached to the motion a member of the Chamlin firm indicated that the orders were being sought as there were proof problems in the liability theories being asserted for breach of the duty of fair representation and that only the tortious interference with contractual rights claims which would be more properly advanced in state court merited pursuit. Thereafter the Authority filed a motion for costs and attorney’s fees under Fed.R.Civ.P. 11 and Fed.R.Civ.P. 37 and the union and its officers filed a motion to dismiss the complaint with prejudice and sought sanctions under Fed.R.Civ.P. 11.
Oral argument was held on the motions on February 2, 1987 following which the district judge ruled that the action was barred by the six months period of limitations set forth in DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983), for bringing actions against employers and unions for breach of a collective bargaining agreement by the employer and breach by the union of its duty of fair representation of the employee. The judge pointed out that the period of limitations runs from when it was apparent or should have been apparent that no action would be taken and that the plaintiffs should have known that the union was not going to take any action on their behalf no later than on May 1984 for the first event and May 1985 for the second. Thus, the first two counts were untimely as the complaint was filed May 19, 1986. The third count was barred as the judge held that the exclusive remedy for the wrongs alleged was the action for breach of the duty of fair representation. Accordingly, the judge ruled that the entire complaint would be dismissed with prejudice. The judge then said that he would enter an order for sanctions after the submission of affidavits but entered no order for dismissal.
Following the submission of various documents, including a certification of a member of the Chamlin firm in which he requested that if sanctions were to be imposed they be “awarded against our firm, and not against our clients” and in which he said “[fjrankly, I missed the six-month statute of limitations as it applied to this case, and as created by the decision of the United States Supreme Court in the Del-Costello case,” the judge filed a letter opinion on June 30, 1987 awarding costs and counsel fees of $3,503 to the union and $4,000 to the Authority. On the same day an order was filed denying plaintiffs’ motion for a voluntary dismissal without prejudice, granting defendants’ motions for dismissal with prejudice and requiring that plaintiffs’ attorneys pay the foregoing awards. On July 28, 1987 plaintiffs appealed from the order of June 30, 1987. The Chamlin firm did not join in the appeal and has not separately appealed.
Subsequently, the attorney for the Authority addressed a letter to the Chamlin firm suggesting that this court did not have jurisdiction as the appeal on the merits was untimely and plaintiffs lacked standing to appeal from an award of fees against their attorneys as they were not aggrieved by the order. A copy of the letter was sent to the Clerk of the Court. While it would have been a better procedure for the Authority to move to dismiss the appeal rather than simply writing the letter, inasmuch as the matters raised were jurisdictional we considered them and directed the parties to address letters to the court regarding these issues. After this direction the appeal as to the Authority was dismissed by stipulation; however jurisdictional questions remain inasmuch as the appeal continues against the union and its officers.
We deal first with the timeliness of the appeal on the merits. No order was entered on the court’s oral decision to dismiss the action on February 13, 1987. Rather the judge indicated that there would be a further decision on sanctions and the docket sheet in the district court indicated that an order was to be submitted. In fact, the order entered on June 30, 1987 reflected both the decision on the merits and the subsequent determination regarding sanctions. Inasmuch as the court on February 13, 1987 made it clear that further action was contemplated before a judgment was actually entered, we calculate the time for appeal on all issues from June 30,1987, the date that the order was entered. See Fed.R.Civ.P. 58; Lone Star Motor Import, Inc. v. Citroen Cars Corp., 288 F.2d 69, 73 n. 5 (5th Cir.1961); 6A Moore’s Federal Practice ¶ 58.05[2] (1986). Thus the appeal is timely. Fed.R.App.P. 4(a)(1).
Plaintiffs advance two contentions on appeal. They assert that the sanctions should not have been entered against their attorneys and argue that the complaint was timely. They do not suggest that the judge erred in holding that their only possible cause of action was for breach of the duty of fair representation and thus we will not consider that issue.
We will not review the imposition of sanctions as plaintiffs have no standing to appeal from the order providing for them as they were imposed only against the Chamlin firm. See Marshak v. Tonetti, 813 F.2d 13, 21-22 (1st Cir.1987). Further, it is clear that while there are variables as to when an attorney against whom a sanction has been imposed may do so, depending upon whether the underlying action is pending and whether the attorney is still of record in it, there is no doubt at all but that at some point an attorney subjected to a sanction may appeal. See Glaser v. Cincinnati Milacron, Inc., 808 F.2d 285 (3d Cir.1986); Eavenson, Auchmuty & Greenwald v. Holtzman, 775 F.2d 535 (3d Cir.1985); Eastern Maico Distributors v. Maico-Fahrzeugfabrik, 658 F.2d 944 (3d Cir.1981). See also 9 Moore’s Federal Practice ¶ 203.06 (1987). Accordingly, to the extent that plaintiffs appeal from the order for sanctions the appeal will be dismissed.
We do, however, consider whether the judge correctly held that the action was barred by the statute of limitations. In their brief plaintiffs correctly state that the “claim can be characterized as a hybrid § 301/fair representation claim.” DelCos-tello held that a hybrid claim under section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, against the employer for breach of the collective bargaining agreement and against a union for breach of the duty of fair representation is subject to the six months limitation period in section 10(b) of the National Labor Relations Act, 29 U.S.C. § 160(b), for bringing unfair labor practice charges before the National Labor Relations Board. Thus, this action is prima facie barred.
Plaintiffs seek to circumvent DelCostello in two ways. First, they point out that the N.L.R.B. will not assert its jurisdiction under section 8 of the National Labor Relations Act, dealing with unfair labor practices, 29 U.S.C. § 158, to consider charges of unfair labor practices in the horseracing industry. See 29 C.F.R. § 103.3 (1987). Second, they argue that the complaint was filed within six months of the actions’ accrual as their complaint was of a continuing nature as demonstrated by the circumstance that even after it was filed the union allegedly continued to act wrongfully toward them.
We find no merit in either of these contentions. There is no suggestion in Del- Costello that the Court’s decision was in any way tied to a consideration of whether the N.L.R.B. would exercise its jurisdiction over an unfair labor practice charge involving the subject matter of the complaint. Rather the Court looked to the similarity in the nature of claims that a union breached its duty of fair representation and engaged in unfair labor practices. 462 U.S. at 169-70, 103 S.Ct. at 2293-94. Further, DelCostello was based in part on the Court’s belief that adoption of a six months statute of limitations properly balanced the competing interests in labor management relations, the promotion of stable bargaining relationships and the finality of private settlements, against the employee’s desire to set aside what he considers was an unfair settlement under the collective bargaining system. DelCostello, 462 U.S. at 171, 103 S.Ct. at 2294. The importance of this policy is in no way lessened by the circumstance that the N.L.R.B. will not take jurisdiction over the dispute.
We see no merit to plaintiffs’ contention that because of the union’s allegedly ongoing wrongdoing, the complaint was timely. Regardless of what the union may or may not have done within the six months before the complaint was filed, the allegations in the complaint are clearly confined to events ending about one year before it was filed. Thus we have no occasion to consider whether claims otherwise barred continue to be viable if a breach of the duty of fair representations continues to within six months of the filing of a complaint.
In view of the aforesaid, insofar as plaintiffs appeal from the imposition of sanctions in the order of June 30, 1987, their appeal will be dismissed. To the extent that they otherwise appeal the judgment will be affirmed.
. It should be noted that when plaintiffs first sought representation from the Chamlin firm the six months limitation period had already expired.
. The order may have imperfectly reflected the motions filed as it appears that the authority did not move to dismiss. Thus it was apparently the judge’s intention to grant plaintiffs’ motion to dismiss as to the Authority with prejudice. In any event it is clear that the action was dismissed with prejudice as to all defendants. Plaintiffs do not contend that to the extent that the dismissal was predicated on the statute of limitations it should have been without prejudice on a theory that the court did not reach the merits of the case but merely held that a remedy was barred. See Osmundsen v. Todd Pacific Shipyard, 755 F.2d 730, 733 (9th Cir.1985). Rather they argue that the complaint was timely. See also Fed.R.Civ.P. 41(b).
. In this regard we note that as all proceedings in the district court were terminated by the order of June 30, 1987 which imposed the sanctions, there is no doubt that when plaintiffs appealed, the Chamlin firm could also have appealed.
. In view of this disposition we have not set forth the reasons for the court's imposition of sanctions.
.In fact Bartels did make a charge to the N.L.R. B. and was advised by an N.L.R.B. attorney by letter of February 19, 1986 that the Board "has determined that it will not assert its jurisdiction in proceedings under Section 8 of the Act which involve the horseracing industry."
Question: What is the total number of respondents in the case? Answer with a number.
Answer:
|
songer_genapel1
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant.
EUROPEAN ASIAN BANK, A.G., Plaintiff-Appellee, v. G. CROHN & COMPANY, Defendant-Appellant. G. CROHN & COMPANY, Third-Party Plaintiff, v. H. KHEMCHAND KUNDAMAL ENTERPRISES (HK), LTD. and H. Khemchand Kundamal Bros. (USA), Inc., Third-Party Defendants.
No. 1357, Docket 85-7250.
United States Court of Appeals, Second Circuit.
Argued June 7, 1985.
Decided July 31, 1985.
David B. Wolf, New York City (Walter, Consten & Schurtman, P.C., Gregory F. Hauser, New York City, of counsel), for plaintiff-appellee.
Martin Stein, New York City (Phillips, Nizer, Benjamin, Krim & Ballon, New York City, of counsel), for defendant-appellant.
Before LUMBARD, OAKES, and MES-KILL, Circuit Judges.
LOMBARD, Circuit Judge:
In this diversity ease, G. Crohn & Company (“Crohn”) appeals from a March 26, 1985 judgment of the Southern District of New York, after a bench trial before Charles L. Brieant, J., granting plaintiff bank recovery of $292,445.42 plus interest on a bill of exchange. Crohn claims 1) that the district court erred in finding that European Asian Bank, A.G. (“Eurasbank”) had become a holder in due course when it purchased a bill of exchange from third-party defendant H. Khemchand Kundamal Enterprises (HK), Ltd. (“Kundamal”); and 2) that Crohn had received no valid consideration when it accepted the bill, or, in the alternative, that Crohn should have been relieved of liability anyway due to Eundamal’s breach of promised performance. The parties agree that New York law governs this case.
Because we believe that Judge Brieant’s finding that Eurasbank gave credit to Kundamal when it purchased the bill of exchange was not clearly erroneous, see Fed. E.Civ.P. 52(a), we agree that Eurasbank became a holder in due course, and thereby was entitled to payment on the bill of exchange regardless of any defenses Crohn might have derived from its agreement with Kundamal. Consequently, we affirm the judgment.
I.
Shlomo Sulimani, Crohn’s chief executive officer, had engaged in the diamond business for 46 years, and, since 1962, had traded in Indian diamonds. The Kundamal family, which he had known for 25 years, had purchased some 100 shipments of diamonds from Crohn. In July 1983, in a telephone conversation with Hiro Panjabi, a member of the Kundamal family in Hong Kong, Sulimani agreed to purchase from Kundamal a shipment of full cut and single cut polished Indian diamonds. Kundamal would ship the diamonds from Bombay to New York. At the same time, Panjabi would send Crohn an invoice and a bill of exchange for 645,290 Swiss francs payable to Eurasbank, Kundamal’s Hong Kong bank. Sulimani agreed to sign and accept the bill once it arrived and thereby to obligate Crohn to pay Eurasbank the specified amount 180 days after acceptance.
Eurasbank purchased the bill of exchange from Kundamal on July 13, 1983. A Collection Order form from Eurasbank, dated July 13, 1983, shows that Kundamal instructed Eurasbank to apply the amount of the bill to certain “trust receipts” that Kundamal owed to Eurasbank and which the district court found to be antecedent debts. According to these instructions, the bank would give credit to Kundamal’s account and retire Kundamal’s outstanding debts.
The bank’s accounting treatment of the credit given to Kundamal is less than crystal clear. Eurasbank produced as evidence a page from a monthly statement used to report movements in an account. This exhibit indicates that, on July 13, 1983, Eurasbank credited Kundamal’s account by 645,-270 Swiss francs, the full amount of the bill of exchange. An exhibit introduced by Crohn, which shows a similar page from a second monthly statement, indicates that on the same date, Eurasbank debited a second Kundamal account in the same amount. Hans Kaebe, manager of the bank’s bills department, described this entry as a “bookkeeping requirement.”
Six days later, on July 19, 1983, the bank made additional debits, totalling the full 645,270 Swiss francs, this time to the “trust receipts” as Kundamal had instructed on the Collection Order form. These debits appear on the monthly statement exhibit introduced into evidence by Eurasbank. However, the “bookkeeping requirement” for these additional debits is not shown in the record. No corresponding credit appears on the second account, and Kaebe testified that the debit in that account has continued through the present.
The diamonds arrived in New York before the invoice and the bill of exchange. Kundamal instructed Eurasbank to direct its New York correspondent bank, Algemene Bank Nederland (“ABN”), to release the diamonds to Crohn upon receipt of the latter’s written undertaking to accept later the bill of exchange.
On July 18, 1983, Sulimani, on Crohn’s behalf, signed a promissory note payable to ABN in Swiss francs for the same amount as the bill of exchange. This note was intended to serve as a temporary substitute for the bill. Sulimani gave the note to ABN, which released the diamonds.
Two days later, on July 20, 1983, the day after Eurasbank had entered the additional debits in Kundamal’s “trust receipt” accounts, Crohn received the diamonds and the invoice. Sulimani inspected the diamonds and immediately rejected them as non-conforming goods. The district court found that the diamonds had half the value that Sulimani had expected.
Sulimani telephoned Hiro Panjabi in Hong Kong. They agreed that Sulimani would return the diamonds to Hiro’s brother, Anoop Panjabi, who headed the Kundamal operation in New York. Hiro Panjabi promised to “take care” of the ABN note.
Hiro Panjabi then contacted his brother in New York, and on July 21st the latter gave to Sulimani a promissory note for $305,824.65 (the U.S. dollar equivalent of Crohn’s Swiss franc note to ABN) due on January 15, 1984, three days prior to the due date on the ABN note. Anoop Panjabi accepted Crohn’s return of the diamonds at that time.
Neither Crohn nor Kundamal informed Eurasbank or ABN that Crohn had returned the diamonds. On or about August 2, 1983, ABN presented the bill of exchange to Crohn for acceptance. Sulimani again telephoned Hiro Panjabi who continued to promise to satisfy Kundamal’s debts to Eurasbank in Hong Kong if Crohn signed the bill of exchange which was payable to Eurasbank.
About August 6th, Sulimani signed and accepted the bill. Eurasbank still had no knowledge that Crohn had returned the diamonds and did not learn of Crohn’s accepting the bill until three months later on November 4, 1983.
Kundamal’s promissory note to Crohn was due January 15, 1984. Crohn’s payment on the bill of exchange was due the next month on February 6, 1984. Shortly before Kundamal’s note matured, Kundamal requested Crohn to extend the due date for sixty days to March 15, 1984. Crohn agreed, and received a similar extension from Eurasbank on the bill. Thus, Crohn remained able to collect on Kundamal’s promissory note prior to the due date of the bill.
About March 15, 1984, Kundamal failed to honor its promissory note. Crohn, in turn, failed to honor the bill of exchange when it became due.
Although Eurasbank could have reversed the credits it had given to Kundamal, the bank never did reverse the credits. But, even so, reversing the credits would have been futile because in May or June of 1984, Kundamal became insolvent.
II.
We agree with Judge Brieant that Eurasbank became a holder in due course.
The obligor on a bill of exchange may assert against a person who purchases the bill any defenses he may have against the bill’s drawer unless the purchaser has the rights of a holder in due course. See N.Y. U.C.C. § 3-306 (McKinney 1964). A holder in due course is a holder who takes the instrument for value, in good faith and without notice that it is overdue or has been dishonored or of any defense against or claim to it on the part of any person. See N.Y.U.C.C. § 3-302(1) (McKinney 1964). The parties do not dispute that Eurasbank took the bill in good faith and without notice of any claims or defenses. Crohn argues only that Eurasbank gave no value.
Judge Brieant found that Eurasbank had given value when it credited Kundamal’s account and applied the credit to retire the outstanding balances on Kundamal’s antecedent debts, which took the form of “trust receipts.” This transaction complied with one of the Uniform Commercial Code’s definitions of taking for value which states that “[a] holder takes the instrument for value ... when he takes the instrument in payment of or as security for an antecedent claim against any person whether or not the claim is due.” N.Y.U.C.C. § 3-303(b) (McKinney 1964). A bank can give value by taking a security interest in an instrument. See N.Y.U.C.C. § 4-209 (McKinney 1964). A bank has taken a security interest “in case of an item deposited in an account to the extent to which credit given for the item has been withdrawn or applied.” N.Y.U.C.C. § 4-208(l)(a) (McKinney 1964).
Crohn, however, argues that Eurasbank gave no value when it credited Kundamal’s account because it simultaneously debited a second account in the same amount, and thereby immediately reinstated the outstanding obligations. This debit on the second account remains, and was not reversed when Eurasbank later applied the credit to the “trust receipt” accounts.
Judge Brieant concluded that this remaining debit entry, as a “bookkeeping requirement,” could have shown “an asset account for an outstanding sight draft,” representing the funds Eurasbank could collect from Crohn. Although it would have been preferable for the district court to have had a more complete set of accounting entries with a more explicit explanation of their significance, we find that the evidence is more supportive than not of Judge Brieant’s determination. Consequently, we cannot say that his finding that Eurasbank applied the credit to Kundamal’s antecedent debts was clearly erroneous. See Fed.R.Civ.P. 52(a).
Crohn also argues that Eurasbank gave no value because it applied only a provisional credit to the antecedent debts. Printed language on the reverse of the bank’s Collection Order form states that:
... it is understood that such credit is conditional and is subject to collection and receipt by [the bank] of the requisite number of dollars; in the absence of such receipt and collection by [the bank], the undersigned [i.e. Kundamal] will, upon [the bank’s] demand reimburse [the bank] for the amount so advanced plus the agreed rate of interest for the time outstanding.
Judge Brieant found that such language made conditional the credit which Eurasbank applied to the antecedent debts. So, Crohn argues that, under Marine Midland Bank-New York v. Graybar Electric Co., 41 N.Y.2d 703, 363 N.E.2d 1139, 395 N.Y. S.2d 403 (1977), which states that “the giving of a provisional credit is not a parting with value under the Uniform Commercial Code,” id. at 712, 363 N.E.2d at 1145, 395 N.Y.S.2d at 409, Eurasbank should not have been found to be a holder in due course.
The holding in Marine Midland does not require us to decide against the bank in this case, because in Marine Midland, the bank could reverse the credit at any time, and, in fact did reverse the credit, id. at 712, 363 N.E.2d at 1145, 395 N.Y.S.2d at 409, whereas, Eurasbank could not have reversed the credit given to Kundamal until Crohn had defaulted on the bill of exchange.
In Marine Midland, a bank withdrew a check deposited into its client’s lockbox and unilaterally gave a credit to its client’s account which it then applied unilaterally by way of setoff to its client’s antecedent debts. Upon forwarding the check to the drawee bank for payment, the bank learned that the client’s customer had issued a stop payment on the check. The bank then reversed the credit and reinstated the debts. Meanwhile, the bank’s client had filed for bankruptcy. The bank then sued the client’s customer for payment and argued that it had become a holder in due course when it applied the credit to its client’s antecedent debts. See id. at 706-707, 863 N.E.2d at 1144, 395 N.Y.S.2d at 405-406.
Because the bank in Marine Midland could and did reverse the credit, it had neither bound itself to accept the credit risk of its client’s customer nor “made available” to its client the benefits of the credit. “Under this analysis the bank is in no worse position than any other creditor,” the Court of Appeals observed, “and the bank’s unilateral agreement to take the credit for the indebtedness, conditioned on payment of the check for which the credit was given, is recognized for what it was— an attempt to recoup its losses.” 41 N.Y.2d at 713, 363 N.E.2d at 1146, 395 N.Y.S.2d at 410.
Unlike the bank in Marine Midland, Eurasbank did not unilaterally apply the credit to Kundamal’s outstanding obligations. Indeed, Kundamal had expressly instructed the bank to use the credit in that manner. The printed language on the back of the Collection Order form does not say that Eurasbank had a unilateral right to reverse the entries at any time. At best, the language suggests that Kundamal’s customer’s default on the bill of exchange was a condition precedent to the bank’s seeking recourse against the bill’s drawer, Kundamal. In this context, the printed language merely expressed the rights which Eurasbank already would have been able to exercise under the Uniform Commercial Code. See N.Y.U.C.C. § 3-413(2) (McKinney 1964) (unless drawing without recourse, drawer remains liable for payment on dishonored draft); N.Y.U.C.C. § 3-507(2) (McKinney 1964) (“holder has upon dishonor an immediate right of recourse against drawers or indorsers”). Under provisions which seek to protect transferees and to encourage commercial transactions, it would make little sense if, to become a holder in due course, a transferee must discharge the transferor’s obligation.
In essence, to become a holder in due course by applying a credit to antecedent debts, the holder must have agreed to expose itself to the credit risk of the party obligated on the instrument taken in payment of the antecedent debts. As the bank in Marine Midland, when it first extended the credits, retained the right unilaterally to reverse the credits, it had refrained from exposing itself to the credit risk of its client’s customer. Thus, the position of the bank in Marine Midland did not necessitate according it full protection under the Uniform Commercial Code’s provisions for a holder in due course. See § 3-303 Official Comment 3. Had the bank learned that the item was not likely to be paid, it would not have had to sue on the instrument but could have rescinded the transaction at will. See id.
In contrast, Eurasbank did replace Kundamal with Crohn as the primary party to whom it looked to repay the debts originally owed by Kundamal. Had Eurasbank learned that the Crohn-Kundamal deal had gone amiss, it could not have revoked the credits at will, but still would have to wait for Crohn’s default, and thereby incur further risk of non-payment by either Crohn or Kundamal.
By applying a credit, which Eurasbank could not reverse at will, to reduce antecedent debts, Eurasbank’s transaction had the same practical effect, on the question of its being a holder in due course, as if the bank had made the credit available for “withdrawal as of right,” see N.Y.U.C.C. § 4-208(l)(b) (McKinney 1964); N.Y.U.C.C. § 4-213(4) (McKinney 1964), and thereby gave the right to Kundamal, itself, to draw down upon the credit and to apply the proceeds to retire the “trust receipts.”
As we agree with the district court that Eurasbank became a holder in due course and is entitled to payment from Crohn regardless of Crohn’s defenses, see N.Y.U. C.C. § 3-305 (McKinney 1964), we need not consider whether there is any merit to those defenses.
Crohn must be content with what relief it may obtain from Judge Brieant’s default judgment in Crohn’s favor against Kundamal.
Affirmed.
. Crohn is a, corporation organized and existing under the laws of the State of New York, with its principal place of business in New York City.
. Eurasbank is a stock corporation incorporated and existing under the laws of the Federal Republic of Germany (West Germany). Eurasbank has its principal place of business in Hamburg, West Germany, and maintains and operates a. registered branch in Hong Kong.
. Judge Brieant rendered a default judgment in favor of Crohn against third-party defendants H. Khemchand Kundamal Enterprises (HK), Ltd. of Hong Kong and H. Khemchand Kundamal Bros. (USA), Inc. of New York (“Kundamal”) for making no appearance in the case. This default judgment has no bearing on whether Crohn is liable to Eurasbank, and also presents no issues in this appeal.
Question: What is the nature of the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
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sc_decisiontype
|
B
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the type of decision made by the court among the following: Consider "opinion of the court (orally argued)" if the court decided the case by a signed opinion and the case was orally argued. For the 1791-1945 terms, the case need not be orally argued, but a justice must be listed as delivering the opinion of the Court. Consider "per curiam (no oral argument)" if the court decided the case with an opinion but without hearing oral arguments. For the 1791-1945 terms, the Court (or reporter) need not use the term "per curiam" but rather "The Court [said],""By the Court," or "By direction of the Court." Consider "decrees" in the infrequent type of decisions where the justices will typically appoint a special master to take testimony and render a report, the bulk of which generally becomes the Court's decision. This type of decision usually arises under the Court's original jurisdiction and involves state boundary disputes. Consider "equally divided vote" for cases decided by an equally divided vote, for example when a justice fails to participate in a case or when the Court has a vacancy. Consider "per curiam (orally argued)" if no individual justice's name appears as author of the Court's opinion and the case was orally argued. Consider "judgment of the Court (orally argued)" for formally decided cases (decided the case by a signed opinion) where less than a majority of the participating justices agree with the opinion produced by the justice assigned to write the Court's opinion.
CITY OF MONROE et al. v. UNITED STATES
No. 97-122.
Decided November 17, 1997
Per Curiam.
The United States claims the city of Monroe, Georgia, did not seek preclearance for majority voting in mayoral elections, as required by § 5 of the Voting Rights Act of 1965, 79 Stat. 439, as amended, 42 U. S. C. § 1973c. The Government seeks to enjoin majority voting and to require Monroe to return to the plurality system it had once used. A three-judge District Court for the Middle District of Georgia agreed with the Government and granted summary judgment. 962 P. Supp. 1501 (1997). The District Court rejected Monroe’s claim that the Attorney General’s preelearance of a 1968 statewide law encompassed Monroe’s adoption of a majority system. On Monroe’s motion, this Court stayed enforcement of the judgment. 521 U. S. 1138 (1997). The ease is now on appeal, and the judgment must be reversed.
I
The parties agree upon the facts. Until 1966, Monroe’s city charter did not specify whether a candidate needed a plurality or a majority vote to win a mayoral election. In practice, the city used plurality voting in its elections until 1966 and majority voting thereafter.
In 1966, the General Assembly of Georgia amended the city’s charter to require majority voting in mayoral elections. 1966 Ga. Laws 2459. Because Monroe is a jurisdiction covered by § 5 of the Voting Rights Act, the change had to be preeleared. Georgia or Monroe could have sought preelearance by submitting the change to the Attorney General or seeking a declaratory judgment from the United States District Court for the District of Columbia. Neither did, so the 1966 charter amendment was not precleared.
In 1968, the General Assembly passed a comprehensive Municipal Election Code (1968 code), which is still in force today. The statute applies to Monroe and all other municipalities in Georgia. Section 34A-1407(a) of the 1968 code has two sentences. The first sentence sets forth a rule of deference to municipal charters:
“If the municipal charter . . . provides that a candidate may be nominated or elected by a plurality . . . , such provision shall prevail.”
The second sentence lays down a state-law default rule for all other cities:
“Otherwise, no candidate shall be ... elected ... [without] a majority of the votes east....” Georgia Municipal Election Code, §34A-1407(a) (1968 code section or § 34A-1407(a)), 1968 Ga. Laws 977, as amended, Ga. Code Ann. § 21-3-407(a) (1993).
Georgia submitted the 1968 code to the Attorney General for preclearance. Its cover letter stated: “ Tn view of the variety of laws which heretofore existed, no effort will be made herein to set forth the prior laws superseded by the Municipal Election Code.’” 962 F. Supp., at 1505. The letter then listed the majority-vote provision as a significant change, noting: “ ‘Whether the majority or plurality rule is in effect in the municipal election will depend upon how the municipality’s charter is written at present or may be written in [the] future ....’” Ibid. The Attorney General objected to other provisions of the 1968 code but did not object to §34A-1407(a), so it was, and is, preeleared. The United States does not dispute this conclusion, nor does it claim Georgia’s submission was misleading, ambiguous, or otherwise defective.
In 1971, the revision of Monroe’s charter. 1971 Ga. Laws 3227. The 1971 charter made explicit provision, for majority voting. Neither Georgia nor Monroe sought to preclear the revisions to the charter.
In 1990, roe’s charter and carried forward the majority-vote requirement. This time, Monroe sent the 1990 charter to the Attorney General for preclearanee, but the cover letter did not mention the majority-vote provision. The Attorney General objected to it nevertheless, interpreting the submission as effecting a change from plurality to majority voting. The Government filed suit against Monroe and city officials in 1994 and prevailed in the District Court.
1 — Í J — 1
The 1968 code must be the centerpiece of this case, for it defers where city charters are specific and provides a default rule where they are not. If a city charter requires plurality voting, the deference rule in the first sentence of the 1968 code section allows the municipal charter provision to take effect. Monroe, however, does not have and has not had a plurality-vote provision in its charter. The first sentence simply does not apply here because no charter provision triggers its rule of deference to municipal law. Thus, the second sentence’s default rule of state law governs, requiring Monroe to use majority voting. Since the Attorney General pre-cleared the default rule, Monroe may implement it.
The District Court reached a contrary conclusion, relying on a single footnote in City of Rome v. United States, 446 U. S. 156, 169-170, n. 6 (1980). As the District Court put it: “The [RomeJ Court’s rationale focused squarely on the notion that [Georgia’s] submission of the 1968 Statewide Code did not put before the Attorney General the propriety of changes in the voting practices of individual cities.” 962 F. Supp., at 1513.
The court’s reliance on the footnote was misplaced. Unlike this ease, which concerns the default rule in the second sentence of the 1968 code section, the City of Rome footnote concerned the deference rule in the first sentence. Rome’s pre-1966 charter had an explicit requirement of plurality voting. When the General Assembly amended Rome’s charter to provide for majority voting, no one sought to preclear this or other changes. “Rome [later] argue[d] that the Attorney General, in preclearing the 1968 Code, [had] thereby approved by reference the City’s 1966 Charter amendments.” City of Rome v. United States, 472 F. Supp. 221, 233 (DC 1979), aff’d, 446 U. S. 156 (1980); see also 472 F. Supp., at 233 (“Rome argues that its Charter, having been amended in 1966 to provide for majority voting, did not provide for plurality voting in 1968, and that therefore the 1968 Code mandated majority voting”). submission
This of the 1968 code did not submit Rome’s 1966 charter for pre-clearance “in an unambiguous and recordable manner.” 446 U. S., at 170, n. 6 (internal quotation marks omitted). Georgia’s submission of the 1968 code “informed the Attorney General only of [Georgia’s] decision to defer to local charters and ordinances regarding majority voting” should a city choose to include a voting provision in its charter as permitted by the deference rule. Ibid, (internal quotation marks omitted; emphasis added). Georgia’s submission of the 1968 code did not give the Attorney General “an adequate opportunity to determine the purpose of [Rome’s 1966] electoral changes and whether they will adversely affect minority voting.” Id., at 169, n. 6. not even
Indeed, arguably constitute a request for preclearan.ce of the 1966 change to Rome’s charter. Given that the unpreeleared charter amendment was a nullity as a matter of federal law, the 1968 code did not change the law in Rome. Rather, it deferred to the plurality-vote requirement in the pre-1966 charter. In this case, however, the 1968 code is what changed the law in Monroe. Accordingly, unless the Attorney General’s preclearanee of the code was a nullity, there has been no violation of the Voting Rights Act. the
In short, submission of the 1968 code to validate the 1966 municipal electoral changes. City of Rome, in discussing the “decision to defer to local charters,” recognized that the case arose under the rule of deference to municipal law. This rule of deference would not have been interpreted to effect a change in the law, and so it did not put the Attorney General on notice of Rome’s shift to majority voting. Because municipal law was dispositive under the first sentence of the 1968 code section, City of Rome said nothing about the state-law default rule of majority voting in the second sentence.
The instant case, in contrast, is controlled by the default rule of state law set forth in the second sentence. Monroe’s pre-1966 charter, unlike Rome’s, did not require plurality voting and so could not trigger the rule of deference to municipal law in the first sentence. Thus Monroe, unlike Rome, does not need to breathe life into its invalid 1966 charter to circumvent the rule of deference. After one disregards Monroe’s invalid 1966 and 1971 charters, the state-law default rule mandates majority voting.
Cases, such as this one, arising under the default rule satisfy all of the preelearance requirements in City of Rome. The Government does not dispute that Georgia submitted the state-law default rule to the Attorney General in an “unambiguous and recordable manner.” The submission, furthermore, gave the Attorney General “an adequate-opportunity to determine the purpose of the [default-rule] electoral changes and whether they will adversely affect minority voting.” In consequence, by preclearing the 1968 code the Attorney General approved the state-law default rule. The controlling default rule having been precleared, Monroe may cohduet elections under its auspices.
Because the 1968 code disposes of the case on this undisputed factual record, the Court need not address appellants’ other contentions. The judgment of the District Court is
Reversed.
Question: What type of decision did the court make?
A. opinion of the court (orally argued)
B. per curiam (no oral argument)
C. decrees
D. equally divided vote
E. per curiam (orally argued)
F. judgment of the Court (orally argued)
G. seriatim
Answer:
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songer_respond1_8_3
|
F
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "miscellaneous", specifically "other". Your task is to determine which of the following specific subcategories best describes the litigant.
EXECUTIVE FINANCIAL SERVICES, INC., Appellant, v. Robert M. GARRISON, Virginia C. Garrison, Robert M. Garrison, II, Christine L. Garrison and Sperry Corporation formerly known as Sperry Rand Corporation, Appellees.
No. 83-1751.
United States Court of Appeals, Eighth Circuit.
Submitted Nov. 30, 1983.
Decided Dec. 9, 1983.
John F. Barry, Partin, Partin & Barry, Kansas City, Mo., for appellees.
Allen J. Lebovitz, Kansas City, Mo., for appellant.
Before LAY, Chief Judge, HENLEY, Senior Circuit Judge, and ARNOLD, Circuit Judge.
PER CURIAM.
Executive Financial Services, Inc. (EFS) appeals from the district court’s grant of summary judgment in favor of appellees in EFS’s suit for a deficiency judgment after repossession and sale of secured collateral. EFS contends the district court erred in holding that written notice is necessary under Missouri’s counterpart to Uniform Commercial Code § 9-504(3) as a prerequisite to a secured creditor’s right to a deficiency judgment. EFS also alleges that appellees waived their right to notice under the statute. Finding the district court’s construction of Missouri law to be reasonable, 535 F.Supp. 263, we affirm.
Appellee Robert M. Garrison entered into a written agreement to lease computer equipment from EFS. Garrison became dissatisfied with the equipment, refused to make further payments and surrendered possession of the equipment to EFS which subsequently sold it. EFS then sued the Garrisons for the remaining rentals due under the agreement. The Garrisons moved for summary judgment alleging that no oral or written notice of sale had been given to them. EFS claimed that oral notice had in fact been given, or, in the alternative, that the Garrisons waived their right to notice by surrendering the equipment. It is uncontested that no written notice was given by EFS to the Garrisons prior to the sale of the collateral.
The district court, following a hearing, concluded that Missouri law requires that notice to the debtor be in writing under V.A.M.S. § 400.9-504(3) (1965). The court further held that the Garrisons did not waive their right to notice. The court noted that in Missouri a secured party’s failure to comply with the notice requirements in § 9-504 precludes a deficiency judgment in favor of that party. Because there was no written notice given, the district court ordered summary judgment in favor of the Garrisons. This appeal followed.
The parties agree that the transaction is within the scope of Article Nine of Missouri’s commercial code since the lease was “intended to create a security interest” in the computer. V.A.M.S. § 400.9-102(l)(a) (1965). Therefore, the principal issue on appeal is whether V.A.M.S. § 400.-9-504(3) requires notice to the debtor to be in writing or whether oral notice will suffice. There appears to be no Missouri case which addresses this precise issue.
V.A.M.S. § 400.9-504(3) provides in pertinent part:
[Reasonable notification of the time and place of any public sale or reasonable notification of the time after which any private sale or other intended disposition is to be made shall be sent by the secured party to the debtor.
(Emphasis added.) Whether written notice is required under this section of the Uniform Commercial Code has been the subject of conflicting decisions among the states. See, e.g., McKee v. Mississippi Bank & Trust Co., 366 So.2d 234 (Miss.1979) (written notice required); DeLay First Nat’l Bank & Trust Co. v. Jacobson Appliance Co., 196 Neb. 398, 243 N.W.2d 745 (1976) (written notice required); Crest Invest. Trust, Inc. v. Alatzas, 264 Md. 571, 287 A.2d 261 (1972) (oral notice sufficient); Bondurant v. Beard Equipment Co., 345 So.2d 806 (Fla.Dist.Ct.App.1977) (oral notice sufficient); Annot., 11 A.L.R. 4th 241, 258-62 (1982).
The district court reasoned that a Missouri court, if faced with the issue, would require written notice for several reasons. Executive Financial Services v. Garrison, 535 F.Supp. 263, 264 (W.D.Mo.1982). The first of these reasons is the plain language of the statute. V.A.M.S. § 400.9-504(3) states that the notice “shall be sent.” It is difficult to believe that, in choosing this language, the draftsmen contemplated oral notice as being sufficient, especially when they could have just as easily used the words “shall be given” or other similar language.
Although several cases ... have suggested that oral notice is sufficient, these findings are almost certainly contrary to draftsmen’s intent. Section 9-504 requires that the secured party “send” notice and 1-201(38) tells us that: ‘ “Send” in connection with any writing or notice means to deposit in the mail or deliver for transmission by any other usual means of communication with postage provided for and properly addressed... . ’ It is most difficult to fit an oral message into the quoted language. Rather the subsection seems to contemplate mail or telegraphic notice.
J. White & R. Summers, Uniform Commercial Code 1112 (2d ed.1980).
The second reason given by the district court for requiring written notice is its belief that a Missouri court would opt for an interpretation giving greater protection to the debtor. The notice requirement protects the debtor’s right to redeem the collateral. V.A.M.S. § 400.9-504 comment 5. The court cited Gateway Aviation, Inc. v. Cessna Aircraft Co., 577 S.W.2d 860 (Mo.App.1978), for the proposition that since deficiency judgments were unheard of at common law, the right to a deficiency judgment accrues “only after strict compliance with the relevant statutes.” Executive Financial Services, 535 F.Supp. at 265 (citing Gateway, supra, at 863). We find this interpretation to be reasonable. See also Clune Equipment Leasing Corp. v. Spangler, 615 S.W.2d 106 (Mo.App.1981) (notice requirement cannot be waived in security agreement).
Finally, we agree with the district court that requiring written notice also protects the secured party by eliminating the problems of proof associated with proving that oral notice was given and that it reasonably informed the debtor of the intended sale. A written notice requirement “should spare judges and litigants much grief.” Executive Financial Services, 535 F.Supp. at 265. “The requirement of a written notice eliminates all possibility of dispute as to whether a notice was actually given. It also establishes what notice was given.” DeLay First Nat’1 Bank & Trust Co., supra, 243 N.W.2d at 749.
Since this question has not been determined by the Missouri courts, it was up to the district court to determine what a Missouri court would probably rule in a similar case. Where it has not been shown that the district judge misapplied the state law, we will usually defer to the view taken by the district court sitting in the state in question. See, e.g., Mitchell v. City of Minneapolis, 707 F.2d 490, 491 (8th Cir.1983); Southern Farm Bureau Casualty Ins. Co. v. Mitchell, 312 F.2d 485, 496 (8th Cir.1963). Here, the district court’s construction of state law is both reasonable and permissible and we accept it.
In addition, we agree with the district court’s holding regarding EFS’s contention that the Garrisons waived their right to notice by surrendering the collateral. In Clune Equipment, supra, the Missouri appellate court rejected a creditor’s argument that the debtor waived notice prior to default. The court stated “the statutory notice provision may not be waived ... to the extent that it gives rights to the debtor and imposes duties on the secured creditor.” Id. at 108. We believe a Missouri court would adhere to this view if confronted with a post-default waiver. To adopt appellant’s construction of the statute would discourage debtors from the cooperative delivery of possession of the collateral and would frustrate the policies of Article Nine in promoting peaceful repossessions and protecting the debtor’s rights upon default. See Union Trust Co. v. Hardy, 400 A.2d 384 (Me.1979); Hall v. Owen County State Bank, 175 Ind.App. 150, 370 N.E.2d 918 (Ind.App.1977).
In sum, the judgment of the district court is affirmed.
. The Honorable Joseph E. Stevens, Jr., United States District Judge, Western District of Missouri.
. Robert Garrison’s wife, son and daughter-in-law were joined as guarantors of the lease. This suit originated in state court, but when the Garrisons, as third party plaintiffs, sued Sperry Corporation for breach of warranty Sperry removed the case to federal district court pursuant to 28 U.S.C. §§ 1332, 1441(c). Summary judgment was granted for the Garrisons against EFS on March 29, 1982. EFS appealed but this court dismissed the interlocutory appeal as premature. Thereafter, Garrison’s suit against Sperry was settled and Garrison’s counterclaim against EFS was voluntarily dismissed, thus disposing of all remaining issues and making the summary judgment final for appeal purposes.
. EFS cites GAC Credit Corp. v. Small Business Admin., 323 F.Supp. 795 (W.D.Mo.1971), to require us to hold oral notice is adequate under the statute. The court there held oral notice to be sufficient under V.A.M.S. § 400.9-312(3) (1965) (notice of one creditor to another creditor for priority purposes). The language in that statute, “has received notification,” is clearly distinguishable from the language in V.A.M.S. § 400.9-504(3) that reasonable notification “shall be sent.” “Send notice” and “receives notice” are defined terms under the code. The definitions are different and they are used in different situations in the code depending upon the section being dealt with. Compare V.A. M.S. § 400.1-201(25) & (26) with V.A.M.S. § 400.1-201(38).
. Since we have held written notice is required, we do not reach the Garrisons’ contentions that, even if oral notice is permissible under the statute, the oral notice given here was insufficient because it did not tell the Garrisons the date on which the subsequent private sale was to take place.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "miscellaneous", specifically "other". Which of the following specific subcategories best describes the litigant?
A. Indian Tribes
B. Foreign Government
C. Multi-state agencies, boards, etc. (e.g., Port Authority of NY)
D. International Organizations
E. Other
F. Not ascertained
Answer:
|
songer_origin
|
C
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of court which made the original decision. Code cases removed from a state court as originating in federal district court. For "State court", include habeas corpus petitions after conviction in state court and petitions from courts of territories other than the U.S. District Courts. For "Special DC court", include courts other than the US District Court for DC. For "Other", include courts such as the Tax Court and a court martial.
Alfred PLAYER, Appellant, v. William F. STEINER, Warden, Maryland House of Correction, Appellee.
No. 8171.
United States Court of Appeals Fourth Circuit.
Argued Nov. 15, 1960.
Decided Nov. 17, 1960.
Stephen D. Moses, Baltimore, Md. (Court-assigned counsel), for appellant.
James H. Norris, Jr., Sp. Asst. Atty. Gen. of Maryland (C. Ferdinand Sybert, Atty. Gen. of Maryland, on brief), for ap-pellee.
Before SOBELOFF, Chief Judge, and HAYNSWORTH and BOREMAN, Circuit Judges.
PER CURIAM.
This is an appeal from a denial, without a hearing, of a petition for a writ of habeas corpus by a state court prisoner.
Player was convicted upon a charge of housebreaking, from which no appeal was taken. Later, he filed a petition under Maryland’s Post Conviction Procedure Act, Code 1957, art. 27, § 645A et seq., in which he contended that he had requested his counsel to appeal his conviction, but that he had been denied the opportunity to. obtain new counsel and to take an appeal by actions of the warden in whose custody he was held. This petition was denied after a hearing in which Player was represented by court-appointed counsel.
Player applied to the Court of Appeals of Maryland for leave to appeal, in which he asserted that the evidence did not prove a forceful entry. This was the ground upon which the petition under the Post Conviction Procedure Act was originally filed, but it had been abandoned after consultation by Player with his court-appointed counsel, and by amendment the petition was changed to raise only the question of the asserted denial of the right of appeal from the original conviction. Leave to appeal was denied, therefore, upon the ground that the question of sufficiency of the evidence had not been effectively raised in the Circuit Court for Montgomery County. Player v. Warden, 222 Md. 619, 159 A.2d 852.
Thereafter Player applied to Chief Judge Bruñe of the Court of Appeals of Maryland for a writ of habeas corpus. This petition was transferred for a hearing by a judge of the Supreme Bench of Baltimore City. Judge Warnken, of that Court, dismissed the petition.
At the time of the hearing in the District Court, there had been no application to the Supreme Court of the United States for a writ of certiorari to the Court of Appeals of Maryland to review its decision in the proceedings under the Post Conviction Procedure Act, or to the Supreme Bench of Baltimore City to review Judge Warnken’s denial of a writ of habeas corpus. We are informed that, while this appeal was pending, Player did file an untimely petition in the Supreme Court of the United States for a writ of certiorari to the Court of Appeals of Maryland, and that this petition was denied on October 17, 1960. Player v. Steiner, 81 S.Ct. 108.
From the foregoing, it clearly appears that Player has not exhausted his state remedies. The question he seeks to present here was not presented to the Circuit Court for Montgomery County and his application for leave to appeal upon the ground he now urges was denied by the Maryland Court of Appeals upon the . ground that it had not been presented to> the lower court. After denial of his petition for a writ of habeas corpus by Judge Warnken, he made no effort to have that decision reviewed in any court. The District Court properly denied the petition without a hearing, since it plainly appears that state remedies have not been exhausted. Darr v. Burford, 339 U.S. 200, 70 S.Ct. 587, 94 L.Ed. 761.
This appeal was filed without a certificate of probable cause from the District Judge. After considering the record and hearing court-appointed counsel, the members of this Court find no merit in the appeal. The appeal will be dismissed for want of a certificate of probable cause to appeal.
Appeal dismissed.
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_respond1_1_4
|
B
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "mining". Your task is to determine what subcategory of business best describes this litigant.
J. Woodford HOWARD, Trustee for Harris S. Howard and J. Woodford Howard, Jr., Harris S. Howard, J. Woodford Howard, Jr., and Henry Fults, Plaintiffs-Appellants, v. HI HAT ELKHORN MINING COMPANY, a corporation, Defendant-Appellee.
No. 14412.
United States Court of Appeals Sixth Circuit.
Oct. 24, 1961.
J. Woodford Howard (of Howard & Francis), Prestonsburg, Ky., for appellants.
Joe Hobson, Prestonsburg, Ky. (R. D. Davis, Ashland, Ky., on the brief), for defendant-appellee.
Before MILLER, Chief Judge, and MARTIN and CECIL, Circuit Judges.
PER CURIAM.
On May 1, 1956, appellant-trustee executed a coal lease which granted to the lessee, Henry Fults, the sole and exclusive right of mining all of the No. 3 Elkhorn seam of coal in and underlying a certain tract of land in Floyd County, Kentucky, specifically described therein. By the terms of the lease Fults agreed to pay a royalty of twenty cents for each ton of coal mined and to diligently mine all mineable and merchantable coal of said No. 3 Elkhorn seam. The term of the lease was for a period of four years. No payment of minimum rental or royalties was required. However, the lease provided that if at the end of the four-year term “all of the mineable and merchantable coal in said seam has not been mined or paid for, Lessee shall then measure up all of the unmined portion of said coal in said No. 3 Elkhorn Seam and pay therefor the rate of royalties herein provided without actually mining said coal, * -» * ”
Under date of May 21, 1956, lessee Fults assigned the lease to Jacks Creek Mining Corporation, which agreed to be bound by all the provisions of the lease, with the exception of the royalty rate, which was increased to thirty cents per ton.
Under date of August 31, 1956, Jacks Creek Mining Corporation assigned the lease to the appellee, Hi Hat Elkhorn Mining Company, which continued the mining of coal thereunder at intervals and paid royalties thereon over a period of some two years.
By letter of September 8, 1958, appellee wrote appellants, “We have encountered mining conditions so very bad that it has been impossible for us to get this coal worked. * * *. We recently got some very good people interested and they brought in a good deal of equipment in addition to our own but we are advised today that they have quit and we just cannot continue as we have in the past. We ask, therefore, that you accept from us a surrender of this lease.”
Appellant refused to accept a surrender of the lease and filed the present action under Sections 2201 and 2202, Title 28 U.S.Code, for a declaration of rights, alleging that the remaining coal in the seam was mineable and merchantable and praying that the court so find and grant them a recovery of such sums as they were entitled to under the lease.
Appellee, by its answer and counterclaim, stated that the coal in the seam was not mineable or merchantable as defined in the lease and asked that the lease be cancelled.
Following the taking of testimony, the District Judge held that there was no question but that there was good coal in the seam, but that the evidence showed that there was a layer of fire clay immediately on top of the coal of from one to two inches in thickness, that immediately over it was a slate ledge that ranged from a half-inch to four or five inches at times, and that on top of that was another thin layer of fire clay, and that the evidence was overwhelming that the fire clay could not be kept out of the coal. He found that the coal was not merchantable and mineable coal and entered judgment dismissing the complaint. This appeal followed.
In our opinion the finding of the District Judge is supported by the evidence, is not clearly erroneous, and must be accepted on this review. Rule 52(a), Rules of Civil Procedure, 28 U.S.C.A.
Based upon that finding, the ruling of the District Judge is not erroneous as a matter of law. It is not a question of releasing the appellee from its contract obligation merely because it became unprofitable to continue the mining of coal, contrary to the ruling in Hall v. Eversole’s Adm’r, 251 Ky. 296, 309-310, 64 S. W.2d 891. The lease obligation was limited to the mining of mineable and marketable coal.
Appellants contend that the appellee, at the time it accepted an assignment of the lease, knew, or by the exercise of reasonable care could have known, all of the pertinent facts about the No. 3 Elkhorn seam, as well as the mining conditions affecting it, but with full knowledge of all of these material facts, continued to hold and operate the lease for a period of more than two years without raising any question as to the mineability of the leased coal, and that by reason thereof it was estopped from now seeking a cancellation of the lease or from asserting that the leased coal was not mineable and merchantable.
Although this issue was raised by the reply filed by the appellants, it was not ruled upon by the District Judge. This was because counsel for appellants in his opening statement specifically stated as follows: “If the Court please, this is an action upon a coal lease and there is only one question on the matter of liability and that is whether or not the remaining coal is mineable and merchantable coal.” The case was heard by the District Judge on that issue alone. We, of course, do not know what additional evidence would have been introduced by the appellee if the issue of estoppel had been injected into the trial. The question of estoppel is not before us on this review. Lively v. Elkhorn Coal Co., 6 Cir., 206 F.2d 396, 399; Apex Smelting Co. v. Burns, 7 Cir., 175 F.2d 978, 982, certiorari denied, 338 U.S. 911, 70 S.Ct. 350, 94 L.Ed. 561.
The judgment is affirmed.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "mining". What subcategory of business best describes this litigant?
A. oil and gas
B. coal
C. metals
D. other
E. unclear
Answer:
|
songer_numresp
|
99
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your specific task is to determine the total number of respondents in the case. If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Glenn W. BRICKER, M.D., Plaintiff, Appellant, v. Henry D. CRANE, Jr., M.D., et al., Defendants, Appellees.
No. 72-1154.
United States Court of Appeals, First Circuit.
Heard Sept. 6,1972.
Decided Nov. 7, 1972.
Glenn W. Bricker, M.D., pro. se.
Eugene M. Van Loan, III, Manchester, N. H., Martin L. Gross, Concord, N. H., W. Wright Danenbarger, Manchester, N. H., and Frederic K. Upton, Concord, N. H., with whom Sulloway, Hollis, Godfrey & Soden, Concord, N. H., Devine, Millimet, Stahl & Branch, Sheehan, Phinney, Bass & Green, Paul E. Nourie, Wiggin, Nourie, Sundeen, Pingree & Bigg, Wadleigh, Starr, Peters, Dunn & Kohls, Manchester, N. H., Upton, Sanders & Upton, Concord, N. H., Peter V. Millham, and Wescott, Millham & Dyer, Laconia, N. H., were on briefs, for defendants-appellees.
Before COFFIN, Chief Judge, McENTEE, Circuit Judge, HAMLEY Senior Circuit Judge.
Of the Ninth Circuit, sitting by designation.
McENTEE, Circuit Judge.
This is an appeal from the district court’s dismissal of an action brought under the Civil Rights Act of 1871. Appellant, Dr. Glenn W. Bricker, is a physician duly licensed to practice medicine in the State of New Hampshire. In August 1970, he received notification that the Credentials Committee of defendant Sceva Speare Memorial Hospital had recommended that he not be reappointed to the hospital’s medical staff. Following receipt of this notification, Dr. Bricker made extensive efforts to obtain the minutes of the meeting at which this action had been taken, as well as a specification of the charges against him. Although these efforts were unavailing, he was afforded an appeal procedure which included a personal appearance before the hospital’s Credentials and Joint Conference Committees. Upon being finally informed that he would not be reappointed to the medical staff, Dr. Bricker commenced an action for injunctive relief against the hospital in New Hampshire Superior Court.
In essence, Dr. Bricker alleged that his nonreappointment was due to his activities as a specialist in the field of legal medicine, which sometimes entailed testifying against other doctors in medical malpractice actions. Along with other allegations not relevant here, appellant claimed that the hospital’s failure to provide him with a specification of charges violated his right not to be deprived of property without due process of law and that his nonreappointment to the hospital staff was arbitrary, capricious and unreasonable. In its decision of May 17, 1971, the Grafton County Superior Court ruled that Sceva Speare was a private hospital and that its bylaws did not require that Bricker be given a written specification of the charges against him. The court further held that Bricker had been a disruptive influence at the hospital, that his medico-legal activities had not played a substantial role in his nonreappointment and that the hospital’s actions were therefore neither arbitrary nor unreasonable. The superior court’s findings of fact and rulings of law were affirmed by the Supreme Court of New Hampshire which specifically held that “the acceptance of federal and town funds . has not changed the private character of defendant hospital.” Bricker v. Sceva Speare Memorial Hospital, N.H., 281 A.2d 589, 592, cert. denied, 404 U.S. 995, 92 S.Ct. 535, 30 L.Ed.2d 547 (1971).
After the denial of his petition for a writ of certiorari, Bricker commenced the present action in the district court. In addition to the hospital, he named as defendants certain members of the Sceva Speare Medical Staff and Executive Committee, a number of insurance companies and three attorneys who represented several of the other defendants. His complaint alleged the existence of a broad-based conspiracy to deprive him of his capacity to practice medicine, solely because of his testimony in malpractice cases, in violation of the first, fifth and fourteenth amendments to the United States Constitution, and the Civil Rights Act of 1871. The complaint further alleged that Bricker’s nonreappointment to the Sceva Speare staff was a result of this conspiracy, that he had not been informed of the charges against him prior to his exclusion from the hospital and that the hospital received certain monies from the state and federal governments under the Medicare Program and the Hill-Burton Act. Stripping this complaint to its “federal essentials,” the district court construed it as alleging a deprivation of due process through the defendant hospital’s refusal to provide appellant with the requested specification of charges. While recognizing its jurisdiction under 28 U.S.C. § 1343, the court dismissed the complaint as to all the defendants on various grounds of res judicata, collateral estoppel and failure to state a cause of action. We affirm the decision of the district court.
Our consideration of this appeal must begin with the doctrine of collateral estoppel. Insofar as appellant relies on 42 U.S.C. § 1983, he must demonstrate that, in denying him access to the facilities of Sceva Speare Memorial Hospital, the defendants acted under color of state law. Adickes v. S. H. Kress & Co., 398 U.S. 144, 150, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). It is unnecessary for us to decide whether the reception of funds under the Hill-Burton Act and other government programs was sufficient to imbue the hospital with state action, since that issue has been conclusively determined against the appellant in the state courts.
In P. I. Enterprises, Inc. v. Cataldo, 457 F.2d 1012 (1st Cir. 1972), this court held that the effects of collateral estoppel cannot be avoided by recasting an adjudicated issue in the form of an action under the Civil Rights Act. We noted in that decision the well settled principle that state courts are fully empowered to decide federal claims and that “[a] state court decision on constitutional issues is res judicata to the identical suit brought in federal court.” Id. at 1014. We reiterate that the Civil Rights Act is not a vehicle for collateral attack upon final state court judgments, Coogan v. Cincinnati Bar Association, 431 F.2d 1209 (6th Cir. 1970); Rhodes v. Meyer, 334 F.2d 709, 716 (8th Cir.), cert. denied, 379 U.S. 915, 85 S.Ct. 263, 13 L.Ed.2d 186 (1964), and that a writ of certiorari to the United States Supreme Court is the only method by which such a decision may be reviewed. See Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923). In the present case, appellant unsuccessfully sought such review after voluntarily litigating his federal claims in state court. Understandably disappointed with the outcome of this earlier litigation, he now seeks a happier result in a federal forum. But he is not entitled to an “encore.” Angel v. Bullington, 330 U.S. 183, 191, 67 S.Ct. 657, 91 L.Ed. 832 (1947).
Appellant argues, however, that whatever the effects of collateral estoppel, he has a subsisting cause of action under 42 U.S.C. § WSSiS). Appellant bases this argument on the recent ease of Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971), in which the Supreme Court held that § 1985(3) does not require state action but reaches private conspiracies aimed at the discriminatory deprivation of equal rights under the law. We note the holding of at least one federal court that, when the object of such a conspiracy is the deprivation of rights secured by the fourteenth amendment, a state involvement requirement survives Griffin. See Dombrowski v. Dowling, 459 F.2d 190 (7th Cir. 1972). We need not reach this issue, however, since appellant has failed to meet the minimum requirements for stating a cause of action under this section.
In Griffin v. Breckenridge, supra, the Court recognized “[t]he constitutional shoals that would lie in the path of interpreting § 1985(3) as a general federal tort law.” Id. at 102, 91 S.Ct. at 1798. In order to avoid these difficulties, the Court construed the statute to require, as an element of the cause of action, a showing of some invidiously discriminatory motivation.
“The language requiring intent to deprive of equal protection, or equal privileges and immunities, means that there must be some racial, or perhaps otherwise class-based invidiously discriminatory animus behind the conspirators’ action.” Id. (Citations omitted.)
In his original complaint before the district court, Bricker did not claim that he was the victim of any class-based discrimination. Following the dismissal of his action, he sought to amend the complaint to include an allegation that he was a member of a class of physicians who had been discriminated against because of their testimony in malpractice cases. While the court denied his motion for leave to amend, this additional allegation would not, in any event, suffice to state a cause of action under § 1985(3).
We recognize, of course, that we are generally required to treat the allegations of a complaint as true for purposes of a motion to dismiss. In the instant case, however, appellant has done no more than flatly assert his membership in a novel class which is neither readily recognizable nor among those traditionally protected by the Civil Rights Act. He has alleged no facts supporting the existence of such a class and admitted at oral argument that he might be the only class-member in New Hampshire. Under these circumstances, we hold that appellant has not sufficiently alleged class-based discrimination to state a cause of action under § 1985(3). See Jacobson v. Industrial Foundation of Permian Basin, 456 F.2d 258 (5th Cir. 1972).
Appellant also makes fleeting reference in his brief to 42 U.S.C. § 1985 (2). At no point in his complaint, or even in his motions for leave to amend, did Bricker specifically rely upon that section. He is therefore precluded from asserting it for the first time on appeal since we will not “ [o] rdinarily . reverse a judgment of the district court on a ground not urged upon it or considered.” Bird v. United States, 241 F.2d 516, 520 (1st Cir. 1957).
Appellant’s claim for relief under 42 U.S.C. § 1981 may be similarly disposed of. That section was not a part of the Civil Rights Act of 1871, and was therefore not raised by even the general and conclusory allegations of the complaint.
“If two or more persons in any State or Territory conspire to deter, by force, intimidation, or threat, any party or witness in any court of the United States from attending such court, or from testifying to any matter pending therein, freely, fully, and truthfully, or to injure such party or witness in his person or property on account of his having so attended or testified, or to influence the verdict, presentment, or indictment of any grand or petit juror in any such court, or to injure such juror in his person or property on account of any verdiet, presentment, or indictment lawfully assented to by him, or of his being or having been such juror; or if two or more persons conspire for the purpose of impeding, hindering, obstructing, or defeating, in any manner, the due course of justice in any State or Territory, with intent to deny to any citizen the equal protection of the laws, or to injure him or his property for lawfully enforcing, or attempting to enforce, the right of any person, or class of persons, to the equal protection of the laws; . . .”
Finally, appellant attacks the court’s denial of his several motions for leave to amend his complaint as an abuse of discretion. Our reading of his proposed amendments, however, convinces us that nothing contained therein could cure the deficiencies of his original complaint or overcome the effects of collateral estoppel. Under these circumstances, the district court clearly did not abuse its discretion by refusing to allow the requested amendments. See Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962); 3 J. Moore, Federal Practice ¶15.10, at 958-59 (2d ed. 1968).
Affirmed.
. Although the complaint did not specify any particular section of this act, the district court assumed reliance on 42 Ü.S.C. §§ 1983 and 1985(3).
. Other overt acts allegedly committed by the defendants in furtherance of the conspiracy include (1) causing a license revocation proceeding against the appellant to be filed with the Board of Registration in Medicine for the State of New Hampshire (the proceeding has terminated in Bricker’s favor); (2) causing material alterations in records and suborning perjury in proceedings before state courts and quasi-judicial boards; (3) instituting a double standard at the hospital relative to regulations imposed; and (4) instituting a requirement that all members of the hospital staff carry malpractice insurance and then threatening to cancel and canceEing appellant’s policy solely because of his testimony in a medical malpractice case. The complaint also alleges that the defendants introduced false testimony at a trial in which appellant appeared as an expert medical witness in order to discredit his previous testimony.
. Since “[t]he application of collateral estoppel in federal courts is no longer grounded upon the mechanical requirement of mutuality,” P. I. Enterprises, Inc. v. Cataldo, 457 F.2d 1012, 1015 (1st Cir. 1972), the defense is available to all parties in the present action. See Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971). Even if it could be argued that the insurance companies and defendants-attorneys Soden and Millham were not so related to the hospital as to be entitled to invoke the doctrine, we hold in any case that since there were no allegations of their participation in the challenged denial of reappointment and no other allegations coloring their actions with state law, no cause of action under § 1983 was made out as to those defendants.
. Section 1983 provides: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to he subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”
. Compare Sams v. Ohio Valley General Hospital Association, 413 F.2d 826 (4th Cir. 1969); Smith v. Hampton Training School for Nurses, 360 F.2d 577 (4th Cir. 1966); Citta v. Delaware Valley Hospital, 313 F.Supp. 301 (E.D.Pa.1970) with Place v. Shepherd, 446 F.2d 1239 (6th Cir. 1971); Mulvihill v. Julia L. Butterfield Memorial Hospital, 329 F.Supp. 1020 (S.D.N.Y.1971); Wood v. Hogan, 215 F.Supp. 53 (W.D.Va.1963).
. Appellant seeks to distinguish our decision in P. I. Enterprises by arguing that his constitutional claim was not, in fact, decided by the state courts. He reaches this somewhat startling conclusion by characterizing the New Hampshire courts’ determination of the state action question as decisive only of a preliminary jurisdictional issue. It is, of course, crystal clear that a due process violation can never exist in the absence of state action, ' and appellant’s contention is therefore frivolous.
. “If two or more persons in any State or Territory conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal proteetion of the laws, or of equal privileges and immunities under the laws; or for the purpose of preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws; in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages, occasioned by such injury or deprivation, against any one or more of the conspirators.”
. Section 1985(2) creates a cause of action under the following circumstances:
. See Act of May 31, 1870, ch. 114, § 16, 16 Stat. 144.
Question: What is the total number of respondents in the case? Answer with a number.
Answer:
|
songer_casetyp1_7-3-3
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation - commercial disputes".
MARCUS LOEW BOOKING AGENCY v. PRINCESS PAT, Limited, et al.
No. 8403.
Circuit Court of Appeals, Seventh Circuit.
March 3, 1944.
Sylvanus George Lee, of Chicago, 111., for appellants.
Isaac E. Ferguson and Morton Lane, both of Chicago, 111., for appellee.
Before EVANS and MINTON, Circuit Judges, and LINDLEY, District Judge.
LINDLEY, District Judge.
From separate judgments against them, defendants appeal, urging error in denial of (1) their motion for a directed verdict, (2) defendant Princess Pat’s motion for a directed verdict on its counterclaim, and (3) their motions for judgment notwithstanding the verdict. These averments of error question primarily the sufficiency of the evidence to justify submission to the jury or to sustain the verdict and the correctness of certain rulings in the course of the trial.
Defendants’ contentions upon the facts center largely upon whether plaintiff failed to perform substantially its contract with defendants or willfully broke it by interjecting into broadcasting periods advertising Princess Pat’s products, announcements of horse racing events. The latter alternative constituted the defense offered to the complaint and the basis for that defendants’ counterclaim. There was no controversy as to existence of a valid contract for broadcasting, or as to the fact that, in at least some of the periods, interrupting flash announcements were made. There was, however, a sharp dispute as to whether defendants knew of the breach by plaintiff as early as two days after the contract went into effect, failed to object, permitted the same to proceed without protest and, with knowledge of the fact, paid the bills for broadcasting for the first five weeks as they matured. Plaintiff’s evidence supported the affirmative and defendants’ the negative.
Where the preponderance lay is not a question for this court. It is too late to make inquiry into sharply controverted matters of fact. Only the jury could determine where the truth lay. It follows that it is unnecessary to consider the legal question of whether certain admitted acts constituted a willful breach of contract for which plaintiff is legally liable, for the verdict effectively established defendants’ waiver of any breach urged.
Defendants claimed also defective performance in shortage of time, in unauthorized change of theme songs, manner of broadcasting and various other elements. But whether these events occurred or anything happened of such character as to negative substantial performance were also questions of fact upon which the verdict is conclusive.
Complaint is made of the charge. In one portion, in defining the issue, the court advised the jury that defendants contended that there had been no substantial performance of the contract for the reason “that during the fifteen minute daily period of broadcasting, it was interrupted by other matters which were injurious to her product.” Inasmuch as the executive officers of the two defendant corporations had testified that they considered the interruptions harmful to the product or to its advertisement, we think the court did not mislead the jury as to the issue presented. This becomes evident when we consider all parts of the charge. Amongst other things, the court informed the jurors that it was for them to determine whether the interruptions constituted substantial deviations from the contract or amounted to substantial failure by plaintiff to perform its contract; that if the jury should determine that the deviations complained of were of such serious nature that plaintiff had failed to perform substantially the service it had agreed to perform, then plaintiff could not recover, unless the jury should find also that defendant knew, at or about the time plaintiff commenced to perform, that plaintiff was making the deviations and consented thereto; but that if the jury should find that defendants did consent to and knowingly permit the deviations then plaintiff would be entitled to recover. The court further charged that plaintiff was bound to prove substantial performance, in good faith, before it could succeed.
Defendants insist also that the court erred in instructing the jury that if defendant Princess Pat made payments to plaintiff after learning of the racing announcements, it had waived performance and was not entitled to recover on its counterclaim. Again the entire charge must be considered. In this, as indicated, the court fully advised the jury as to the exact issues and explained fully the facts necessary to constitute a waiver of performance. Taken as a whole the charge correctly advised the jury of the true issues entrusted to it for its decision.
Having so instructed the jury, the court did not err in refusing to submit the suggested written interrogatories requested by defendants. Rule 49(b) of the Rules of Civil Procedure, 28 U.S.C.A. following section 723c, is permissive, not mandatory, and whether the court will submit special interrogatories is within its sound discretion. If the charge comprehensively covers all issues there is no abuse of discretion in a denial. Dallas Railway & Terminal Co. v. Sullivan, 5 Cir., 108 F.2d 581; Van Pelt v. United States, 6 Cir., 134 F.2d 735; Moyer v. Aetna Life Ins. Co., 3 Cir., 126 F.2d 141.
It was not error to exclude testimony of Mrs. Gordon that she did not know of an existing contract between plaintiff and a third party for the flash announcements of horse races. Whether she knew of the agreement was wholly immaterial. The important and material fact was that the interruptions occurred, and, as to this, there was no dispute. The ultimate inquiry resolved itself into the jury question of whether defendant had condoned the interruptions. The proffered testimony was irrelevant and immaterial.
The sufficiency of the evidence to support the verdict against Frank R. Steel Associates, Inc., is challenged. This defendant, an advertising agency, after the contract between Princess Pat and plaintiff had been executed, entered into another with radio station WHN reciting that it was placed with the station “covering the radio broadcasting of (its) client, Princess Pat Ltd.,” and fixing the time, amount and cost of the broadcasting. It was silent as to any promise upon the part of Steel to make payment. Thus, it is obvious that not only had an express contract been entered into between the two principals but that this supplemental contract, made not with plaintiff but with a third person, was executed solely in behalf of the principal, containing no promise by the agent to pay. Consequently the contract was that of the principal and not of the agent. Williston on Contracts, Rev.Ed.1936, Vol. 1, p. 826; 3. Corpus Juris Secundum, Agency, p. 119, § 215a; Restatement of the Law of Agency, §§ 155 and 320.
True, an agent may bind himself ; the person with whom he deals may be unwilling to trust the principal and yet willing to accept the promise of the agent. But the contract must disclose that the agent has substituted his own responsibility for that of his principal or has pledged his cwn responsibility in addition to that of the principal. Obviously, he is not liable merely because of his agency but solely because of his own contractual obligations. Inasmuch as there is nothing in the agreement in the way of a promise by defendant, Steel Associates, to pay or to substitute its liability for that of its principal or to supplement the principal’s liability with its own promise, the record did not justify submission of the complaint against it to the jury. Its motion for a directed verdict or that for judgment notwithstanding the verdict should have been allowed.
The judgment against Frank R. Steel Associates, Inc., is reversed; that against Princess Pat, Ltd., affirmed. Plaintiff will pay all costs incurred here and in the District Court by Steel Associates and defendant Princess Pat all other costs.
Question: What is the specific issue in the case within the general category of "economic activity and regulation - commercial disputes"?
A. contract disputes-general (private parties) (includes breach of contract, disputes over meaning of contracts, suits for specific performance, disputes over whether contract fulfilled, claims that money owed on contract) (Note: this category is not used when the dispute fits one of the more specific categories below)
B. disputes over government contracts
C. insurance disputes
D. debt collection, disputes over loans
E. consumer disputes with retail business or providers of services
F. breach of fiduciary duty; disputes over franchise agreements
G. contract disputes - was there a contract, was it a valid contract ?
H. commerce clause challenges to state or local government action
I. other contract disputes- (includes misrepresentation or deception in contract, disputes among contractors or contractors and subcontractors, indemnification claims)
J. private economic disputes (other than contract disputes)
Answer:
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songer_appel1_1_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 "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".
L. L. STROUD and John A. Gillies, Appellants, v. B-W ACCEPTANCE CORPORATION, Appellee.
No. 8560.
United States Court of Appeals Tenth Circuit.
Jan. 25, 1967.
William Hedges Robinson, Jr., Denver, Colo. (Robinson, Tilton & Robinson, Denver, Colo., with him on the brief), for appellants.
Paul S. Goldman, Denver, Colo. (Henry & Adams, Denver, Colo., with him on the brief), for appellee.
Before PICKETT and SETH, Circuit Judges, and STANLEY, District Judge.
SETH, Circuit Judge.
After trial to the court, judgment was entered against the appellants, defendants below, for $334,277.64, plus attorney’s fees of $10,000.00. The appellants have taken this appeal. The facts may be summarized briefly as follows:
The appellants were sole shareholders in the Medalion Apartment Hotel, Inc. (hereinafter Medalion). Medalion built and operated an apartment hotel in Colorado Springs, Colorado, and the first tenants, some of whom were business firms, apparently took possession in early 1962. It appears that Medalion’s apartments were of the “luxury” type, and that established rental charges were approximately fifty per cent higher than for existing facilities in Colorado Springs. Medalion contracted with the York Corporation (hereinafter York) for the purchase and installation of air conditioning and heating equipment in the building. Medalion also purchased kitchen appliances for the building from Allied Appliances, Inc. (hereinafter Allied). Medalion secured payment for the heating and air conditioning equipment by executing a chattel mortgage to York in the sum of $309,-324.77, of which $223,421.36 is shown as the “cash selling price” and $85,-903.41 is shown as the “credit service charge.” Medalion executed a similar chattel mortgage on the kitchen appliances to Allied for the sum of $39,-756.70, of which $28,705.20 is shown as the “cash selling price” and $11,051.50 is shown as the “credit service charge.” Medalion also executed promissory notes in conjunction with the foregoing chattel mortgages by which it agreed to pay the total of each chattel mortgage, i. e., the sum of “cash selling price” and “credit service charge,” in equal monthly installments for seven years, the first installments being due on December 15, 1962.
Shortly after the foregoing chattel mortgages and promissory notes were executed they were all assigned to the appellee, B-W Acceptance Corporation, plaintiff below (hereinafter B-W). B-W and York are both subsidiaries of Borg-Warner Corporation. By appropriate instruments, the appellants each personally guaranteed payment of the chattel mortgages and promissory notes. Each guaranty agreement provided that the guarantor should pay fifteen per cent of the obligations so guaranteed as attorney’s fees if collection were necessary. The total face amount of the chattel mortgages and promissory notes was $349,081.47, and it appears that Medalion had paid $14,803.83 before suit was brought by the appellee. The record discloses that Medalion’s apartment hotel was placed in receivership for the benefit of creditors in March 1965.
Upon its findings that Medalion was indebted to the appellee for the balance due on the two promissory notes, and that the individual appellants were similarly liable under the guaranty agreements, the District Court concluded that the appellee should have a several and joint judgment against Medalion and the appellants for $334,277.64, and that the appellee have a several judgment against each appellant for $5,000.00 for attorney’s fees, as provided in the guaranty agreements.
Failure of consideration was the sole defense raised by the appellants in their initial pleadings to the appellee’s suit on the promissory notes and guaranty agreements. The appellants in these pleadings claimed they were relieved of their obligations because York had breached its contract relative to installation and performance of the heating and air conditioning equipment, which was the consideration for the larger of the two chattel mortgages and promissory notes. The appellants alleged the equipment was improperly installed and operated unsatisfactorily, thus causing tenants to complain, move out of the building, or move from higher rent “corner apartments” to less expensive apartments. The appellants also alleged that the appellee was not a holder in due course and that any defenses they might assert against York could be asserted against the appellee B-W because both were subsidiaries of Borg-Warner Corporation.
The record discloses that the pretrial conference resulted in an order which framed the contested issues as York’s alleged breach of contract and the status of the appellee as a holder in due course. The record before us on appeal reveals that the trial proceeded along the lines established in the pretrial conference; the appellee offered evidence showing that any persistent difficulties with the heating and air conditioning equipment, after an initial “shake down” period, were due to the design of the building, and not to improper installation or operation of the equipment. The appellants offered evidence showing that the building was either too hot or too cold, that air in the apartments failed to circulate and became stale and close, that tenants complained, and that the building developed a bad reputation in Colorado Springs because of the heating and cooling difficulties.
The District Court found that Medalion had at no time intended or attempted to rescind the contract with York; that there was little difficulty with the heating and cooling systems after 1963; that considerable work was done by York to make the heating and cooling systems operate efficiently; that the York equipment was still in use in the building; and that the receiver had rented the building except for certain apartments withheld for the summer trade in Colorado Springs. Although the findings and conclusions of the District Court do not expressly state that York had fulfilled its contract, the conclusion to be reached from the foregoing findings is that York did not breach its contract with Medalion. The record before us reveals substantial evidence supporting the trial court’s findings, and the findings support the conclusion that York did not breach its contract with Medalion. The appellee’s status as a holder in due course is of no importance if the initial defense asserted against York, as assignor or transferor, is not good. The District Court therefore found the appellants liable for the balance due on the promissory notes in accordance with their guaranty agreements.
It further appears that some time during the course of the trial the appellants submitted an additional pleading asserting a new defense that the appellee was in the business of making loans of money or personal credit upon security, and had charged interest greater than that permitted by the statutes of Colorado. The District Court concluded that the Colorado statutes did not prevent the appellee from enforcing the appellants’ obligations but gave no particulars. The record before us reveals no evidence whatever bearing on the issues of whether the appellee or York were “lenders” within the Colorado statutes, whether they were or were not licensed, or whether the transactions in question were covered by the Colorado statutes. Insofar as the record shows, the appellants interposed an alternative defense but failed to offer any evidence from which the trial court could make findings and conclusions. It would thus appear that the appellants cannot now complain of the trial court’s judgment when it was their burden to go forward with the evidence relating to the defense of excessive interest. See 91 C.J.S. Usury § 114; Gilbert v. Hudgens, 92 Colo. 571, 22 P.2d 858 (1933).
The appellants also urge that the District Court erred by awarding judgment for the full balance due on the promissory notes. The promissory notes do not reveal that the total face amounts are the sums of “cash selling price” and “credit service charge,” as shown by the chattel mortgages, which were also introduced in evidence. The appellants have presented several alternative computations purporting to show that the judgment awarded is excessive because the District Court made no allowance for unearned interest. These computations are in some instances related to various Colorado statutes. However, it appears that the appellee’s cause of action was on the promissory notes and the guaranty agreements. The appellants have referred us to no authority wherein judgment for the balance of the face amount of a defaulted promissory note was reduced by unearned interest, as computed from the terms of an underlying chattel mortgage, nor does the record disclose that such an argument was presented to the trial court prior to its judgment. It does not appear that the appellants referred the trial court to any Colorado cases or statutes, or to any authority whatever, for the proposition that the “credit service charge” integrated into the total face amount of the two promissory notes should be subtracted pro rata from the balance due on the notes. In our view the appellants’ arguments on appeal, unsupported by authority, are a belated effort to retry the case at the appellate level on theories not presented to the trial court. See First National Bank of Dodge City, Kansas v. Persch-bacher, 335 F.2d 442 (10th Cir.).
It seems clear that the District Court awarded judgment for the unpaid balance of the promissory notes without being asked to inquire into their origin to determine the character of the obligations they represented It was the responsibility of the appellants to come forward during trial with arguments and authorities demonstrating that a judgment for the unpaid balance of the promissory notes would be incorrect under the circumstances of the case at bar. This the appellants failed to do. The trial court properly entered judgment for the unpaid balance of the promissory notes.
Two additional issues are raised by the appellants. It is urged that the District Court erred by awarding $10,-000.00 attorney’s fees because such fees were not expressly included in the ap-pellee’s prayer. The written agreement between the appellee and its counsel, disclosing a fee of $10,000.00, was admitted in evidence. The guaranty agreements executed by the appellants, also admitted in evidence, provide that the guarantors “shall pay 15% of the amount” as attorney’s fees. The evidence established that the appellee was entitled to recover attorney’s fees under the guaranty agreements. It was not error to award such fees even though they were not included in the appellee’s ad damnum clause. See Rule 54(c), Fed.R.Civ.P.; Couto v. United Fruit Co., 203 F.2d 456 (2d Cir.); Collins v. Government of Virgin Islands, 236 F.Supp. 441 (D.V.I.).
The final issue raised by the appellants is that it was error for the District Court to permit the appellee’s witness Willman to testify in rebuttal. The appellants objected to Willman’s testimony on the ground that he had not been endorsed as a witness, nor were the appellants advised that Willman would be called in accordance with the pretrial order, which required counsel to notify the opposing party at least twenty days in advance of the name and address of the witness and the general subject matter of his testimony. In view of the issues framed in the pretrial conference, it does appear that the need for Will-man’s testimony could have been anticipated by counsel for the appellee, and that counsel for the appellants could have been notified. However, the trial judge, who was not the same judge that presided at the pretrial conference, expressed some concern about the issues being tried and permitted the witness to testify over the appellants’ objection. Although the appellants were not notified that Willman might be called as a witness, we believe the decision was a matter within the sound discretion of the trial court, and there was no error.
Affirmed.
. The record discloses that no issues were raised at trial regarding Medalion’s contract with Allied for the kitchen appliances.
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_genapel2
|
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 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.
BOGY v. UNITED STATES. SPAULDING v. SAME.
Nos. 7616, 7649.
Circuit Court of Appeals, Sixth Circuit.
May 9, 1938.
Charles M. Bryan and Thomas L. Robinson, both of Memphis, Tenn. (Chas. M. Bryan and Blan R. Maxwell, both of Memphis, Tenn., on the brief for Bogy; Thomas L. Robinson and John E. Robinson, both of Memphis, Tenn., on the brief for Spaulding), for appellants.
R. G. Draper, of Memphis, Tenn. (William McClanahan, C. P. J. Mooney, and R. G. Draper, all of Memphis, Tenn., on the brief), for appellee.
Before HICKS and ALLEN, Circuit Judges, and DRUFFEL, District Judge.
ALLEN, Circuit Judge.
The appellants were found guilty under six counts of an indictment, the first five counts of which charged them jointly with one Joseph R. DeLatte with violating the mail fraud statute, title 18, section 338, U. S.C. 18 U.S.C.A. § 338. The sixth count charged them with conspiracy to violate the mail fraud statute and section 77q, title 15, U.S.C. 15 U.S.C.A. § 77q. The District Court sentenced the appellants under each count.
The first count of the indictment, which by reference is incorporated into the other counts, in substance charges appellants, together with Joseph R. .DeLatte (who pleaded guilty), with devising a scheme, in violation of the above statutes, to defraud customers of the Colonial Investment Syndicate, Inc., of which Bogy is president and sole owner, of bonds which they had theretofore purchased from Bogy. It also charges appellants with using the mails for the purpose of fraudulently releasing Bogy from liability for. bonds purchased by his customers but not yet delivered to them by Bogy. The first two counts of the indictment are based upon letters mailed by Bogy to two of his customers, and the third, fourth and fifth counts are based upon letters mailed by three of Bogy’s customers to Bogy, all charged to have been mailed for the purpose of executing the fraudulent scheme. The sixth count describes the alleged conspiracy and lists among other overt acts the mailing and receiving of the five letters embodied in the other counts, and the unlawful use of the mails in the sale of securities.
It is impossible properly to summarize the allegations in this involved and detailed indictment. For the purposes of this opinion it is sufficient to say that the gist of the fraudulent scheme set forth was as follows:
Bogy, a resident of Memphis, Tennessee, had built up a business in selling and exchanging securities. In his manipulations he was often unable to make prompt deliveries, and therefore owed bonds to certain customers. Having secured the necessary information from Bogy, Spaulding would acquire from Bogy’s customers the bonds in their possession, would induce them to execute papers releasing Bogy from liability for the securities still owed (some of which papers were mailed), and would appropriate 'the bonds secured.
The appellants attack the sixth count of the indictment, both by demurrer and by assignment of error, upon the following grounds:
(1) That the facts set forth were insufficient to charge an offense.
(2) That section 77q, title 15, U.S.C., 15 U.S.C.A. § 77q, imposes punishment for fraudulent “sales” by use of the mails or instruments of interstate commerce, and that the indictment does not charge that a sale waá actually made by such meafis.
(3) That section 77q, title 15, U.S.C., 15 U.S.C.A. § 77q, is unconstitutional.
We think the District Court correctly overruled the demurrers. As to the sufficiency of the indictment, we note that no motion was filed to make the indictment more definite and certain. The true test of the sufficiency of the indictment is “whether it contains the elements of the offense intended to be charged, ‘and sufficiently apprises the defendant of what he must be prepared to meet, and, in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction.’ Cochran and Sayre v. United States, 157 U.S. 286, 290, 15 S.Ct. 628, 39 L.Ed. 704; Rosen v. United States, 161 U.S. 29, 34, 16 S.Ct. 434, 480, 40 L.Ed. 606.” Hagner v. United States, 285 U.S. 427, 431, 52 S.Ct. 417, 419, 76 L.Ed. 861. Applying this test, the sixth count sufficiently charges conspiracy under title 18, section 88, U.S.C., 18 U.S. C.A. § 88.
The second contention likewise is untenable. A “sale,” under title 15, section 77b (3), 15 U.S.C.A.. § 77b (3) includes “every contract of sale or disposition of, attempt or offer to dispose of, or solicitation of an offer to buy, a security or interest in a security, for value * * In the transactions described in the indictment, securities were disposed of, or their disposition was contracted for, and hence they are covered by the broad definition of the statute.
The attack upon the constitutionality of section 77q, title 15, U.S.C., 15 U. S.C.A. § 77q, must also fail. The section reads as follows:
“(a) It shall he unlawful for any person in the sale of any securities by the use of any means or instruments of transportation or communication in interstate commerce or by the use of the mails, directly or indirectly—
“(1) to employ any device, scheme, or artifice to defraud, or
“(2) to obtain money or property by means of any untrue statement of a material fact or any omission to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or
“(3) to engage in any transaction, practice, or course of business which operates or would operate as a fraud or deceit upon the purchaser. * * * ”
The principal contention is that securities do not fall within the class of articles of interstate commerce .which Congress has power to regulate, and that the prohibition of the use of the mails in fraudulent sales of securities is therefore unauthorized. A similar contention was raised as to the validity of the mail fraud statute, title 18, section 338, U.S.C., 18 U.S.C.A. § 338, in Badders v. United States, 240 U.S. 391, 36 S.Ct. 367, 60 L.Ed. 706. The court held that Congress may forbid the use of the mails in furtherance of a scheme that it regards as contrary to public policy, whether it can forbid the scheme or not. Cf. Public Clearing House v. Coyne, 194 U.S. 497, 24 S.Ct. 789, 48 L.Ed. 1092; In re Rapier, 143 U.S. 110, 12 S.Ct. 374, 36 L.Ed. 93; Ex parte Jackson, 96 U.S. 727, 24 L.Ed. 877.
We think these holdings by analogy support the validity of section 77q, title 15, U.S.C., 15 U.S.C.A. § 77q, Congress, under its power to establish post offices and post roads, Article 1, § 8, United States Constitution, has full control of the mails and may forbid their use in the execution of schemes to defraud. Under this section Congress has a similar power over the instrumentalities of interstate commerce. This power is complete in itself, and subject to no limitations except those found in the Constitution. Hipolite Egg Co. v. United States, 220 U.S. 45, 57, 31 S.Ct. 364, 55 L.Ed. 364. Section 77q is no more far-reaching than other statutes lawfully enacted to close the channels of interstate commerce to uses antagonistic to the public health and safety, such as the transportation of impure food (Hipolite Egg Co. v. United States, supra), the white slave traffic (Hoke v. United States, 227 U.S. 308, 33 S.Ct. 281, 57 L.Ed. 523, 43 L.R.A.,N.S., 906, Ann.Cas.1913E, 905), and traffic in stolen automobiles (Brooks v. United States, 267 U.S. 432, 45 S.Ct. 345, 69 L.Ed. 699, 37 A.L.R. 1407). Congressional control of the mails logically includes the power to exclude therefrom not only articles physically dangerous to the public health, safety or welfare, such as narcotics, but. also to forbid the use of the mails for deceptive transactions which are detrimental to the financial well-being of the nation. As said in Brooks v. United States, supra (page 346), “Congress can certainly regulate interstate commerce to the extent of forbidding and punishing the use of such commerce as an agency to promote immorality, dishonesty or the spread of any evil or harm to the people of other states from the state of origin.” The particular statute here considered was held valid in Securities and Exchange Commission v. Torr, 15 F.Supp. 315, D.C.N.Y.; Jones v. Securities and Exchange Commission, 2 Cir., 79 F.2d 617. Title 15, section 77q, U.S.C., 15 U.S.C.A. § 77q, is a valid exercise of the congressional power over the mails and interstate commerce.
Appellants also contend that the court should have directed a verdict for appellants, that the charge was prejudicially erroneous, and that misconduct of Government counsel prevented a fair trial.
Decision as to the court’s denial of a directed verdict requires some statement of the evidence.
Bogy admitted buying the powers of attorney and sending the letters described above, but claimed that he had no connection with Spaulding. Spaulding admitted negotiating the deals, but said that the frauds were the conception of and were executed by Joseph R. DeLatte, co-defendant.
In the conduct of his business Bogy had acquired the confidence of the customers named in the indictment, Enochs, Miss Johnson, and Mrs. Kelly. He traded their securities and for that purpose retained them in his possession from time to time. Bogy had contracted to sell and during the early part of 1935 owed to Enochs, Mrs. Kelly and Miss Johnson some forty-seven bonds of the par value of $1,000 each, which were worth about twenty cents on the dollar, or about $9,000 in the aggregate, at the then market price. The fact that these bonds were selling so far below par had not been revealed to Mrs. Kelly or Miss Johnson by Bogy.
In December, 1934, Bogy was pressed for funds. The bank account of his company ran as low as $24 in this month, and at no time during this period was adequate to pay for all of the bonds which Bogy owed. He kept no private bank account, having been through bankruptcy in 1930. Bogy considered that he had the right’to sell certain bonds left in his possession “and put the money in the business,” and it is plain that he had been operating to some extent oh the proceeds of his customers’ securities which had been left in his hands.
In each of the individual deals the same methods were employed. Spaulding- called upon the customer, using a false name, either Deering or Moody, presented fictitious addresses and forged references, and induced the customer to “trade” the bonds he had and also to give to Spaulding a power of attorney or an assignment of the bonds due the customer from Bogy. In each case Spaulding dictated a letter which the customer signed and Spaulding mailed to Bogy, instructing Bogy to -deliver to Spaulding the bonds still owed the customer. The three letters of this description , form the basis of the third, fourth and fifth ctiunts of the indictment.
Spaulding then sent the assignment or power of attorney to Bogy by messenger, either R. A. DeLatte, Joseph R. DeLatte’s brother, or S. P.'Cummings, who also used fictitious names. Bogy delivered no bonds, but paid cash and received the power of attorney and assignment. Spaulding delivered none of the bonds contracted to be exchanged for those handed over by the customers.
The powers of attorney called for the delivery of securities valued roughly at about three times as much as the amounts Bogy paid. When the transactions were completed Bogy was released of all liability for the bonds owing to his customers, .and Spaulding profited-to the extent of Bogy’s payment and whatever he retained from the sale of the converted securities acquired directly from the customers. In the same general way Spaulding acquired a substantial number of securities from other customers of Bogy and appropriated them.
In response to inquiries from Mrs. Kelly as to the reliability of Moody (one of the names assumed by Spaulding), ■ Bogy answered that he knew nothing about him, although the address given was only one block distant from Bogy’s office, and he could easily have made a personal investigation.
Letters were written by Bogy to Miss Johnson and Mrs. Kelly, telling of his delivery of the bonds to Spaulding. These statements in the letters were false, as no such bonds were then in' Bogy’s possession.
The facts which afford ample support for the jury’s verdict are as follows:
As to Spaulding: This appellant twice made extensive written confessions admitting his guilt. He repudiated these confessions when he testified at the trial, denied that he knew of the fraud until toward the close of the transactions, and claimed that Joseph R. DeLatte had induced him to enter the deal, had made all plans, and had received all profits except small commissions paid to himself.
Spaulding is clearly contradicted not only by his two confessions, but also by his admitted conduct during this period. He used five assumed names. He caused Enochs to sign papers, including the letter to Bogy, and dictated similar letters and papers for Miss Johnson and Mrs. Kelly to sign. All of the letters he mailed to Bogy. Spaulding’s claim that he was simply a messenger for Joseph R. DeLatte is contradicted by Dych, who sold the bonds Spaulding appropriated. Dych, who had no knowledge of or connection with the fraud, states that on his arrival in Chattanooga with Joseph DeLatte, Spaulding had in his possession the bag of securities. Later Spaulding told Dych “I have just made $1,000.00.” This statement was made after the Kelly deal, in which $1,000 was the amount paid by Bogy to Spaulding’s agent.
The truth of Spaulding’s confessions was strongly corroborated, and his motion for directed verdict was rightly denied.
As to Bogy: Each customer defrauded was a client of Bogy. While Spaulding denies that Bogy received any profit, Bogy owed bonds to these three customers, and was released from liability thereunder by these transactions. In each case the deal was not closed until Bogy was released. The letters mailed to Bogy authorizing Bogy to deliver the bonds to Spaulding were unnecessary from Spaulding’s standpoint, since he had the power of attorney, but they were clearly calculated completely to disassociate Bogy from the conspiracy.
Other customers of Bogy were defrauded of numerous valuable bonds by Spaulding. Also Bogy sent word to Spaulding by R. A. DeLatte that Bogy wanted to send Spaulding “Some more — some names.” A list of Bogy’s customers was sent to Spaulding from Bogy’s office. Bogy denies this, but R. A. DeLatte is corroborated in this by Spaulding and Joseph DeLatte. The list is in evidence, and reads as follows :
“J. W. Blair Huntingdon
26M 8M due
D. S. Parker Jackson
2M Metropolitans
12M other kinds
Mrs. G. E. Mayfield Medina
2M Mets and quantity others
H. W. Key Spring Creek, Tenn.
4M 2M due”
The list, written on Bogy’s typewriter, so far as it went was correct. Blair and Key, for example, had bought from Bogy and had in their possession the number of bonds stated and the number given as owing from Bogy was then owing to Blair and Key respectively. The list when originally delivered had contained other names, and as each customer was approached and the transaction was made, that customer’s name was torn from the series. The fact that the list contained data as to bonds owed by Bogy and not yet delivered demonstrates that the information came through Bogy, as the number of bonds undelivered could only have been figured in Bogy’s office.
When Mrs. Kelly sought Bogy’s advice as to the trade offered her by Spaulding, Bogy told her that the bonds offered by Spaulding were all good bonds, although he claimed not to know who Spaulding was, and doubted whether such a trade could be made. Mrs. Kelly says that Bogy said “If I could make such a trade as that I would make it without any hesitation whatsoever.”
Bogy paid Spaulding $1,000 in the Enochs deal, $1,000 in the Kelly deal, and $750 in the Johnson deal; that is, he paid $2,750 for powers of attorney to release himself from liability for more than $9,000 worth of bonds at the then market price. Considered as settlement for the bonds or as a purchase of the powers of attorney, the price paid by Bogy was not commensurate with the value received. It was far more consistent with the existence of an agreement on his part to share the profits with Spaulding.
Bogy’s statement as to the Enochs bonds is that he delivered seven of them to R. A. DeLatte for Spaulding, and bought seven himself, giving $1,000 and 400 shares of Television stock in payment. He is corroborated by no witness and by no record of any Television stock transaction. 'R. A. DeLatte says Bogy gave him $1,000 at this time, and denies receiving anything else. A company check for $1,000 executed by Bogy on this day, endorsed by R. A. DeLatte under his assumed name, is in evidence.
As to the Kelly bonds, Bogy states that he put $3,700 cash into an envelope and gave it to Cummings - (whom he had never seen before). He drew a company check for $1,000 on ’this day. This is the transaction in which Spaulding told Dych that he had just made $1,000. Bogy explains the $1,000 check as being a payment to a Mr. Johnson, -who was not produced as a witness.
For the Johnson bonds, Bogy states that he paid $2,100 cash, but R. A. DeLatte says he received $750. A company check for $750 was drawn by Bogy on this day, and is explained by Bogy as having been paid to another purchaser who was not called to testify..
The admitted falsity of the letters written by Bogy to Mrs. Kelly and Miss Johnson, saying that he had delivered their bonds, does not serve to strengthen his uncorroborated assertions. Also the conduct of Bogy’s business during this period was unsystematic, and he was unable to substantiate many of his material statements as to these transactions by orderly books or records. In fact Bogy said that only a pencil memorandum was kept of the bonds involved in the Enochs, Kelly and Johnson transactions, and that that “would not be absolutely accurate.”
Bearing in mind the rule that on motion for directed verdict the evidence must be considered in the light most favorable to the party against whom it is urged (Nieman v. Aetna Life Ins. Co., 6 Cir., 83 F.2d 753), and that if .substantial evidence be introduced sufficient to take the case to the jury no amount of contradictory evidence will authorize the trial court to direct a verdict (Great Atlantic & Pacific Tea Co. v. Chapman, 6 Cir., 72 F.2d 112), we conclude that the District Court correctly overruled the motion for directed verdict on behalf of Bogy.
The principal assignment of error to the charge arises out of the fact that the letters forming the basis of the first five counts were sent after the bonds in the possession of each customer and the power of attorney had been delivered to Spaqlding. Appellants contend that each individual fraud was then complete, and that the sending of these letters had no connection with the scheme alleged in the indictment, and that the court should therefore have charged the jury that appellants were not guilty of using the mails to defraud or of conspiracy as charged. But the record clearly discloses that part of the fraudulent scheme was that Bogy should be released from liability for the bonds owed to these customers. This is-the explanation for the letters which Spaulding caused Enochs, Mrs. Kelly and Miss Johnson to mail to Bogy, authorizing the delivery of the bonds. The powers of attorney given to Spaulding were sufficient for Spaulding’s purpose, but not for Bogy’s purpose, which was not only to profit by, but also to be exonerated from, any part in the scheme. Each individual transaction was completed only when Bogy received the letter and took up the power of attorney or assignment. Hence each letter sent by the customer was mailed in furtherance of a plan not yet consummated. The letters from Bogy were calculated to aid in the retention of the fruits of the fraud, to lull the victims into a false sense of security, to postpone their taking action with respect to their loss, and to delay discovery. Cf. Preeman v. United States, 7 Cir., 244 F. 1. The fact that letters were sent by Bogy after he took up each power of- attorney does not -exonerate him, because the mails were used for the purpose of assuring the victim that he had not been defrauded, and attempting to lull him into inaction. Preeman v. United States, supra; Lewis v. United States, 9 Cir., 38 F.2d 406; Newingham v. United States, 3 Cir., 4 F.2d 490, 491. The enterprise was in the course of execution, both before and after the mails were used, and the letters tended to contribute to subsequent frauds which were incidents in the general scheme. Preeman v. United States, supra. The numerous requests to charge which fall within this group were rightly refused.
Other assignments to the charge may be dealt with summarily. It is not necessary that the scheme to defraud was intended to be executed by the use of the mails nor that any of the defendants at the time that they entered the common scheme so intended. If in the execution of the scheme the mails are in fact used, the statute is violated. Preeman v. United States, supra. The mere incidental and unpremeditated use of the mails in an attempt to defraud may give the federal courts jurisdiction. Hendrey v. United States, 6 Cir., 233 F. 5; Silkworth v. United States, 2 Cir., 10 F.2d 711; United States v. Young, 232 U.S. 155, 161, 34 S.Ct. 303, 58 L.Ed. 548.
The contention that Bogy, if he entered the scheme, entered it after the mailing of the letters from the customers, and that the District Court therefore should have charged that Bogy was not guilty, has no merit. Tt need hardly be repeated that all who with criminal intent join themselves even slightly to the principal scheme, are subject to the statute, although they were not parties to the-scheme at its inception (Kaplan v. United States, 2 Cir., 18 F.2d 939), the acts of one in furtherance of a common criminal enterprise being in law the acts of all. Sasser v. United States, 5 Cir., 29 F.2d 76; Belt v. United States, 5 Cir., 73 F.2d 888.
No reversible error appears in the charge, and we next consider the alleged misconduct of counsel. Appellant Bogy claims that counsel for the Government attempted to create class prejudice by holding Bogy up as a representative of city clubmen before a rural jury, and to foster sympathy by emphasizing the age of the persons victimized and the extent and nature of their loss. These contentions have no weight. Bogy himself testified as to his high social position, and many questions asked by the Government on this point were called forth by Bogy’s testimony. Enochs was 82, Miss Johnson was 75, and Mrs. Kelly was of middle age. Evidence as to their age and condition was relevant. While counsel for the Government was at times over-zealous in his emphasis, he was in every such instance rebuked at the time by the trial judge. The test laid down by this court is that the inquiry as to misconduct of counsel “must always be as to Whether in view of the whole record the impression conveyed to the minds of the jurors by irrelevant and prejudicial matter is such that the court may fairly say that it has not been successfully eradicated by the rulings of the trial judge, his admonition to counsel, and his instruction to the jurors to disregard it.” Pierce v. United States, 6 Cir., 86 F.2d 949, 952; Volkmor v. United States, 6 Cir., 13 F.2d 594.
Applying this rule, we find that the rights of the appellants were protected and the trial was fair.
Appellants also attack the severity of the sentences imposed. The sentences are within the statutory limit, and hence we do not review the discretion vested in and exercised by the trial court in imposing them. Beckett v. United States, 6 Cir., 84 F.2d 731, 733.
The judgments are affirmed.
This ease was reversed on other grounds, 298 U.S. 1, 56 S.Ct. 654, 80 L.Ed. 1015.
Enochs had died before the trial, and while the fraudulent appropriation of his bonds was shown, the surrounding circumstances could not be fully developed.
A sample of this letter is the following:
“Dear Mr. Bogy:
“Will y.ou please deliver to Mr. Walter A. Moody the eighteen Consolidated Gas and Electric Bonds (6% Gold Notes) you owe me. I have sold same to Mr. Moody, and received compensation therefor and this is your authority to deliver them to him.
“Yours very sincerely,
“[Signed.] Mrs. R. Ellis Kelly.”
The letter to Miss Johnson follows:
“Dear Miss Johnson:
“In accordance with your letter of March 26th, we made delivery yesterday to Walter A. Moody of the ten Consolidated Electric and Gas Company Bonds which we were holding for your account and received from him the Power of Attorney signed by you, and also his receipt for the Bonds.
“This, as stated before, completes all contracts with you, with the exception of one, only, Rocky Mountain Fuel Company Bond in the principal sum of $500.00, which will go forward to you within the next day or so.
“We trust that you have made a satisfactory and profitable trade for your Consolidated Bonds, and if we can serve you at any time, do not hesitate to let us know.
“With best wishes, we are,
“Yours very truly,
“Colonial Investment Syndicate, Inc.,
“[Signed] B. A. Bogy,
“By B. A. Bogy, President.”
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_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.
John DEEGAN and Dorothy S. Deegan, Paul Schacknow, Stanley L. Manes and Jocelyn G. Manes, Jesse M. Farrow and Joan H. Farrow, Max H. Rhulen and Evelyn J. Rhulen, Walter A. Rhulen and Judith Rhulen, Jerome Reiss and Naomi Reiss, James P. Kelley and Louise Kelley, Harry E. Danielson and Mary Danielson, and Steven Roy Schacknow, Petitioners-Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.
No. 949, Docket 85-4176.
United States Court of Appeals, Secon'd Circuit.
Argued March 26, 1986.
Decided April 8, 1986.
Howard L. Mann, Schwartzman, Weinstock, Garelik & Mann, New York City (Herman Schwartzman and Donald A. Pitofsky, of counsel), for petitioners-appellants.
Teresa E. McLaughlin, Dept, of Justice, Tax Div., Washington, D.C. (Roger M. Olsen, Acting Asst. Atty. Gen., Michael L. Paup and Anne Belanger Durney, of counsel), for respondent-appellee.
Before KAUFMAN, MANSFIELD and MESKILL, Circuit Judges.
PER CURIAM:
Appellants are limited partners in Northern Hills Partnership (“Northern Hills”). Northern Hills was organized by general partner Ted Shapiro for the purpose of investing in two foreign films, “Ms. Don Juan” and “Don’t Open the Window.” “Ms. Don Juan,” featuring Brigitte Bardot, follows the predictable exploits of a female Don Juan “who finds pleasure in destroying the lives of various men.” “Don’t Open the Window,” a horror film, details the pandemonium caused by a piece of exterminating equipment that “bring[s] back to life newly-dead human beings as bloodthirsty monsters.”
The Commissioner assessed deficiencies in appellants’ federal tax returns after denying deductions and investment tax credits attributable to the partnership. The Tax Court found that the film investments were not activities engaged in “for profit.” I.R.C. § 183. Accordingly, the taxpayers were precluded from claiming deductions by the terms of I.R.C. § 183(a). The investors now appeal.
We affirm, substantially on the basis of the Tax Court’s thorough opinion. The court properly noted that where’ a general partner bears primary responsibility for managing the business of a limited partnership, the relevant inquiry is whether the general partner harbored “an intent and objective of realizing a profit” through the investments. Brannen v. Commissioner, 78 T.C. 471, 506 (1982), aff'd, 722 F.2d 695 (11th Cir.1984). After a thorough review of the record, we agree with the Tax Court that Shapiro failed to establish the partnership’s “for profit” status. See Treas. Reg. § 1.183-2(b).
We also affirm the ruling of the Tax Court that appellants may not deduct the interest expense attributable to the nonrecourse notes, with which the partnership paid $3,100,000 of the films’ purchase price. The court determined that the fair market values of the films were far below their stated purchase prices, and concluded that the partnership had no economic incentive to repay the notes. Accordingly, the court correctly found that the non-recourse notes did not constitute genuine debts, and therefore should not yield interest deductions. Odend’hal v. Commissioner, 80 T.C. 588, 603 (1982), aff'd, 748 F.2d 908, 912 (4th Cir.1984), cert. denied, — U.S. -, 105 S.Ct. 3552, 86 L.Ed.2d 706 (1985); Estate of Franklin v. Commissioner, 544 F.2d 1045, 1049 (9th Cir.1976).
Appellants argue in the alternative that they should be permitted to take depreciation deductions to the extent of their cash investment of $550,000. Where an investment activity is not “for profit,” however, deductions are available only to the limited extent provided by 26 U.S.C. § 183(b). Accordingly, the Tax Court properly disallowed depreciation deductions based on the total cash investment in the partnership. See Brannen v. Commissioner, supra, 722 F.2d 695, 706 (11th Cir. 1984).
Accordingly, the decision of the Tax Court is affirmed.
. The film opened in France under the title, “Si Don Juan Etait Une Femme.” Accordingly, it is also known in the United States by the literal translations, "If Don Juan Were a Woman” and "If Don Juan Were a Lady.”
. Title 26 U.S.C. § 183 provides in relevant part:
(a) General rule — In the case of an activity engaged in by an individual or an electing small business corporation (as defined in section 1371(b)), if such activity is not engaged in for profit, no deduction attributable to such activity shall be allowed under this chapter except as provided in this section.
(b) Deductions Allowable — In the case of an activity not engaged in for profit to which subsection (a) applies, there shall be allowed—
(1) the deductions which would be allowable under this chapter for the taxable year without regard to whether or not such activity is engaged in for profit, and
(2) a deduction equal to the amount of the deductions which would be allowable under this chapter for the taxable year only if such activity were engaged in for profit, but only to the extent that the gross income derived from such activity for the taxable year exceeds the deductions allowable by reason of paragraph (1).
(c) Activity not engaged in for profit defined —For purposes of this section, the term "activity not engaged in for profit” means any activity other than one with respect to which deductions are allowable for the taxable year under section 162 or under paragraph (1) or (2) of section 212.
. Deegan, et. al. v. Commissioner, T.C. Memo. 1985-219 (August 23, 1985). The Tax Court concluded that even had the films performed as well as projected by Shapiro’s appraisers, the return would not have been sufficient to pay the principal and interest due on the nonrecourse notes. In the case of Don’t Open the Window, however, the court erroneously based its calculations on the predicted film rentals to the partnership rather than the estimated gross distribution revenues. Nonetheless, we do not believe this calculation was determinative of the outcome of the case.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. 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.
A. J. SIMLER, Appellant, v. Leslie L. CONNER and Phillips Petroleum Company, a corporation, Appellees.
No. 7822.
United States Court of Appeals Tenth Circuit.
Oct. 11, 1965.
Rehearing Denied Nov. 24, 1965.
John B. Ogden, Oklahoma City, Okl., for appellant.
Phil E. Daugherty and Paul C. Duncan, Oklahoma City, Okl. (Leslie L. Conner, James M. Little, Irvine E. Ungerman and Leslie L. Conner, Jr., Oklahoma City, Okl., on the brief), for appellees.
Before PHILLIPS, BREITENSTEIN and HILL, United States Circuit Judges.
HILL, Circuit Judge.
This declaratory judgment action was brought below by appellant, Simler, against appellee, Conner, asking the court to fix and determine attorney fees, due Conner from Simler, under a contract between the parties. The trial court, after a jury had been waived, made such determination and Simler has appealed. The litigants are not strangers to this court, as this case is only a part of the final chapter in a long story of litigation in the State Courts of Oklahoma and the Federal Courts. To put the present controversy in proper perspective, a brief history of the litigation must be recounted.
Birdine Fletcher, a sister of Simler, died testate in Oklahoma in 1952. By the terms of her will, Simler, who otherwise would have inherited the entire estate as her only heir at law, received “$1.00, this amount and no more.” All of her property, which was very substantial, was left to strangers. Simler employed Conner in July, 1952, as an attorney to contest the will. This employment is evidenced by two letters, one dated July 18 and the other September 25, in 1952. The validity of the will was thereafter unsuccessfully contested in the County Court of Oklahoma County, the District Court of that County and the Supreme Court of Oklahoma. In October, 1952, while the attack upon the competency of the testatrix, as it effected the validity of the will, was being litigated in the state courts, Conner conceived the legal theory that the foreign corporations named as devisees and legatees in the will could not take title to the property in the estate because of a provision in the Constitution of the State of Oklahoma. He then filed a diversity suit in the United States District Court for the Western District of Oklahoma on behalf of Simler against the executor of his sister’s will and the foreign corporations on this theory. After adverse judgments in that court, Conner and his associates appealed the case to this court, obtained a reversal of the district court thereby procuring the entire estate for Simler, as the sole heir at law of the decedent. A petition for certiorari was eventually denied by the Supreme Court and soon thereafter distribution of the entire estate to Simler began.
By the very nature of the action Simler acknowledges that Conner and his associates in the litigation are entitled to an attorney fee. The only question presented here is whether the attorney fee fixed and determined by the court below is a reasonable one. At the outset of our determination we are confronted with the uniformly accepted doctrine that a judgment of a trial court will not be disturbed upon appeal unless it can be concluded that the material findings of fact are clearly erroneous or that the trial court has erroneously applied the law.
The trial court determined that a reasonable contingent attorney’s fee for all of the legal services rendered by Conner and his associates to Simler to be 50 per cent of the June, 1957, value of the property recovered. And further that the 50 per cent should be reduced to 36 per cent because of a settlement made between Simler and one of the associates, whose share of the total fee was to be 14 per cent.
In determining a reasonable attorney fee some of the factors to be given consideration are: (1) Is the fee to be a contingent one; (2) how much is involved in value in the matter; (3) what benefit has accrued to the client; (4) what degree of professional skill and experience was displayed by the attorney; and (5) what amount of time and expenses were spent by the attorney on the matter. Also, the allowance of attorney fees is generally a matter within the sound judicial discretion of the judge and an appellate court is not warranted in overturning the trial court’s judgment unless under all of the facts and circumstances it is clearly wrong.
Expert testimony was adduced at the trial and from such testimony on behalf of Conner we have no hesitancy in holding that there is ample evidence in the record to support the court’s allowance of a 50 per cent total fee as a reasonable one. Two experienced, qualified and outstanding members of the Oklahoma Bar, Mr. Paul Brown and Mr. Gus Rinehart, testified as experts for Conner. Both witnesses possessed a knowledge of the nature and extent of the litigation involved and unequivocally fixed a reasonable fee at 50 per cent of the value of the property recovered. Even one of appellant’s expert witnesses fixed a reasonable fee in the case at 50 per cent and appellant’s other expert acknowledged the fine quality of the legal services rendered. In addition, one of the exhibits, which is set out in full at footnote 3, a letter from Simler to Conner written at the inception of the litigation, shows an agreement by Simler to pay a 50 per cent fee based on the amount recovered. The parties agreed that this letter would not be relied upon by Conner as determinative of the fee to be allowed but it was admitted into evidence and shows that Simler was agreeable to a 50 per cent fee at that time and that he apparently did not consider such a fee excessive. It should also be noted that the balance due Conner is not to be paid in cash immediately but will be paid from 36 per cent of the oil payments accruing monthly from the farm. From the trial judge’s opinion it is evident that, in addition to the exceptional factual situation presented, he gave consideration to all of the factors set forth above and to the Canons of Professional Ethics adopted in Oklahoma. Title 5, Chapter I, Appendix 3, Oklahoma Statutes, 1961. Oklahoma, by statute, expressly authorizes 50 per cent contingent attorney fees. Title 5, § 7, O.S.A. Cases approving 50 per cent contingent fees are too numerous to be set forth here, but all of the cases on the reasonableness of attorney fees teach that the particular facts of each case must determine what a reasonable fee will be. It should also be pointed out that appellant, after receiving the fruits of appellee’s skilled legal efforts, did not choose to fully compensate appellee but brought this action instead. That has been eight years ago and appellee has been deprived of the use of his well earned fee, or of interest upon the money he was entitled to, for that period of time. Clearly* the evidence in this case supports the findings of the trial court.
The trial court, after determining that 50 per cent of the value of the property obtained was a reasonable attorney’s fee, then proceeded, under the evidence, to fix a value of the property as of June 1, 1957, the date of the completion of Conner’s services. The property obtained for Simler through this long series of lawsuits consisted of a quarter section of land, subject to an oil and gas lease, with sixteen producing oil and gas wells thereupon and accumulated oil and gas runs therefrom. The trial court put a value of $12,000 upon the surface rights of the quarter section and a value of $779,480 upon the proved primary and secondary oil and gas reserves and undeveloped oil and gas reserves above a 6400 foot level below the surface. Apparently, no question is raised as to the value of the surface rights to the farm but appellant attacks the oil and gas valuation and says that the trial court used speculative and unreasonable figures in arriving at this valuation figure. We have carefully read all of the expert testimony adduced at the trial and do not agree with appel-, lant. Again it is our view that this finding of the trial judge is amply and sufficiently supported by the evidence.
In regard to this valuation, the evidence shows that this 160 acres is part of a unit consisting of 3700 acres with 5.37 per cent assigned to it as its share of production from the entire unit. Even though the wells on the Simler land go dry the owner will be entitled to share in production from the entire unit. Simler has either received or has become entitled to receive more than $382,000 from oil and gas runs from this farm since acquiring the title to it and the undisputed evidence further shows that the property, since 1952, has produced income in excess of $475,000.
Appellee’s two expert witnesses placed June, 1957, values on the oil and gas reserves at $779,433 and $627,893, without giving any particular value to the unexplored horizons under the land. The evidence also showed that the right to explore unexplored horizons below 6400 feet has considerable value.
Appellant puts stress upon the pretrial proceedings and order to support his contention that the judgment, as rendered, violates what the parties had agreed upon. We find no merit to this contention. It is true that the parties agreed that Conner would not be given an interest in the property in payment of any fee due him. The judgment is in keeping with this agreement but it does properly give Conner a lien upon 36 per cent of Simler’s interest in the minerals and mineral rights above 6400 feet until the full amount due Conner is paid. By the judgment, Conner is expressly precluded from any interest in the mineral rights below the 6400 feet horizons, except that his lien would apply to production from these horizons if such be had. We do not believe that this lien provision violates the pretrial agreement or order, because it gives Conner no ownership in the land or mineral rights. The lien is consistent with the colloquy had between court and counsel at the pretrial conference.
Appellant complains about the trial court’s use of the date, June, 1957, in fixing the value of the property acquired. We agree with the trial court. The date used was the actual time when appellant came into possession of the property by distribution from the estate. He further urges that the judgment is indefinite and with that argument we do not agree. We will not set out the judgment here or unduly lengthen this opinion by attempting to summarize it because it is fully set out in the trial court’s published opinion, Simler v. Conner, supra. We have carefully read it and conclude that it is definite, clear and unambiguous.
We have very carefully considered the entire record before us and agree fully with the trial court’s disposition of this long pending litigation. The allowance is not unconscionable and is clearly within the bounds of the evidence that was before the trial judge. He certainly did not abuse his discretion in the matter.
Affirmed.
. See the trial court’s findings of fact in Simler v. Conner, D.C., 228 F.Supp. 127, for detailed history of the litigation.
. “July 18, 1952.
“Mr. Leslie L. Conner, Atty., 410-414 Hightower Bldg., Oklahoma City, Oklahoma.
“Dear Sir: Be: Birdine Fletcher Estate, County Court, Oklahoma County, Oklahoma.
“This confirms our employment of yourself and law firm to represent us in the matter of the Estate of Berdine Fletcher, deceased, now pending in the County Court of Oklahoma County, Oklahoma, wherein certain people have filed petition to probate an alleged will supposed to be signed by her.
“We agree to pay all the witness fees, court costs, furnish all bonds, purchase copy of all records from court reporters, prepare the evidence and pay all necessary bills to coutest the admission of this will to probate because we do not believe it is a valid will. We understand that this will run in the approximate neighborhood of $1,000.00.
“We also agree to pay you and your firm a reasonable attorney fee for the services rendered and to be rendered in this case and in the County Court and if necessary, in the District Court and if necessary in the Supreme Court of the State of Oklahoma, which fee may be set by the County Court or any other court if the matter is successful either by trial or Judgment or compromise.
“If the matter is not won, compromised or settled, you are not to charge us a fee.
“Yours truly,
“/s/ A. J. Simler
“A. J. Simler, for himself and his children.”
. “Mr. Leslie L. Conner, Conner, Hilpirt & Britton, Attorneys and Counsellor at Law, 410-414 Hightower Building, Oklahoma City, Oklahoma.
“Dear Sir: With reference to my letter of July 18, 1952, employing your firm in the Fletcher Will and Estate Contest,
I agree that the reasonable fee is:
“25% of the amount recovered if settled without trial.
“33% of the amount recovered if case is tried in County and District Court.
“50% of the amount recovered if the case is appealed to the Supreme Court.
“I understand that all expenses, taxes and costs are to be deducted first.
“This is a contingent fee and if nothing is recovered, no fee is paid.
“If anything is recovered or settled, I agree to pay you the above fees.
“Yours truly,
“A. J. Simler”
. Simler v. Wilson et al., 269 P.2d 349.
. Simler v. Wilson, 10 Cir., 210 F.2d 99, cert. denied 347 U.S. 954, 74 S.Ct. 681, 98 L.Ed. 1099, rehearing denied 347 U.S. 973, 74 S.Ct. 786, 98 L.Ed. 1113.
. Walker v. Wiar, 10 Cir., 276 F.2d 39; Rule 52, F.R.Civ.P.
. Wyoming Ry. Co. v. Herrington, 10 Cir., 163 F.2d 1004; Miller et al. v. Burkett, 191 Okl. 521, 130 P.2d 996; Driver v. Tolstornog, Okl, 358 P.2d 1108; 7 C. J.S. Attorney and Client § 191, p. 1080.
. United States v. Anglin & Stevenson, 10 Cir., 145 F.2d 622, cert. denied 324 U.S. 844, 65 S.Ct. 678, 89 L.Ed. 1404.
. The findings of fact show the following:
“ * * * At pretrial conference it was stipulated by the parties and their attorneys that defendant would not rely on the contract of September 25, 1952, but that the contingent attorney’s fee should be fixed by the Court, without a jury, to be paid in money only, and that Con-nor and his associates relinquished their rights to any interest in the real estate above described and the oil and gas production therefrom, except as hereinafter stated.”
. Title 5, § 6, O.S.A. expressly provides for an attorney’s lien for services in Oklahoma.
. At the pretrial conference on December 17, 1963, the following discussion was had:
“The Court: Well, I want you to understand and I want him to understand that if you do that, that the Court, in fixing a cash fee for these lawyers, will have some determination of reserves to determine the amount of probable production dollar-wise from that property.
Mr. Ogden: Yes, sir.
The Court: And go from there to determine the amount of cash they are to receive, and fix the lien upon that payment.
Mr. Ogden: Yes, I know he — I know to protect their fee, whatever judgment.
The Court: To protect their fee down through the time until it’s paid, and when it’s paid, why, he’s got his farm free of any payment, and then you should figure that that payment should be based on a certain percentage of the earnings, because he’s going to want some of it, probably himself. What do you say about this. Mr. Duncan.”
Then at a pretrial conference on December 27, 1963, there is another mention of a lien:
“Mr. Ogden: Your Honor, on that case I’d like to be positive — I think I am, but that I understand this. Now since I talked to Your Honor the other day in the courtroom when we had the pretrial, I’ve gone to Little Rock, North Little Rock and talked to Mr. Simler, and 1 told him and I think this is correct that if we waived a jury in this case, the Court would not consider the second letter, or any interest in his property, but only fix a reasonable lawyer fee in money. Is that the understanding you people have?
Mr. Little: Yes, sir, that was agreeable with us if they waived a jury and that you could set a cash fee to be paid out of what’s accumulated and then if it was more than what’s accumulated to be paid as it accrued from the farm, and that we would not claim any interest as such in the minerals or the surface of the farm.
Mr. Ogden: We understand—
Mr. Little: We’d like it to be secured on the payment of any fee.”
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_interven
|
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 whether one or more individuals or groups sought to formally intervene in the appeals court consideration of the case.
ALEXANDER SPRUNT & SON, Inc., v. COMMISSIONER OF INTERNAL REVENUE.
No. 3400.
Circuit Court of Appeals, Fourth Circuit.
April 4, 1933.
J. Marvin Haynes, of Washington, D. C. (Robert H. Montgomery, of New York City, and Thomas G. Haight, of Jersey City, N. J., on the brief), for petitioner.
G. A. Youngquist, Asst. Atty. Gen. (Sew-all Key and Hayner N. Larson, Sp. Assts. to the Atty. Gen., and C. M. Charest, Gen. Counsel, Bureau of Internal Revenue, and Byron M. Coon, Sp. Atty., Bureau of Internal Revenue, both of Washington, D. C., on the brief), for respondent.
Before PARKER, NORTHCOTT, and SOPER, Circuit Judges.
NORTHCOTT, Circuit Judge.
This is a petition to review a decision of the United States Board of Tax Appeals, and involves income taxes of the petitioner for the year 1923. The decision of the Board will be found in 24 B. T. A, 599. A number of issues were involved in the decision, but only three questions are raised on this appeal, and as to one of these questions the respondent confessed error in this court.
The first question presented is whether a certain payment made by the petitioner to its stockholders constituting a partnership known as the Bremen, partnership was compensation for services rendered, or was in. effect a distribution of profits, and, if the former, whether the payment was reasonable in amount. The second question "is whether a payment of lawyers’ fees in connection with proceedings to recover certain insurance premiums was an ordinary and necessary expense of doing business or was a capital expenditure.
There is little or no dispute as to the facts as found by the Board, on these two questions. The petitioner, a North Carolina corporation, with its main office at Wilmington in that state, is engaged primarily in the purchase of raw cotton and its resale. The company was organized in 1919 to succeed a partnership of the same name, which had been carrying on ihe business for many years, and which then had five members— James, William II., J. L., Walter P., and Thomas E. Sprunt. In 1913 these five persons and two others, D. II. Lippitt and William L. Walker, entered into an agreement for another partnership known as Alexander Sprunt & Son, Bremen. The purpose of this partnership was “to subserve the interests of the parent firm” at Wilmington and to act as the latter’s Bremen agent in purchasing cotton for resale in the Central European countries. Lippitt was designated resident partner, with Walker as assistant.
When war broke out between Germany and the United States, the Bremen firm’s properties were seized as those of an alien enemy, and business was of course suspended. At the close of the war the partners decided not to resume operations in Bremen, and the office was reopened for the purpose of liquidating their affairs. The petitioner in September, 1919, opened an office in Rotterdam, and from then on the petitioner’s sales were made through this branch. Walker was placed in charge as manager, and he divided his time about equally between Rotterdam and Bremen, in the latter place attending to the affairs - of the partnership. Lippitt and W. H. Sprunt, who were officers and stockholders in the petitioner corporation, as well as some others of the stockholders, made several trips to Europe to assist in the liquidation, and also to develop and retain for the petitioner the Bremen firm’s business.
Sales through the petitioner’s Rotterdam branch were made to practically the same customers the Bremen partnership had had. Because of this, members of the latter felt that they were entitled to have commissions on such sales, and on January 1,1922, an agreement, was made among all the petitioner’s common stockholders, fourteen in number, seven of them the partners under the 1913 contract. By this agreement all profits or losses arising upon liquidation of the firm’s old business were to be paid to or met by the original seven members in certain prescribed proportions. The agreement then provided that the petitioner’s seven other stockholders should be admitted to the partnership', and that all fourteen should share, according to the percentage of the petitioner’s common stock which each one held “in the profits on current business, and in commissions, accruals, etc., received from the Rotterdam office of Alex. Sprunt & Son, Inc.” The agreement was carried out, and as sales were made through the Rotterdam office the petitioner credited the Bremen partnership with amounts ranging from 1 to 3 per cent, of the invoice price of the sales made, less freight. These amounts were those customarily paid as commissions by the petitioner to other agents in Europe as between whom and itself no relation existed other than that of principal and agent. They were agreed upon at the time of sale.
The petitioner kept its books on the accrual basis, and in 1923, the year in question, it credited the Bremen partnership under this agreement with commissions on sales made in the amount of $336,554.48. This amount the petitioner deducted from its gross income in determining net or taxable income. The respondent permitted the deduction of only $50,483.18 thereof; the remainder, $286,071.30, he disallowed. Each of the fourteen partners reported for income tax purposes his share o.f the amount credited to the firm and paid the tax due thereon. The amounts so reported have not been excluded by the respondent from the individual partners’ returns.
In the year 1923. the petitioner paid $7,-500 to Goldman and Unger, lawyers, for services rendered in connection with proceedings to recover approximately $2,225>000 paid by the taxpayer and its predecessor partnership between 1914 and 1920 in. war risk insurance premiums, most of them by the partnership in 1917. Upon organization in 1919 the petitioner took over all the latter’s assets and assumed all its liabilities. The petitioner claimed the $7,500 as a deduction from gross income. The respondent disallowed the same.
Upon the basis of these changes in the taxable income reported upon the petitioner’s return, the respondent determined a deficiency in tax. Upon review, the Board approved the Commissioner’s action in these respects.
In considering whether petitioner was entitled to deduct from its gross income the $336,554.48 paid the new Bremen partnership under the head of commissions, we have to consider the surrounding circumstances. It is apparent that, if the payment was not, under section 214(a) (1) of the Revenue Act of 1921 (42 Stat. 239), an ordinary and necessary expense incurred in carrying on its business, it was not properly deductible.
It is well settled that payments of thin character, in order to be deducted from gross income, must be not only for services actually rendered, but must be reasonable in amount. Botany Worsted Mills v. United States, 278 U. S. 282, 49 S. Ct. 129, 73 L. Ed. 379; General Water Heater Corp. v. Commissioner (C. C. A.) 42 F.(2d) 419; Twin City Tile & M. Co. v. Commissioner (C. C. A.) 32 F.(2d) 229.
After the war the Bremen office was not reopened for the general business it formerly conducted, because of the tax that would be imposed in Bremen, but was used largely for settling up the old business. The new office in Rotterdam conducted practically all the business formerly done in Bremen. It was then concluded that, as the Rotterdam office was selling the former customers of the Bremen partnership, and thus getting the benefit of the good will of the old Bremen partnership, something, as a matter of justice, should be paid the old partnership. There is an inference to be drawn from the evidence that this was also necessary in order to prevent the Bremen partnership from starting a competitive business.
Had this allowance for good will been reasonable and had it been made only to the partners of the old Bremen firm, such án al-lowanee might possibly liavo been deductible as an “ordinary and necessary” expense. This, however, was not the case;. The allowance for good will was in an amount equal to the usual commissions paid for making sales. This while the petitioner through the Rotterdam office, with some assistance from the Bremen office, made practically all the sales and paid all the expenses of the business. This was not an arrangement that can be justified as reasonable. The petitioner paid, and sought to deduct from its gross income, not only the usual commissions for sales, but, in addition thereto, the expense of making such sales, an item ordinarily included in the commissions.
Again, instead of making the “good will” payments to those, if any there were, entitled to them, a new partnership was formed, and, in addition to the seven persons who composed the old firm, seven others, who had no interest whatever in the “good will,” were added, and a now partnership formed, mainly, it would appear, to receive these payments. These new members contributed nothing in the nature ox capital or service to the firm, and were given this interest solely because they were holders of common stock of the petitioner, and their holding in the partnership was in proportion to their bolding of this common stock. Certainly the payments made to these new partners wore not “ordinary and necessary” expenses. In weighing transactions of this and a like nature, we will consider, not the form of the transaction, but will endeavor to ascertain tlie actual fact. Because it was termed commission by petitioner, when paid, does not make the amount commission. In looking through the shadow to the substance, we arrive at the same conclusion as that reached by the Board, that at least a part of this payment, was, in fact, a distribution of profits. '
It has been settled that the Board of Tax Appeals is a fact-finding body, and that we cannot substitute our judgment for that of the Board. Atlantic Bank & Trust Co. v. Commissioner (C. C. A.) 59 F.(2d) 363, and authorities there cited. Hero, having in mind the fact that the burden is on the petitioner to show that the determination of the Commissioner was wrong and that petitioner must produce evidence from which a proper determination can be made [Merchants’ Transfer & Storage Co. v. Burnet (C. C. A.) 49 F.(2d) 56; Matern v. Commissioner (C. C. A.) 61 F.(2d) 663; Williams v. Commissioner (C. C. A.) 45 F.(2d) 61], we find ourselves in accord with the finding of the .Board on. this point.
Of the amount paid as commissions, the Commissioner of Internal Revenue allowed the sum of $50,483.18. We think this was a liberal allowance for money paid for the good will of the old Bremen partnership for one year. The sum of $286,071.30 paid to those constituting the new Bremen partnership, whether they had any interest in tlie old business or not, but on the basis of their ownership of the common stock of petitioner, was, in effect, for purposes of taxation, a distribution of profits.
It is contended on behalf of petitioner that, because the Commissioner based his adverse determination upon a wrong theory, the issue becomes fixed, and that the hearing before the Board must be confined to the issue raised by the Commissioner in the notice of deficiency given by 1dm. We do not agree with this contention. The question before the Board and here is, not whether the Commissioner gave the right reason for his conclusion, but whether he reached the right determination, whatever course of reasoning he may have followed.
“It is immaterial whether the commissioner proceeded upon the wrong theory in determining the deficiencies. In any event the burden was on petitioner to show that the assessment was wrong.” J. & O. Altschul Tobacco Co. v. Commissioner (C. C. A.) 42 F.(2d) 609, 610.
As to the item of $286,071.30, we do not think the petitioner has sustained the burden devolving upon it to show that the assessment was wrong. Merchants’ Transfer & Storage Co. v. Burnet (C. C. A.) 49 F.(2d) 56.
As to the second question, whether the $7,500 paid to a firm of lawyers as fees for services rendered in connection with legal proceedings to recover war risk insurance premiums the Board found that there was no evidence from which it could be ascertained whether the amount was in payment of services rendered entirely to the petitioner, or rendered partly to the petitioner and partly to the partnership to which the petitioner, as a corporation, succeeded.
The Board further found, if a portion of ■ the amount “was expended in establishing petitioner’s right, as assignee of the partnership by purchase, to recover amounts paid out by the partnership,” that portion represented an additional cost of the partnership assets, constituting a capital expenditure not deductible from gross income. We do not agree wIth this conclusion. It is, in our opinion, immaterial whether the services were rendered to the corporation or to the partnership or to both.
The corporation succeeded to the partnership and took over its business. It assumed its liabilities and took over all, its assets. There was no sale or purchase in the ordinary acceptance of those words. There was simply a change o.E entities, from a partnership to a corporation, but no real change in the personnel of the owners. The corporation purchased a going business, and, while its outlay represented a capital investment, nevertheless certain of the assets, including the claim of the insurance companies here involved, had to be handled in the ordinary course of business with certain attendant expenses necessary to keep the business in operation. It was not at all certain that, in the legal proceedings, there would be any recovery and whatever migbt be recovered would have to be returned as profits by the corporation in the year when received. Burnet v. Sanford & Brooks Co., 282 U. S. 359, 51 S. Ct. 150, 75 L. Ed. 383.
The cases relied upon to sustain the action of the Board are not controlling here. Blackwell Oil & Gas Co. v. Commissioner (C. C. A.) 60 F.(2d) 257; Williams v. Burnet, 61 App. D. C. 181, 59 F.(2d) 357; Murphy Oil Co. v. Burnet (C. C. A.) 55 F.(2d) 17; Croker v. Burnet, 61 App. D. C. 342, 62 F.(2d) 991. They are cases where expenditures were made either in defending the title to property purchased as a capital asset or in endeavoring to add to the value of a capital asset, or were not made in due course of a. business being carried on. We think the question here is controlled by the principles laid down by Mr. Justice Sutherland in Kornhauser v. United States, 276 U. S. 145, 48 S. Ct. 219, 220, 72 L. Ed. 505, where it is said: "The basis of these holdings seems to be that where a suit or action against a taxpayer is directly connected with, or, as otherwise stated (Appeal of Backer, 1 B. T. A. 214, 216), proximately resulted from, his business, the expense incurred is a business expense within the meaning of section 214 (a), subd. 1, of the act. These rulings seem to us to be sound and the principle upon which they rest covers the present case. If the expense had been incurred in an action to recover a fee from a client who refused to pay it~ the character of the expenditure as a business expense would n~t be doubted. In the application of the act we are unable to perceive any real distinction between an expenditure for attorney's fees made to secure payment of the earnings of the business and. a like expenditure to retain such earnings after their receipt."
Certainly here the suit by the taxpayer "proximately resulted" from its business, and the fee paid under these circumstances was an "ordinary and necessary expense of doing business," within the spirit, if not the letter, of the statute.
The action of the Board as to the item of $286,071.30 paid the Bremen partnership is affirmed, but as to the item of $7,500 paid as attorneys' fees the order of the Board is reversed. It is reversed, also, in so far as it refuses to allow as a deduction errors in the closing inventory aggregating $30,009.31, as to which the respondent confesses error.
Afihmed in part, and reversed in part.
Question: Did one or more individuals or groups seek to formally intervene in the appeals court consideration of the case?
A. no intervenor in case
B. intervenor = appellant
C. intervenor = respondent
D. yes, both appellant & respondent
E. not applicable
Answer:
|
songer_initiate
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff.
Vincent MITCHELL, Petitioner-Appellee, v. Robert HOKE, Superintendent, Eastern Correctional Facility, Respondent-Appellant.
No. 1319, Docket 90-2576.
United States Court of Appeals, Second Circuit.
Argued April 2, 1991.
Decided April 3, 1991.
Ernest Burstein, Asst. Dist. Atty., Kew Gardens, N.Y. (John J. Santucci, Dist. Atty., Queens County, Kew Gardens, N.Y., of counsel), for respondent-appellant.
Sam A. Schmidt, Baroeas & Schmidt, New York City, for petitioner-appellee.
Before LUMBARD, WINTER and WALKER, Circuit Judges.
PER CURIAM:
This is an appeal from a judgment granting Vincent Mitchell’s application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (1988). Mitchell and a co-defendant were convicted in 1985 in New York State Supreme Court, Queens County, of robbery and menacing. The trial court permitted a police officer to testify concerning a lineup at which a witness to the robbery, who was not called to testify, identified Mitchell as the perpetrator. Judge Weinstein concluded in a thorough and well-reasoned opinion that the admission of this hearsay testimony violated Mitchell’s Sixth Amendment right to confront the witnesses against him and granted the writ. 745 F.Supp. 874. We agree and affirm.
The state’s case against Mitchell consisted of the testimony of Bobby Jones, one of the victims of the robbery, and Detective Robert De Leon. Jones testified that on the night of the robbery, he was with three friends, Elliot Primus, Mitchell Warren, and Jerome Trim. At approximately three o’clock in the morning, five or six armed men attempted to hold them up. Warren and Trim ran away. The robbers stole Jones’s ring, a gold chain, and a jacket. Jones testified that Mitchell participated in the robbery. Jones had seen Mitchell occasionally, the most recent encounter having been some four and a half years prior to the crime. Jones admitted to having had a couple of beers immediately prior to the robbery but denied having smoked marijuana that evening.
Detective De Leon testified as follows:
Q Detective, I would ask that you look at [a photograph of the lineup] ... I asked you who it was that viewed that particular line-up?
A Elliot Primus.
Q And can you tell me who was in position number four in that line-up?
A Vincent Mitchell.
Q And Detective, did Mr. Primus pick anyone out of that line-up?
[Defense Counsel]: Objection, Judge. Just what we discussed in the chambers.
The Court: He can answer that yes or no.
[Defense Counsel]: Very well, Judge. The Court: Exception noted.
A Yes, he did.
Q And pursuant to that did you effect an arrest, Officer?
A Yes, I did.
Q And who [sic] did you arrest?
A Vincent Mitchell.
Mitchell then moved for a mistrial on the ground that De Leon’s testimony was inadmissible hearsay. The motion was denied. Mitchell called Warren and Trim, who testified that Jones had been smoking marijuana and drinking before the robbery and that neither defendant had committed the robbery.
The jury returned guilty verdicts against both defendants. In September 1988, Mitchell’s conviction was affirmed by the Appellate Division; the Court of Appeals subsequently denied leave to appeal. In September 1990, the district court granted Mitchell’s petition for a writ of habeas corpus.
The sole question on appeal is whether the admission of De Leon’s testimony concerning the lineup violated Mitchell’s Sixth Amendment right to confront the witnesses against him. The primary purpose of the confrontation clause is to prevent out-of-court statements from being used against a criminal defendant in lieu of in-court testimony subject to the scrutiny of cross-examination. Douglas v. Alabama, 380 U.S. 415, 418-19, 85 S.Ct. 1074, 1076-77, 13 L.Ed.2d 934 (1965). The constitutional constraints on hearsay testimony thus protect the adversary system of justice and the accompanying preference for “face to face” accusation. Ohio v. Roberts, 448 U.S. 56, 65, 100 S.Ct. 2531, 2538, 65 L.Ed.2d 597 (1980). As a result, a prosecutor may not introduce hearsay testimony concerning the statements of a nontestify-ing witness unless the witness is unavailable and the hearsay statement bears sufficient indicia of reliability. Id. at 66, 100 S.Ct. at 2539. However, the Supreme Court has also observed that the hearsay rules and the confrontation clause are intended “ ‘to protect similar values’ and ‘stem from the same roots.’ ” Id. (citations omitted) (quoting California v. Green, 399 U.S. 149, 155, 90 S.Ct. 1930, 1933, 26 L.Ed.2d 489 (1970), and Dutton v. Evans, 400 U.S. 74, 86, 91 S.Ct. 210, 218, 27 L.Ed.2d 213 (1970)). Thus, if evidence is admissible pursuant to “a firmly rooted hearsay exception,” id., it generally does not offend the confrontation clause. See, e.g., Mancusi v. Stubbs, 408 U.S. 204, 213-16, 92 S.Ct. 2308, 2313-15, 33 L.Ed.2d 293 (1972) (cross-examined prior trial testimony); Pointer v. Texas, 380 U.S. 400, 407, 85 S.Ct. 1065, 1069, 13 L.Ed.2d 923 (1965) (dying declarations).
Appellant argues that De Leon’s testimony was admissible by analogy to the residual hearsay exception of Fed.R.Evid. 803(24). Under this exception, hearsay testimony concerning statements made by a declarant is admissible if it has sufficient circumstantial guarantees of trustworthiness and
the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.
Fed.R.Evid. 803(24). We disagree.
Even if we were to regard the residual exception as sufficiently “firmly rooted,” to satisfy the Sixth Amendment right to confrontation, De Leon’s testimony would not be admissible under it. The residual exception is limited to hearsay statements with “high probative value” and is to “be used very rarely, and only in exceptional circumstances.” S.Rep. No. 1277, 93d Cong., 2d Sess., reprinted in 1974 U.S.Code Cong. & Admin.News 7051, 7066. Outside the presence of the jury, defense counsel stated that Primus was available but had recanted his identification of Mitchell. The state challenged neither of these assertions. Pri-mus’s earlier identification of Mitchell can hardly be said to be of “high probative value’’ in light of his later denial of Mitchell's participation in the robbery.
Appellant suggests that Primus’s recantation is the result of intimidation by Mitchell. Such intimidation by Mitchell would have constituted a waiver of his confrontation rights regarding Primus, see United States v. Mastrangelo, 693 F.2d 269, 272-73 (2d Cir.1982), and the pertinent acts of intimidation would be admissible as evidence of Mitchell’s consciousness of guilt. However, the record is barren of any evidence of Mitchell’s intimidation of Primus.
Appellant also argues that De Leon’s testimony was admissible as a business record. This contention is frivolous. See United States v. Oates, 560 F.2d 45 (2d Cir.1977).
The evidence against Mitchell was in no way so overwhelming that De Leon’s testimony can be said to have been harmless. We therefore affirm.
Question: What party initiated the appeal?
A. Original plaintiff
B. Original defendant
C. Federal agency representing plaintiff
D. Federal agency representing defendant
E. Intervenor
F. Not applicable
G. Not ascertained
Answer:
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sc_lcdispositiondirection
|
A
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the decision of the court whose decision the Supreme Court reviewed was itself liberal or conservative. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. The lower court's decision direction is unspecifiable if the manner in which the Supreme Court took jurisdiction is original or certification; or if the direction of the Supreme Court's decision is unspecifiable and the main issue pertains to private law or interstate relations
MIAMI HERALD PUBLISHING CO., DIVISION OF KNIGHT NEWSPAPERS, INC. v. TORNILLO
No. 73-797.
Argued April 17, 1974
Decided June 25, 1974
Daniel P. S. Paul argued the cause for appellant. With him on the briefs were James W. Beasley, Jr., and Richard M. Schmidt, Jr.
Jerome A. Barron argued the cause for appellee. With him on the brief were Tobias Simon and Elizabeth duFresne.
Briefs of amici curiae urging reversal were filed by Joseph A. Cdi-fano, Jr., and Richard M. Cooper for Washington Post Co.; by Robert C. Lobdell and Robert S. Warren for Times Mirror Co.; by James W. Rodgers for New York News Inc.; by Don H. Reuben and Lawrence Gunnels for Chicago Tribune Co. et al.; by Harold B. Wahl for Florida Publishing Co.; by William C. Ballard for Times Publishing Co.; by Spessard Lindsey Holland, Jr., for Gannett Florida Corp. et al.; by Arthur B. Hanson, W. Frank Stickle, Jr., and Ralph N. Albright, Jr., for the American Newspaper Publishers Assn.; by William G. Mullen for the National Newspaper Assn.; by Leonard H. Marks for the American Society of Newspaper Editors et al.; by Lawrence E. Walsh and Guy Miller Struve for the Reporters Committee for Freedom of the Press Legal Defense and Research Fund et al.; by John B. Summers for the National Association of Broadcasters; by J. Laurent Scharff for Radio Television News Directors Assn.; by Floyd Abrams, Corydon B. Dunham, and Howard Monderer for National Broadcasting Co., Inc.; by Harry A. Inman and D. Robert Owen for Dow Jones & Co., Inc., et al.; and by Jonathan L. Alpert, Irma Robbins Feder, and Richard Yale Feder for the American Civil Liberties Union of Florida.
Briefs of amici curiae urging affirmance were filed by Albert H. Kramer and Thomas R. Asher for the National Citizens Committee for Broadcasting, and by Donald U. Sessions pro se.
Mr. Chief Justice Burger
delivered the opinion of the Court.
The issue in this case is whether a state statute granting a political candidate a right to equal space to reply to criticism and attacks on his record by a newspaper violates the guarantees of a free press.
I
In the fall of 1972, appellee, Executive Director of the Classroom Teachers Association, apparently a teachers’ collective-bargaining agent, was a candidate for the Florida House of Representatives. On September 20, 1972, and again on September 29, 1972, appellant printed editorials critical of appellee’s candidacy. In response to these editorials appellee demanded that appellant print verbatim his replies, defending the role of the Classroom Teachers Association and the organization’s accomplishments for the citizens of Dade County. Appellant declined to print the appellee’s replies, and appellee brought suit in Circuit Court, Dade County, seeking declaratory and injunctive relief and actual and punitive damages in excess of $5,000. The action was premised on Florida Statute § 104.38 (1973), a “right of reply” statute which provides that if a candidate for nomination or election is assailed regarding his personal character or official record by any newspaper, the candidate has the right to demand that the newspaper print, free of cost to the candidate, any reply the candidate may make to the newspaper’s charges. The reply must appear in as conspicuous a place and in the same kind of type as the charges which prompted the reply, provided it does not take up more space than the charges. Failure to comply with the statute constitutes a first-degree misdemeanor.
Appellant sought a declaration that § 104.38 was unconstitutional. After an emergency hearing requested by appellee, the Circuit Court denied injunctive relief because, absent special circumstances, no injunction could properly issue against the commission of a crime, and held that § 104.38 was unconstitutional as an infringement on the freedom of the press under the First and Fourteenth Amendments to the Constitution. 38 Fla. Supp. 80 (1972). The Circuit Court concluded that dictating what a newspaper must print was no different from dictating what it must not print. The Circuit Judge viewed the statute’s vagueness as serving “to restrict and stifle protected expression.” Id., at 83. Appellee’s cause was dismissed with prejudice.
On direct appeal, the Florida Supreme Court reversed, holding that § 104.38 did not violate constitutional guarantees. 287 So. 2d 78 (1973). It held that free speech was enhanced and not abridged by the Florida right-of-reply statute, which in that court’s view, furthered the “broad societal interest in the free flow of information to the public.” Id., at 82. It also held that the statute is not impermissibly vague; the statute informs “those who are subject to it as to what conduct on their part will render them liable to its penalties.” Id., at 85. Civil remedies, including damages, were held to be available under this statute; the case was remanded to the trial court for further proceedings not inconsistent with the Florida Supreme Court’s opinion.
We postponed consideration of the question of jurisdiction to the hearing of the case on the merits. 414 U. S. 1142 (1974).
II
Although both parties contend that this Court has jurisdiction to review the judgment of the Florida Supreme Court, a suggestion was initially made that the judgment of the Florida Supreme Court might not be “final” under 28 U. S. C. § 1257. In North Dakota State Pharmacy Bd. v. Snyder’s Stores, 414 U. S. 156 (1973), we reviewed a judgment of the North Dakota Supreme Court, under which the case had been remanded so that further state proceedings could be conducted respecting Snyder’s application for a permit to operate a drug store. We held that to be a final judgment for purposes of our jurisdiction. Under the principles of finality enunciated in Snyder’s Stores, the judgment of the Florida Supreme Court in this case is ripe for review by this Court.
Ill
A
The challenged statute creates a right to reply to press criticism of a candidate for nomination or election. The statute was enacted in 1913, and this is only the second recorded case decided under its provisions.
Appellant contends the statute is void on its face because it purports to regulate the content of a newspaper in violation of the First Amendment. Alternatively it is urged that the statute is void for vagueness since no editor could know exactly what words would call the statute into operation. It is also contended that the statute fails to distinguish between critical comment which is and which is not defamatory.
B
The appellee and supporting advocates of an enforceable right of access to the press vigorously argue that government has an obligation to ensure that a wide variety of views reach the public. The contentions of access proponents will be set out in some detail. It is urged that at the time the First Amendment to the Constitution was ratified in 1791 as part of our Bill of Rights the press was broadly representative of the people it was serving. While many of the newspapers were intensely partisan and narrow in their views, the press collectively presented a broad range of opinions to readers. Entry into publishing was inexpensive; pamphlets and books provided meaningful alternatives to the organized press for the expression of unpopular ideas and often treated events and expressed views not covered by conventional newspapers. A true marketplace of ideas existed in which there was relatively easy access to the channels of communication.
Access advocates submit that although newspapers of the present are superficially similar to those of 1791 the press of today is in reality very different from that known in the early years of our national existence. In the past half century a communications revolution has seen the introduction of radio and television, into our lives, the promise of a global community through the use of communications satellites, and the specter of a “wired” nation.by means of an expanding cable television network with two-way capabilities. The printed press, it is said, has not escaped the effects of this revolution. Newspapers have become big business and there are far fewer of them to serve a larger literate population. Chains of newspapers, national newspapers, national wire and news services, and one-newspaper towns, are the dominant features of a press that has become noncompetitive and enormously powerful and influential in its capacity to manipulate popular opinion and change the course of events. Major metropolitan newspapers have collaborated to establish news services national in scope. Such national news organizations provide syndicated “interpretive reporting” as well as syndicated features and commentary, all of which can serve as part of the new school of “advocacy journalism.”
The elimination of competing newspapers in most of our large cities, and the concentration of control of media that results from the only newspaper’s being owned by the same interests which own a television station and a radio station, are important components of this trend toward concentration of control of outlets to inform the public.
The result of these vast changes has been to place in a few hands the power to inform the American people and shape public opinion. Much of the editorial opinion and commentary that is printed is that of syndicated columnists distributed nationwide and, as a result, we are told, on national and world issues there tends to be a homogeneity of editorial opinion, commentary, and interpretive analysis. The abuses of bias and manipulative reportage are, likewise, said to be the result of the vast accumulations of unreviewable power in the modern media empires. In effect, it is claimed, the public has lost any ability to respond or to contribute in a meaningful way to the debate on issues. The monopoly of the means of communication allows for little or no critical analysis of the media except in professional journals of very limited readership.
“This concentration of nationwide news organizations — like other large institutions — has grown increasingly remote from and unresponsive to the popular constituencies on which they depend and which depend on them.” Report of the Task Force in Twentieth Century Fund Task Force Report for a National News Council, A Free and Responsive Press 4 (1973).
Appellee cites the report of the Commission on Freedom of the Press, chaired by Robert M. Hutchins, in which it was stated, as long ago as 1947, that “[t]he' right of free public expression has . . . lost its earlier reality.” Commission on Freedom of the Press, A Free and Responsible Press 15 (1947).
The obvious solution, which was available to dissidents at an earlier time when entry into publishing was relatively inexpensive, today would be to have additional newspapers. But the same economic factors which have caused the disappearance of vast numbers of metropolitan newspapers, have made entry into the marketplace of ideas served by the print media almost impossible. It is urged that the claim of newspapers to be “surrogates for the public” carries with it a concomitant fiduciary obligation to account for that stewardship. From this premise it is reasoned that the only effective way to insure fairness and accuracy and to provide for some accountability is for government to take affirmative action. The First Amendment interest of the public in being informed is said to be in peril because the “marketplace of ideas” is today a monopoly controlled by the owners of the market.
Proponents of enforced access to the press take comfort from language in several of this Court’s decisions which suggests that the First Amendment acts as a sword as well as a shield, that it imposes obligations on the owners of the press in addition to protecting the press from government regulation. In Associated Press v. United States, 326 U. S. 1, 20 (1945), the Court, in rejecting the argument that the press is immune from the antitrust laws by virtue of the First Amendment, stated:
“The First Amendment, far from providing an argument against application of the Sherman Act, here provides powerful reasons to the contrary. That Amendment rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public, that a free press is a condition of a free society. Surely a command that the government itself shall not impede the free flow of ideas does not afford non-governmental combinations a refuge if they impose restraints upon that constitutionally guaranteed freedom. Freedom to publish means freedom for all and not for some. Freedom to publish is guaranteed by the Constitution, but freedom to combine to keep others from publishing is not. Freedom of the press from governmental interference under the First Amendment does not sanction repression of that freedom by private interests.” (Footnote omitted.)
In New York Times Co. v. Sullivan, 376 U. S. 254, 270 (1964), the Court spoke of “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” It is argued that the “uninhibited, robust” debate is not “wide-open” but open only to a monopoly in control of the press. Appellee cites the plurality opinion in Rosenbloom v. Metromedia, Inc., 403 U. S. 29, 47, and n. 15 (1971), which he suggests seemed to invite experimentation by the States in right-to-access regulation of the press.
Access advocates note that Mr. Justice Douglas a decade ago expressed his deep concern regarding the effects of newspaper monopolies:
“Where one paper has a monopoly in an area, it seldom presents two sides of an issue. It too often hammers away on one ideological or political line using its monopoly position not to educate people, not to promote debate, but to inculcate in its readers one philosophy, one attitude — and to make money.”
“The newspapers that give a variety of views and news that is not slanted or contrived are few indeed. And the problem promises to get worse . . . .” The Great Rights 12A-125, 127 (E. Cahn ed. 1963).
They also claim the qualified support of Professor Thomas I. Emerson, who has written that “[a] limited right of access to the press can be safely enforced,” although he believes that “[government measures to encourage a multiplicity of outlets, rather than compelling a few outlets to represent' everybody, seems a preferable course of action.” T. Emerson, The System of Freedom of .Expression 671 (1970).
“c*]Some states have adopted retraction statutes or right-of-reply statutes ....
“One writer, in arguing that the First Amendment itself should be read to guarantee a right of access to the media not limited to a right to respond to defamatory falsehoods, has suggested several ways the law might encourage public discussion. Barron, Access to the Press — A New First Amendment Right, 80 Harv. L. Rev. 1641, 1666-1678 (1967). It is important to recognize that the private individual often desires press exposure either for himself, his ideas, or his causes. Constitutional adjudication must take into account the individual’s interest in access to the press as well as the individual’s interest in preserving his reputation, even though libel actions by their nature encourage a narrow view of the individual’s interest since they focus only on situations where the individual has been harmed by undesired press attention. A constitutional rule that deters the press from covering the ideas or activities of the private individual thus conceives the individual’s interest too narrowly.”
IV
However much validity may be found in these arguments, at each point the implementation of a remedy such as an enforceable right of access necessarily calls for some mechanism, either governmental or consensual. If it is governmental coercion, this at once brings about a confrontation with the express provisions of the First Amendment and the judicial gloss on that Amendment developed over the years.
The Court foresaw the problems relating to government-enforced access as early as its decision in Associated Press v. United States, supra. There it carefully contrasted the private “compulsion to print” called for by the Association’s bylaws with the provisions of the District Court decree against appellants which “does not compel AP or its members to permit publication of anything which their 'reason’ tells them should not be published.” 326 U. S., at 20 n. 18. In Branzburg v. Hayes, 408 U. S. 665, 681 (1972), we emphasized that the cases then before us “involve no intrusions upon speech or assembly, no prior restraint or restriction on what the press may publish, and no express or implied command that the press publish what it prefers to withhold.” In Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U. S. 94, 117 (1973), the plurality opinion as to Part III noted:
“The power of a privately owned newspaper to advance its own political, social, and economic views is bounded by only two factors: first, the acceptance of a sufficient number of readers — and hence advertisers — to assure financial success; and, second, the journalistic integrity of its editors and publishers.”
An attitude strongly adverse to any attempt to extend a right of access to newspapers was echoed by other Members of this Court in their separate opinions in that case. Id., at 145 (Stewart, J., concurring); id., at 182 n. 12 (Brennan, J., joined by Marshall, J., dissenting). Recently, while approving a bar against employment advertising specifying “male” or “female” preference, the Court’s opinion in Pittsburgh Press Co. v. Human Relations Comm’n, 413 U. S. 376, 391 (1973), took pains to limit its holding within narrow bounds:
“Nor, a fortiori, does our decision authorize any restriction whatever, whether of content or layout, on stories or commentary originated by Pittsburgh Press, its columnists, or its contributors. On the contrary, we reaffirm unequivocally the protection afforded to editorial judgment and to the free expression of views on these and other issues, however controversial.”
Dissenting in Pittsburgh Press, Mr. Justice Stewart, joined by Mr. Justice Douglas, expressed the view that no “government agency — local, state, or federal — can tell a newspaper in advance what it can print and what it cannot.” Id., at 400. See Associates & Aldrich Co. v. Times Mirror Co., 440 F. 2d 133, 135 (CA9 1971).
We see that beginning with Associated Press, supra, the Court has expressed sensitivity as to whether a restriction or requirement constituted the compulsion exerted by government on a newspaper to print that which it would not otherwise print. The clear implication has been that any such a compulsion to publish that which “ ‘reason’ tells them should not be published” is unconstitutional. A responsible press is an undoubtedly desirable goal, but press responsibility is not mandated by the Constitution and like many other virtues it cannot be legislated.
Appellee’s argument that the Florida statute does not amount to a restriction of appellant’s right to speak because “the statute in question here has not prevented the Miami Herald from saying anything it wished” begs the core question. Compelling editors or publishers to publish that which “ ‘reason’ tells them should not be published” is what is at issue in this case. The Florida statute operates as a command in the same sense as a statute or regulation forbidding appellant to publish specified matter. Governmental restraint on publishing need not fall into familiar or traditional patterns to be subject to constitutional limitations on governmental powers. Grosjean v. American Press Co., 297 U. S. 233, 244-245 (1936). The Florida statute exacts a penalty on the basis of the content of a newspaper. The first phase of the penalty resulting from the compelled printing of a reply is exacted in terms of the cost in printing and composing time and materials and in taking up space that could be devoted to other material the newspaper may have preferred to print. It is correct, as ap-pellee contends, that a newspaper is not subject to the finite technological limitations of time that confront a broadcaster but it is not correct to say that, as an economic reality, a newspaper can proceed to infinite expansion of its column space to accommodate the replies that a government agency determines or a statute commands the readers should have available.
Faced with the penalties that would accrue to any newspaper that published news or commentary arguably within the reach of the right-of-access statute, editors might well conclude that the safe course is to avoid controversy. Therefore, under the operation of the Florida statute, political and electoral coverage would be blunted or reduced. Government-enforced right of access inescapably “dampens the vigor and limits the variety of public debate,” New York Times Co. v. Sullivan, 376 U. S., at 279. The Court, in Mills v. Alabama, 384 U. S. 214, 218 (1966), stated:
“[T]here is practically universal agreement that a major purpose of [the First] Amendment was to protect the free discussion of governmental affairs. This of course includes discussions of candidates . . .
Even if a newspaper would face no additional costs to comply with a compulsory access law and would not be forced to forgo publication of news or opinion by the inclusion of a reply, the Florida statute fails to clear the barriers of the First Amendment because of its intrusion into the function of editors. A newspaper is more than a passive receptacle or conduit for news, comment, and advertising. The choice of material to go into a newspaper, and the decisions made as to limitations on the size and content of the paper, and treatment of public issues and public officials — whether fair or unfair — constitute the exercise of editorial control and judgment. It has yet to be demonstrated how governmental regulation of this crucial process can be exercised consistent with First Amendment guarantees of a free press as they have evolved to this time. Accordingly, the judgment of the Supreme Court of Florida is reversed.
It is so ordered.
The text of the September 20, 1972, editorial is as follows: “The State’s Laws And Pat Tornillo
“LOOK who’s upholding the law!
“Pat Tomillo, boss of the Classroom Teachers Association and candidate for the State Legislature in the Oct. 3 runoff election, has denounced his opponent as lacking ‘the knowledge to be a legislator, as evidenced by his failure to file a list of contributions to and expenditures of his campaign as required by law.’
“Czar Tornillo calls ‘violation of this law inexcusable.’
“This is the same Pat Tornillo who led the CTA strike from February 19 to March 11, 1968, against the school children and taxpayers of Dade County. Call it whatever you will, it was an illegal act against the public interest and clearly prohibited by the statutes.
“We cannot say it would be illegal but certainly it would be inexcusable of the voters if they sent Pat Tomillo to Tallahassee to occupy the seat for District 103 in the House of Representatives.”
The text of the September 29, 1972, editorial is as follows:
“FROM the people who brought you this — the teacher strike of ’68 — come now instructions on how to vote for responsible government, i.e., against Crutcher Harrison and Ethel Beckham, for Pat Tornillo. The tracts and blurbs and bumper stickers pile up daily in teachers’ school mailboxes amidst continuing pouts that the School Board should be delivering all this at your expense. The screeds say the strike is not an issue. We say maybe it wouldn’t be were it not a part of a continuation of disregard of any and all laws the CTA might find aggravating. Whether in defiance of zoning laws at CTA Towers, contracts and laws during the strike, or more re-cently state prohibitions against soliciting campaign funds amongst teachers, CTA says fie and try and sue us — what’s good for CTA is good for CTA and that is natural law. Tornillo’s law, maybe. For years now he has been kicking the public shin to call attention to his shakedown statesmanship. He and whichever acerbic prexy is in alleged office have always felt their private ventures so chock-full of public weal that we should leap at the chance to nab the tab, be it half the Glorious Leader’s salary or the dues checkoff or anything else except perhaps mileage on the staff hydrofoil. Give him public office, says Pat, and he will no doubt live by the Golden Rule. Our translation reads that as more gold and more rule.”
“104.38 Newspaper assailing candidate in an election; space for reply — If any newspaper in its columns assails the personal character of any candidate for nomination or for election in any election, or charges said candidate with malfeasance or misfeasance in office, or otherwise attacks his official record, or gives to another free space for such purpose, such newspaper shall upon request of such candidate immediately publish free of cost any reply he may make thereto in as conspicuous a place and in the same kind of type as the matter that calls for such reply, provided such reply does not take up more space than the matter replied to. Any person or firm failing to comply with the provisions of this section shall be guilty of a misdemeanor of the first degree, punishable as provided in § 775.082 or § 775.083.”
The Supreme Court did not disturb the Circuit Court’s holding that injunctive relief was not proper in this case even if the statute were constitutional. According to the Supreme Court neither side took issue with that part of the Circuit Court’s decision. 287 So. 2d, at 85.
The Supreme Court placed the following limiting construction on the statute:
“[W]e hold that the mandate of the statute refers to ‘any reply’ which is wholly responsive to the charge made in the editorial or other article in a newspaper being replied to and further that such reply will be neither libelous nor slanderous of the publication nor anyone else, nor vulgar nor profane.” Id., at 86.
Appellee’s Response to Appellant’s Jurisdictional Statement and Motion to Affirm the Judgment Below or, in the Alternative, to Dismiss the Appeal 4-7.
Both appellant and appellee claim that the uncertainty of the constitutional validity of § 104.38 restricts the present exercise of First Amendment rights. Brief for Appellant 41; Brief for Ap-pellee 79. Appellant finds urgency for the present consideration of the constitutionality of the statute in the upcoming 1974 elections. Whichever way we were to decide on the merits, it would be intolerable to leave unanswered, under these circumstances, an important question of freedom of the press under the First Amendment; an uneasy and unsettled constitutional posture of § 104.38 could only further harm the operation of a free press. Mills v. Alabama, 384 U. S. 214, 221-222 (1966) (Douglas, J., concurring). See also Organization for a Better Austin v. Keefe, 402 U. S. 415, 418 n. (1971).
In its first court test the statute was declared unconstitutional. State v. News-Journal Corp., 36 Fla. Supp. 164 (Volusia County Judge’s Court, 1972). In neither of the two suits, the instant action and the News-Journal action, has the Florida Attorney General defended the statute’s constitutionality.
See generally Barron, Access to the Press — A New First Amendment Right, 80 Harv. L. Rev. 1641 (1967).
For a good overview of the position of access advocates see Lange, The Role of the Access Doctrine in the Regulation of the Mass Media: A Critical Review and Assessment, 52 N. C. L. Rev. 1, 8-9 (1973) (hereinafter Lange).
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or of the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
See Commission on Freedom of the Press, A Free and Responsible Press 14 (1947) (hereinafter sometimes Commission).
Commission 15. Even in the last 20 years there has been a significant increase in the number of people likely to tead newspapers. Bagdikian, Fat Newspapers and Slim Coverage, Columbia Journalism Review 15, 16 (Sept./Oct. 1973).
“Nearly half of U. S. daily newspapers, representing some three-fifths of daily and Sunday circulation, are owned by newspaper groups and chains, including diversified business conglomerates. One-newspaper towns have become the rule, with effective competition operating in only 4 percent of our large cities.” Background Paper by Alfred Balk in Twentieth Century Fund Task Force Report for a National News Council, A Free and Responsive Press 18 (1973).
Report of the Task Force in Twentieth Century Fund Task Force Report for a National News Council, A Free and Responsive Press 4 (1973).
“Local monopoly in printed news raises serious questions of diversity of information and opinion. What a local newspaper does not print about local affairs does not see general print at all. And, having the power to take initiative in reporting and enunciation of opinions, it has extraordinary power to set the atmosphere and determine the terms of local consideration of public issues.” B. Bagdikian, The Information Machines 127 (1971).
The newspapers have persuaded Congress to grant them immunity from the antitrust laws in the case of “failing” newspapers for joint operations. 84 Stat. 466, 15 U. S. C. § 1801 et seq.
“Freedom of the press is a right belonging, like all rights in a democracy, to all the people. As a practical matter, however, it can be exercised only by those who have effective access to the press. Where financial, economic, and technological conditions limit such access to a small minority, the exercise of that right by that minority takes on fiduciary or quasi-fiduciary characteristics.” A. MacLeish in W. Hocking, Freedom of the Press 99 n. 4 (1947) (italics omitted).
“If the States fear that private citizens will not be able to respond adequately to publicity involving them, the solution lies in the direction of ensuring their ability to respond, rather than in stifling public discussion of matters of public concern.1[*]
The National News Council, an independent and voluntary body concerned with press fairness, was created in 1973 to provide a means for neutral examination of claims of press inaccuracy. The Council was created following the publication of the Twentieth Century Fund Task Force Report for a National News Council, A Free and Responsive Press. The background paper attached to the Report dealt in some detail with the British Press Council, seen by the author of the paper as having the most interest to the United States of the European press councils.
Because we hold that § 104.38 violates the First Amendment’s guarantee of a free press we have no occasion to consider appellant’s further argument that the statute is unconstitutionally vague.
Brief for Appellee 5.
“However, since the amount of space a newspaper can devote to ‘live news’ is finite, c*] if a newspaper is forced to publish a particular item, it must as a practical matter, omit something else.
“[«JTke number of column inches available for news is predetermined by a number of financial and physical factors, including circulation, the amount of advertising, and, increasingly, the availability of newsprint. . . .” Note, 48 Tulane L. Rev. 433, 438 (1974) (one footnote omitted).
Another factor operating against the “solution” of adding more pages to accommodate the access matter is that “increasingly subscribers complain of bulky, unwieldy papers.” Bagdikian, Fat Newspapers and Slim Coverage, Columbia Journalism Review 19 (Sept./ Oct. 1973).
See the description of the likely effect of the Florida statute on publishers, in Lange 70-71.
“[L]iberty of the press is in peril as soon as the government tries to compel what is to go into a newspaper. ■ A journal does not merely print observed facts the way a cow is photographed through a plate-glass window. As soon as the facts are set in their context, you have interpretation and you have selection, and editorial selection opens the way to editorial suppression. Then how can the state force abstention from discrimination in the news without dictating selection?” 2 Z. Chafee, Government and Mass Communications 633 (1947).
Question: What is the ideological direction of the decision reviewed by the Supreme Court?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
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songer_counsel2
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E
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
GENERAL MOTORS CORPORATION, Plaintiff-Appellant, v. UNITED STATES of America, and Interstate Commerce Commission, Defendants-Appellees, and The Alabama Great Southern Railroad Company et al., Intervening Defendants-Appellees.
No. 14594.
United States Court of Appeals Sixth Circuit.
Feb. 17, 1962.
Aloysius F. Power, Walter R. Frizzell and E. J. McGratty, Jr., Detroit, Mich., for General Motors Corp.
William H. Orriek, Jr., Asst. Atty. Gen., Morton Hollander, David L. Rose, Attys. Dept, of Justice, Washington, D. C., and Lawrence Gubow, U. S. Atty., Detroit, Mich., for the United States.
Arthur J. Cerra, Asst. Gen. Counsel, Robert W. Ginnane, Gen. Counsel, Washington, D. C., for Interstate Commerce Commission.
J. Edgar McDonald, New York City, for the Alabama Great Southern R. Co., and others.
Before MeALLISTER, CECIL and WEICK, Circuit Judges.
WEICK, Circuit Judge.
The action in the District Court was to set aside and annul an order of the Interstate Commerce Commission adverse to General Motors Corporation which had filed a complaint for reparations before the Commission alleging that it had been overcharged on shipments of mixed carloads of household appliances from Moraine, Ohio to Miami, Florida. About 150 railroad companies intervened in the action. Jurisdiction of the District Court to review the order of the Commission was claimed to have been conferred by Title 28 U.S.C. §§ 1336, 1398 and Title 49 U.S.C.A. § 17(9).
The District Judge handed down an opinion and order in which he held that he had no jurisdiction in the case. He nevertheless considered the merits of the case as if he had jurisdiction and held that there was a rational basis for the order of the Commission and that it should be sustained. Mississippi Valley Barge Line Co. v. United States, 292 U.S. 282, 54 S.Ct. 692, 78 L.Ed. 1260. He dismissed the complaint. General Motors has appealed to this Court from the order of dismissal.
The Commission now concedes that the District Court had jurisdiction to review its order denying reparations. The United States, which was a defendant in the case, filed a brief in which it asked for a reversal of that part of the judgment of the District Court which denied jurisdiction, but took no position on the merits .of the case.
In our opinion, the fact that General Motors elected under Title 49 U.S. C.A. § 9 to make complaint to the Commission instead of the Court did not preclude it from obtaining judicial review of an adverse order of the Commission. This is implicit in the decision of the Supreme Court in United States v. Interstate Commerce Commission, 337 U.S. 426, 69 S.Ct. 1410, 93 L.Ed. 1451 which held that Congress never intended to vest final jurisdiction in the Commission and that its orders were subject to judicial review. We do not believe it makes any difference that in the present case only the issue of reparations was involved before the Commission. As to this the Supreme Court said:
“Accordingly, we hold that § 9 does not impair the right of shippers to obtain judicial review of adverse Commission orders under § 41(28) merely because the order is sought as a basis for reparations.” Id. p. 440, 69 S.Ct. p. 1418.
See also: Great Lakes Steel Corp. v. United States, 337 U.S. 952, 69 S.Ct. 1530, 93 L.Ed. 1753; Union Pacific Railroad Co. v. Price, 360 U.S. 601, 615, 618, 79 S.Ct. 1351, 3 L.Ed.2d 1460.
In our judgment, the District Court erred in holding that it had no jurisdiction.
This brings us to a consideration of the merits of the case. As we see it, our function is limited to a determination whether the order of the Commission was supported by substantial evidence and correctly applied the law. Great Lakes Steel Corp. v. United States, 220 F.2d 751 (CA 6), cert. denied 350 U.S. 821, 76 S.Ct. 47, 100 L.Ed. 734.
There was no dispute between the parties over the facts in the • case. The representative shipment consisted of a mixed carload of cooling boxes, drying machines, refrigerators and electric stoves. The railroads had computed the freight rates on the shipment applying old exceptions tariffs and ratings which are published for each article in the shipment when shipped in straight carload quantities and had been in force prior to May 30, 1952. There was no carload exception rating. This resulted in a charge of $546.60 which the railroads collected for the shipment. General Motors claims the rates should be computed on new uniform freight classification and rátes which became effective on May 30, 1952. The new class rates rated each item shipped separately, but had a mixed carload rating (Class 55) which was lower. If the charges for the shipment had been computed under the mixed carload rating they would have amounted to $507.94.
This is shown by the application of the rates to the representative shipment as follows:
The only question in the case was which one of the two tariffs applied to the shipment, i. e., the old exceptions tariff and rates or the new uniform classification ratings and new class rates.
The railroads had established the new uniform class rate scale and a uniform class rate schedule to govern those rates on May 30, 1952 in compliance with orders of the Commission. The Commission had made extensive readjustments of classifications and underlying class rate structures and a uniform classification was ordered prepared and applied throughout the United States. Uniform classification ratings were not prescribed by the Commission, but were left for the railroads to establish. The proceedings before the Commission did not involve commodity rates nor exception rates or ratings.
It was contemplated that the exception rates and commodity rates would ultimately be worked into the new uniform classification and uniform class rate scale by the railroads. This was a task of some magnitude which would involve considerable work and would take time to evolve. In order to preserve the exception ratings until this could be done the railroads published a new rule, Item 300-B, which provided as follows:
NON-APPLICATION OF CLASS RATES WHERE A COMMODITY RATE CLASSIFICATION EXCEPTION OF COLUMN RATING IS IN EFFECT.
Class rates published herein from and to all points via all routes are not applicable on any article or commodity when there is in effect a commodity rate, classification exception or column rating between the same points via any route on such article or commodity.
Before this rule became effective it was changed to read as follows:
Class rates published in tariff, as amended, will not apply where there is in effect on a given shipment a commodity rate, classification exception or column rating between the same points via any route.
The reason for the change was that-it was thought the words “on any article or commodity” were ambiguous and might prevent the application of uniform class rates on carload shipments of any article or commodity if there were exceptions applicable on less than carload shipments.
The Commission in considering this rule said:
The defendants’ objective in publishing item 300 was to remove any possible alternation of the uniform class rates where exceptions ratings were established, and the original phrasing of the provision makes that fact abundantly clear. The question then is, did the substitution of ‘on a given shipment’ for ‘on any article or commodity’ so alter the meaning of the provision as to warrant a determination that the original objective also was intended to be changed. Bearing in mind the reason for the amendment of the language, we think that a fair and reasonable interpretation of the provision is that where an exceptions rating or ratings (in the case of mixed-carload quantities) were in effect ‘on a given shipment,’ the uniform class rates could not be considered in determining the applicable charges.
Shippers in other proceedings had previously sought to persuade the Commission to require the railroads to alternate the old exceptions ratings and rates with the new uniform classification and rates and to apply the lower basis or require cancellation of the old exceptions class rates, but the Commission denied such relief.
It is further claimed that neither the Commission or the District Court gave any consideration to Item 5 (Exception to the mixed-carload rule 10 in the Uniform Freight Classification.) This Item states “Except as otherwise provided. * * * ” It was otherwise provided in Item 300-B and hence Item 5 has no application.
The Commission, in holding that the railroads were correct in applying the old exceptions tariffs and rates, construed the applicable tariff provisions in the light of their history and what they were intended to accomplish. We think its decision was supported by substantial evidence and that it correctly applied the rules of law. There was certainly a rational basis for the conclusion which it reached as was held by the District Court. Mississippi Valley Barge Line Co. v. United States, supra.
The judgment of the District Court upholding the order of the Commission and dismissing the complaint is, therefore 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_numresp
|
5
|
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.
The CINCINNATI GAS AND ELECTRIC COMPANY; the Dayton Power and Light Company; Columbus and Southern Ohio Electric Company, Plaintiffs-Appellees, v. GENERAL ELECTRIC COMPANY; Sargent and Lundy Engineers, and the individual partners of Sargent and Lundy, Defendants-Appellees, The Cincinnati Post, a division of the E.W. Scripps Company; Dayton Newspapers, Inc., d/b/a the Dayton Daily News and Journal Herald; the Dispatch Printing Company d/b/a the Columbus Dispatch, Non-Party Appellants.
Nos. 87-3950, 87-4054.
United States Court of Appeals, Sixth Circuit.
Argued April 8, 1988.
Decided Aug. 18, 1988.
Stephen Patsfall, John Flessa, Wood & Lamping, Cincinnati, Ohio, Bruce W. Sanford (argued), Baker & Hostetler, Washington, D.C., David L. Marburger, Caryn L. Zimmerman, Baker & Hostetler, Cleveland, Ohio, for non-party appellants.
Robert G. Stachler, Cincinnati, Ohio, for CG & E.
Stephen F. Koziar, Dayton, Ohio, for Dayton Power.
Michael P. Graney, A. Joseph Dowd, John B. Shinnock, Columbus, Ohio, for Columbus & Southern Ohio Elec. Co.
Dale A. Baich, amicus curiae, for Ohio Citizens for Responsible Energy, Inc.
Before KEITH, and NORRIS, Circuit Judges, and EDWARDS, Senior Circuit Judge.
KEITH, Circuit Judge.
Appellants, The Cincinnati Post, et al., appeal pursuant to 28 U.S.C. § 1291 from orders issued by the district court on September 14, 1987, October 5, 1987, and November 20, 1987, which appellants contend denied them their first amendment right of access to the summary jury trial conducted in the underlying action. For the reasons set forth below, we AFFIRM the district court.
I.
This appeal arises out of a lawsuit involving the design and construction of the William H. Zimmer Nuclear Power Plant (“Plant”). The plaintiffs below, The Cincinnati Gas and Electric Company, The Dayton Power and Light Company and Columbus and Southern Ohio Electric Company (plaintiffs-appellees), were three Ohio electric utility companies that undertook jointly to build the Plant. In July of 1984, plaintiffs filed a lawsuit against the General Electric Company and Sargent & Lundy Engineers (defendants-appellees), an architectural and engineering firm, alleging breach of contractural duties and common law concerning the modification of the Plant. Plaintiffs later amended their complaint against the General Electric Company to add fraud and RICO claims.
From the outset of this litigation, the parties recognized the need for confidential treatment of much of the material that would be produced in discovery. As a result, the parties negotiated a comprehensive protective order, which the magistrate approved on December 6, 1984. See Joint Appendix at 243. This order provided varying degrees of protection for documents classified as “Confidential” or “Highly Confidential” by the party producing them. The order restricted the use by nonproducing parties of documents accorded either level of confidentiality to “the prosecution or defense of this action,” or to other proceedings arising in connection with the Plant. Id. at 245. In addition, the order provided that any reference to “Highly Confidential” documents in motions, briefs, or other court papers or filings had to be accompanied by appropriate markings and separately filed under seal. Id. at 247.
On June 26, 1987, the district court issued an order requiring the parties to participate in a summary jury trial scheduled to commence on September 8, 1987. The order included a provision closing the proceeding to the press and public. That provision stated that “[t]he proceedings, and all results thereof, shall be confidential, and shall not be disclosed other than to the parties, their attorneys, consultants and insurers. The jurors shall be appropriately instructed as to such confidential treatments.” Joint Appendix at 222.
On September 4, 1987, appellants moved to intervene in the underlying action for the limited purpose of challenging the order closing the summary trial. On September 14, 1987, 117 F.R.D. 597, the district court denied appellants’ motion to intervene, holding that they had no right to attend the summary jury trial. The court observed that “[t]he summary jury trial, for all it may appear like a trial, is a settlement technique.” Joint Appendix at 185. Accordingly, the court held that the press had no first amendment right of access because: (1) there is no tradition of access to summary jury trials or to other recognized settlement devices, Joint Appendix at 180; and (2) public access “does not play a particularly significant positive role” in the functioning of the summary jury trial because “the proceeding is non-binding and has no effect on the merits of the case, other than settlement.” Joint Appendix at 190.
On October 5, 1987, the district court amended its September 14, 1987, order: (1) to incorporate an oral order issued on September 21, 1987, restricting communications between the mock jurors and the press and public until the case had ended; and (2) to add a provision requiring that “the list identifying prospective jurors on the panel for the summary jury trial, as well as those who actually served on the summary jury trial, shall remain sealed until the conclusion of this litigation.” The court explained that “[t]o disclose [the mock jurors’] identity at this time may defeat the confidentiality of the jury’s decision and would be inconsistent with our Order closing the proceedings to the public.” Joint Appendix at 193-194.
Less than two months after the conclusion of the summary jury trial, the parties reached a settlement. On November 20, 1987, the district court issued an order approving the terms of the settlement and dismissing the action with prejudice. The court continued the gag orders and the sealing of the transcript and jury list, ruling that “all other Orders in this case concerning the confidentiality of documents and the summary jury trial remain in effect.” Joint Appendix at 200-201.
II.
The precise issue before us is whether the first amendment right of access attaches to the summary jury proceeding in this case. Appellants argue that the district court erred in refusing to allow them to intervene for the purpose of attending the summary jury trial proceeding. Appellants specifically argue that: (1) the summary jury proceeding is analogous in form and function to a civil or criminal trial on the merits, and therefore, the first amendment right of access which encompasses civil and criminal trial and pre-trial proceedings also encompasses the summary jury proceedings; and (2) public access would play a significant positive role in the functioning of the judicial system and summary jury trials. See Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986) (“Press-Enterprise IP’); Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980); Brown & Williamson Tobacco Corp. v. F.T.C., 710 F.2d 1165 (6th Cir.1983), cert. denied, 465 U.S. 1100, 104 S.Ct. 1595, 80 L.Ed.2d 1-27 (1984); Applications of National Broadcasting Co., Inc., 828 F.2d 340 (6th Cir.1987).
Appellees contend that the first amendment right of access does not apply to summary jury proceedings. Appellees argue that settlement proceedings are totally lacking in any tradition of public access, and that appellants exalt form over function in arguing that a summary jury trial is no different from a trial on the merits. See, e.g., Palmieri v. New York, 779 F.2d 861, 865 (2d Cir.1985) (citation omitted) (“[sjecrecy of settlement terms ... is a well-established American litigation practice ...”). Appellees further argue that public access would not play a significant positive role in the functioning of summary jury trials. We agree with appellees’ arguments and hold that the first amendment right of access does not attach to summary jury trial proceedings.
The Supreme Court has in recent years decided a number of cases dealing with the right of access. See Gannett Co. v. De-Pasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980); Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982); Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed. 2d 629 (1984) (“Press-Enterprise I’); Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984); Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986) (“Press-Enterprise II”).
In Press Enterprise II the Court held that a qualified right of access applied in criminal proceedings to a preliminary hearing which was conducted before a magistrate in the absence of a jury. The Court held that the analysis of a first amendment claim of access involves two “complimentary considerations.” First, the proceeding must be one for which there has been a “tradition of accessibility.” Press Enterprise II, 106 S.Ct. at 2740 (citation omitted). This inquiry requires a court to determine “whether the place and process [to which access is sought] has historically been open to the press and general public.” Id. (citation omitted). Second, public access must play a “significant positive role in the functioning of the particular process in question.” Id. (citation omitted). Moreover, even if these elements are satisfied, the right of access is a qualified one and must be outweighed by a strong countervailing interest in maintaining the confidentiality of the proceedings. Id. at 2741 (citation omitted).
With regard to the first part of the test, we concur with the district court that “there is no historically recognized right of access to summary jury trials in that this mechanism has been in existence for less than a decade.” Joint Appendix at 180. The summary jury trial is a device that is designed to settle disputes. Lambros, The Summary Jury Trial, A Report to the Judicial Conference of the United States, 103 F.R.D. 461, 465 (1984). Settlement techniques have historically been closed to the press and public. See, e.g., Palmieri, 779 F.2d at 865. Thus, we find that “while the history of the summary jury trial is limited, there is general agreement that historically settlement techniques are closed procedures rather than open.” Joint Appendix at 182.
Appellants argue that summary jury trials are structurally similar to ordinary civil jury trials, which have historically been open to the public. However, it is clear that while the summary jury trial is a highly reliable predictor of the likely trial outcome, there are manifold differences between it and a real trial. In a summary jury proceeding, attorneys present abbreviated arguments to jurors who render an informal verdict that guides the settlement of the case. Normally, six mock jurors are chosen after a brief voir dire conducted by the court. Following short opening statements, all evidence is presented in the form of a descriptive summary to the mock jury through the parties’ attorneys. Live witnesses do not testify, and evidentiary objections are discouraged. Lambros, The Summary Jury Trial, 103 F.R.D. at 483-84. Thus, some of the evidence disclosed to the mock jury might be inadmissible at a real trial. See Spiegel, Summary Jury Trials, 54 U.Cin.L.Rev. 829, 830-31 (1986).
Following counsels’ presentations, the jury is given an abbreviated charge and then retires to deliberate. The jury then returns a “verdict.” Lambros, The Summary Jury Trial, 103 F.R.D. at 484. To emphasize the purely settlement function of the exercise, the mock jury is often asked to assess damages even if it finds no liability. Also, the court and jurors join the attorneys and parties after the “verdict” is returned in an informal discussion of the strengths and weaknesses of each side’s case. Lambros, The Summary Jury Trial —An Alternative Method of Resolving Disputes, 69 Judicature 286, 289 (Feb.Mar. 1986).
At every turn the summary jury trial is designed to facilitate pretrial settlement of the litigation, much like a settlement conference. It is important to note that the summary jury trial does not present any matter for adjudication by the court. Thus, we find appellants’ argument to be unpersuasive and therefore hold that the “tradition of accessibility” element has not been met.
The second criterion in the Court’s public access analysis is whether access “plays a significant positive role in the functioning of the particular process in question.” Press-Enterprise II, 106 S.Ct. at 2740. Appellants contend that public access would have community theraputic value because of the importance of the nuclear power and utility rate issues raised. We disagree.
“[I]t is necessary to consider whether the ‘practice in question [furthers] an important or substantial governmental interest unrelated to the suppression of expression’ and whether ‘the limitation of First Amendment freedoms [is] no greater than is necessary or essential to the protection of the particular governmental interest involved.’ ” Seattle Times Co. v. Rhinehart, 467 U.S. 20, 32, 104 S.Ct. 2199, 2207, 81 L.Ed.2d 17 (1984). The summary jury trial can play a particularly useful role in facilitating the settlement of complex cases and is typically employed in cases that either will consume significant judicial resources if they proceed to trial, or that are not amenable to settlement through other techniques. However, where a party has a legitimate interest in confidentiality, public access would be detrimental to the effectiveness of the summary jury trial in facilitating settlement. Thus, public access to summary jury trials over the parties’ objections would have significant adverse effects on the utility of the procedure as a settlement device. Therefore, allowing access would undermine the substantial governmental interest in promoting settlements, and would not play a “significant positive role in the functioning of the particular process in question.” Press-Enter prise II, 106 S.Ct. at 2740.
Appellants’ claim of a public “right to know” has no validity with regard to summary jury trials. As the lower court correctly noted, the public would have no entitlement to observe any negotiations leading to a traditional settlement of the case, Joint Appendix at 186, and the parties would be under no constitutional obligation to reveal the content of the negotiations. Thus, the public has no first amendment right to access to the summary jury trial.
Appellants also argue that the summary jury trial should be open to the public because the facilitation of a settlement between the parties has a final and decisive effect on the outcome of the litigation. To support their argument, appellants rely on the Court’s language in Press-Enterprise II, 106 S.Ct. at 2742-43, that preliminary criminal hearings must be open to the public because of their decisive effect on criminal cases. We disagree.
In contrast to the summary proceedings in this case, the proceeding at issue in Press-Enterprise II resulted in a binding judicial determination which directly affected the rights of the parties. Summary jury trials do not present any matters for adjudication by the court. Thus, it is the presence of the exercise of a court’s coercive powers that is the touchstone of the recognized right to access, not the presence of a procedure that might lead the parties to voluntarily terminate the litigation. Therefore, we find appellant’s argument to be meritless.
Accordingly, for the reasons set forth above, we AFFIRM the judgment of Judge Arthur Spiegel, United States District Court, Southern District of Ohio.
. The summary jury trial was developed in 1980 by United States District Judge Thomas D. Lambros. The primary purpose of the summary jury trial is the “settlement of disputes.” Lambros, The Summary Jury Trial, A Report to the Judicial Conference of the United States, 103 F.R.D. 461, 465 (1984).
. Moreover, Judge Spiegel emphasized that the summary jury trial was conducted with "the cooperation of the parties" and that his order closing the summary jury trial was in response to General Electric’s substantial concerns regarding the potential lack of confidentiality. Joint Appendix at 184.
. Appellees also argue that appellants’ motion to intervene was untimely and no reasonable explanation for the delay can be proffered. See Stotts v. Memphis Fire Department, 679 F.2d 579, 582 (6th Cir.), cert. denied, 459 U.S. 969, 103 S.Ct. 297, 74 L.Ed.2d 280 (1982). We need not entertain this issue because we are in agreement with the lower court that "the [substantive] issues raised ... [are] sufficiently serious to merit our consideration.” Joint Appendix at 178.
. Courts have the power to conduct summary jury trials under either Fed.R.Civ.P. 16, or as a matter of the court's inherent power to manage its cases. See Link v. Wabash Railroad Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962); see also Lambros, The Summary Jury Trial, A Report to the Judicial Conference of the United States, 103 F.R.D. at 469.
. Appellants’ assertion that the summary jury trial is like an adjudication because the parties ■ are compelled to participate is incorrect. The district court expressly stated that the proceeding was undertaken with the cooperation of the parties. Although the court denied appellants’ motion to vacate the order setting the summary jury trial, it accommodated appellants’ concerns to keep the proceeding confidential, thereby making it unnecessary for appellants to challenge the court’s denial of the motion.
. Consistent with this rationale, courts have rejected first amendment claims of access, even though the information involved was of undeniable public interest. See Seattle Times, 467 U.S. at 31, 104 S.Ct. at 2206 (trial court permitted to prohibit public dissemination of information obtained in pretrial discovery notwithstanding that “there certainly is a public interest in knowing about respondents”); The Courier-Journal v. Marshall, 828 F.2d 361, 363 (6th Cir.1987) (newspapers had no first amendment right of access to discovery materials, despite the recognition that "proceedings [were] of intense public concern”).
. Summary jury trials do not affect the parties’ right to a full trial de novo on the merits. "If one or both parties feel the result of the jurors’ deliberations is grossly inequitable, the right to proceed to a full trial is in no way prejudiced.” Lambros, The Summary Jury Trial, 103 F.R.D. at 482.
Question: What is the total number of respondents in the case? Answer with a number.
Answer:
|
songer_treat
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals.
UNITED STATES of America, Appellee, v. Anthony BROWN, Appellant.
No. 89-3216
United States Court of Appeals, District of Columbia Circuit.
Argued Dec. 10, 1990.
Decided Dec. 28, 1990.
Rehearing and Rehearing En Banc Denied Feb. 14, 1991.
Mary E. Davis, Washington, D.C., (appointed by this Court), for appellant.
Denise M. Abrahams, Asst. U.S. Atty., Dept, of Justice, with whom Jay B. Stephens, U.S. Atty., John R. Fisher, Thomas C. Black and Patricia Stewart, Asst. U.S. Attys., Dept, of Justice, were on the brief, for appellee.
Before WALD, Chief Judge, EDWARDS and D.H. GINSBURG, Circuit Judges.
Opinion for the Court filed by Chief Judge WALD.
WALD, Chief Judge:
Anthony Brown challenges his conviction on charges of possession with intent to distribute a substance containing phencycli-dine (“PCP”) in violation of 21 U.S.C. § 841. He argues, first, that the trial court erred in admitting into evidence a police officer’s testimony, on re-direct examination, that he had been told that Brown and an informant had had “previous dealings of PCP.” We find that the testimony was inadmissible hearsay and that, although defense counsel did, on cross-examination, initiate a line of questioning concerning the informant’s identification of Brown, he did not “open the door” to the officer’s later hearsay testimony. However, because the government did not exploit this erroneously-admitted testimony and because the remainder of the government’s evidence was very substantial, we find that the trial court’s error was harmless.
Brown also challenges the trial court’s enhancement of his sentence under the repeat offender provision set forth in 21 U.S.C. § 841(b)(1)(B). He argues that the government and the trial court failed to comply with the filing requirements established by statute. We disagree and find that the trial judge’s acceptance of the enhancement papers in open court was sufficient to satisfy the statutory filing requirements. Accordingly, we affirm Brown’s conviction and sentence.
I. Background
In mid-1989, Samantha and Richard Anderson were arrested by the D.C. Metropolitan Police Department on charges of cocaine possession. These charges were “no-papered” and the Andersons began cooperating with the Department in its investigation of the PCP trade. They introduced police officers to PCP dealers, arranged and made “controlled purchases” of drugs, and, in some instances, testified in criminal prosecutions.
In one such controlled purchase, the Andersons arranged to purchase six bottles of PCP for $1,600. Pursuant to the agreement, the Andersons went to a local hospital and called the seller's telephone pager. The seller called back, directing the Andersons to proceed to a local restaurant and to call the pager again. The Andersons informed the police, who then placed the restaurant under surveillance. At the restaurant, Mr. Anderson called the pager; the seller called back and said that he would be there shortly and would be wearing a red, white, and blue shirt. Fifteen minutes later, police officers observed Brown get out of a car, lean over a wall in the parking lot of the restaurant, and enter the restaurant for a brief period. Brown was then observed talking to Mrs. Anderson, who was alone in the car while her husband made another phone call. Mrs. Anderson testified that Brown said he was going to get the “water” — a slang term for PCP. As Brown walked away, Mrs. Anderson signalled police officers, who then arrested Brown. Brown was wearing a red, white, and black jacket and on his person, police found a beeper which displayed the telephone numbers of the two phones from which the Andersons had arranged the purchase.
After a brief search, police found, near the wall in the parking lot, a beige plastic bag containing six bottles of PCP. The police also arrested three persons in the car in which Brown had arrived and found, in the car’s trunk, an identical beige plastic bag.
At trial, defense counsel and D.C. Police Sergeant Wilson (who was present at the arrest) engaged in the following exchange:
Q. Did you debrief the Andersons after Mr. Brown was arrested?
A. Yes.
Q. And at that time when you debriefed them after Mr. Brown was arrested, did either of them state they had seen Mr. Brown before?
A. Yes.
Q. And which Anderson said he had seen Mr. Brown before, or she had seen?
A. Mrs. Anderson.
Q. [I]s there a reference in any of your police reports or in any of your notes with reference to the fact that Mrs. Anderson told you she had seen Mr. Brown before?
A. I don’t know. None of my personal notes.
Q. And is there any reference during your testimony before the grand jury in this courthouse that Mrs. Anderson had seen Mr. Brown before?
A. I don’t remember that.
On re-direct examination of Sergeant Wilson, the prosecutor extended this line of questioning:
Q. Now, counsel asked you whether either Mr. Anderson or Mrs. Anderson could identify [Brown] and you responded you learned Mrs. Anderson could identify him. Do you know how she could identify him? Did you learn that?
Defense Counsel: Objection, unless it is personal knowledge, Your Honor.
Q. Well, he opened it up, Your Honor.
The Court: All right. Do you know? If you don’t know, then
A. I was told it was from previous dealings of PCP.
A jury subsequently convicted Brown of possession of PCP with intent to distribute. On appeal, Brown contends that the trial court erred in admitting Sergeant Wilson’s testimony.
II. Admissibility of Wilson’s Statement
Brown argues that Wilson’s statement on re-direct was inadmissible hearsay. We agree and reject the government’s contention that defense counsel, in his cross-examination, “opened the door” to Wilson’s testimony.
Wilson’s statement—that he had been told that Mrs. Anderson and Brown had met during earlier dealings of PCP— was classic hearsay, an out-of-court statement offered in evidence to prove the truth of the matter asserted. See Fed.R.Evid. 801(c). Although the government suggests that the statement was offered to rehabilitate Wilson’s testimony after defense counsel challenged Wilson’s credibility, we do not agree. How testimony that Anderson and Brown met during prior drug dealings could have enhanced Wilson’s credibility is not at all clear. If anything, the fact that Wilson failed to write down such a significant fact arguably weakened his credibility. Thus, we find that Wilson’s statement on cross-examination was hearsay.
Wilson’s testimony may nonetheless have been admissible if, as the government contends, the defendant “opened the door” to the hearsay. Under the “curative admissibility” doctrine, the introduction of inadmissible or irrelevant evidence by one party justifies or “opens the door to” admission of otherwise inadmissible evidence. See Cleary, McCormick on Evidence § 57 (3d ed. 1984); see also United States v. Whitworth, 856 F.2d 1268, 1285 (9th Cir.1988), cert. denied, 489 U.S. 1084, 109 S.Ct. 1541, 103 L.Ed.2d 846 (1989); United States v. Childs, 598 F.2d 169, 174 (D.C.Cir.1979). In this case, however, the curative admissibility doctrine did not render the hearsay testimony admissible, for two reasons. First, defense counsel did not “open the door” by introducing inadmissible or irrelevant evidence. Wilson’s statement that Anderson and Brown had met previously was elicited by the defense at cross-examination, but was not inadmissible because it fit squarely within the prior-identification exception to the ban on hearsay. See Fed.R.Evid. 801(d)(1)(C). Accordingly, the precondition for curative admissibility had not been met; because the door had not been opened, Wilson’s hearsay testimony could not be admitted.
Even if defense counsel had opened the door by questioning Wilson about his notes and challenging his credibility, it does not follow that all subsequent evidence is admissible. As this court has long recognized: “ ‘Opening the door is one thing. But what comes through the door is another.’ ” United States v. Winston, 447 F.2d 1236, 1240 (D.C.Cir.1971). “Introduction of otherwise inadmissible evidence under shield of [curative admissibility] is permitted ‘only to the extent necessary to remove any unfair prejudice which might otherwise have ensued from the original evidence.’ ” Id. (citation omitted); cf. Whitworth, 856 F.2d at 1285; Childs, 598 F.2d at 174. In this case, all that was at issue was Wilson’s credibility. Thus, even if the defense did open the door, it only did so to the extent of admitting evidence that rehabilitated that credibility. As noted above, Wilson’s hearsay testimony concerning Brown’s pri- or activities was certainly not relevant to Wilson’s credibility.
“Curative admissibility” is a shield, not a sword. Although the government may prevent a defendant from using rules of evidence to select and enter pieces of evidence wholly out of context, the government may not shore up a prosecution by pushing through the open door evidence not “necessary to remove any unfair prejudice” created by defense counsel’s tactics. In sum, the range of otherwise-inadmissible evidence that may be squeezed through an “open door” is limited. In this case, the government exceeded those limits and Wilson’s statement was therefore inadmissible hearsay.
III. Harmless ErroR Analysis
Despite the trial court’s error in admitting Wilson’s hearsay testimony, we need not upset Brown’s conviction if we find that the court’s error was harmless. See Fed.R.Crim.P. 52(a). Because of the very substantial evidence indicating Brown’s guilt and because the government made no further use of the hearsay testimony, we find that the trial court’s error was harmless.
The government’s evidence against Brown was considerable and coherent. Brown's clothing resembled the clothing that the PCP seller told the Andersons he would be wearing. A bag containing the pre-arranged number of bottles of PCP was found close to where Brown was standing. An identical bag was found in the car in which Brown arrived. Perhaps most significantly, the telephone pager recovered from Brown displayed the telephone numbers of the phones over which the deal had been arranged. Indeed, after the arrest, the confiscated pager received a call. Police returned the call, set up a PCP “sale” and arrested the buyer. Based on this evidence we cannot say that this was a “close” case, United States v. Hernandez, 780 F.2d 113, 119 (D.C.Cir.1986); Wilson’s hearsay testimony was but a small part of the prosecution’s overall scheme of inculpa-tory evidence. Moreover, the government did not exploit the erroneously-admitted hearsay testimony. Throughout both its case-in-chief and its summation, the prosecution did not invoke the evidence of Brown’s prior acts. Cf. United States v. Hernandez, 750 F.2d 1256 (5th Cir.1985) (reversing conviction in part because prosecutor’s closing argument emphasized inadmissible evidence). For these reasons, we find that the trial court’s admission of Wilson’s statement did not constitute reversible error. Accordingly, we affirm Brown’s conviction.
IV. SENTENCE Enhancement
Brown also contends that the district court erred in enhancing his sentence; in particular, he maintains that the government failed to comply with the filing requirements of 21 U.S.C. § 851(a)(1). That section provides that the government must “before trial ... file[ ] an information with the court ... stating in writing the previous convictions to be relied upon.” 21 U.S.C. § 851(a)(1) (emphasis supplied). In this case, the government orally notified defense counsel of its intentions under § 851 on August 29, 1989—the day trial was originally scheduled to begin. The trial was pushed back two days and when, on the day of the trial, the judge accepted the § 851 papers in court, the defense objected on the grounds of untimeliness. After the voir dire began, the defense again challenged the § 851 filing. The judge responded, “The [papers] were filed in open court. No problem with that. He has notice.”
The defense claims that the filing of the § 851 papers—and thus the sentence enhancement—were infirm. Although it is true that the papers were not filed with the clerk before the day of trial, under the rules of civil procedure (which Federal Rule of Criminal Procedure 49(d) incorporates by reference), a filing “shall be made by filing ... with the clerk ..., except that the judge may permit the papers to be filed with the judge, in which event the judge shall note thereon the filing date and forthwith transmit them to the office of the clerk.” Fed.R.Civ.P. 5(e) (emphasis supplied). Thus, in this case, the defendant’s only claim is that the trial judge, in accepting the § 851 papers, failed to comport with this Rule.
The defendant’s claim is twofold. First, he contends that the judge did not “permit” papers to be filed with him; second, he contends that the judge did not follow the Rule’s procedures. We disagree, for we find the defendant’s reading of Rule 5(e) overly formal and unduly constrictive of a trial judge’s authority and discretion in the management of a criminal proceeding. Contrary to the defendant’s contention, the judge, in “permit[ting]” a filing, need not utter particular words or offer particular reasons; all that is required is that the judge knowingly accept the filing. Similarly, we do not read the Rule so narrowly as to require a judge to interrupt proceedings in order to deliver the papers to the clerk. In this case, there is no evidence that the judge failed to note the filing date and forward the papers to the Clerk’s office; indeed, as the record indicates, the clerk’s office marked the filing at issue as received on the day of trial—August 31, 1989. Perhaps most significantly, the judge ensured that the purposes of the filing requirements were fulfilled, taking care to note that the defense had had advance notice of the filing and to give the defense ample opportunity to seek a continuance or brief recess to reconsider its trial strategy. Under these circumstances, we find that the judge, in accepting the § 851 papers in open court, substantially complied with the filing requirements of Rule 5(e). In sum, although the trial court may not have precisely complied with the technical requirements of the Rule, we find that the judge’s acceptance of the filing, combined with the adequate notice granted defense counsel, met the requirements of both the Rule and the statute.
For these reasons, we affirm appellant’s conviction and sentencing.
So ordered.
. Telephone pagers or beepers, which apparently are widely-used in illegal drug transactions, record and store telephone numbers entered by callers.
. As indicated in the transcript excerpt, defense counsel promptly objected to Wilson’s statement as hearsay; accordingly, we look directly at whether the trial court erred in admitting Wilson’s statement into evidence.
. The Fifth Circuit reached a similar conclusion in a like situation in United States v. Hernandez, 750 F.2d 1256, 1257 (1985). In that case, a DEA agent testified as follows;
Q. ... [WJhat first brought the attention of the [DEA to] Hernandez?
A. We received a referral by the U.S. Customs as Hernandez being a drug smuggler. Reviewing Hernandez’s conviction, the court found that the agent's response was hearsay, rejecting as contrary to “common sense" the government’s claim that the statement was simply offered to show the "motivation behind DEA’s investigation.” Id.
. Brown also contends that Wilson’s statement constituted prejudicial evidence of prior bad acts and that the trial court erred in admitting that statement. See Fed.R.Evid. 403, 404. However, defense counsel failed to object on these grounds at trial; accordingly, any review of this issue would apply a “plain error” standard. See Fed.R.Evid. 103(d). Because we find that the trial court’s error in admitting Wilson’s inadmissible hearsay was harmless, see Part III infra, we need not decide Brown’s Rule 403-404 contentions. Any violation of those Rules in this case would certainly not rise to the level of plain error.
. Brown also contends that the government failed to comply with 21 U.S.C. § 851(b), which requires that, before sentencing, the court “inquire of the [defendant] ... whether he affirms or denies that he has been previously convicted” and "inform him that any [new] challenge to a prior conviction ... may not thereafter be raised to attack the sentence.” Upon review of the record, we find that the trial court substantially complied with these requirements and offered Brown ample opportunity to deny the previous conviction relied upon by the government.
. Because we find the in-court filing satisfactory, we need not reach the question urged upon us by Brown—namely, when does a trial begin for purposes of § 851? Cf. United States v. Jordan, 810 F.2d 262, 269 (D.C.Cir.), cert. denied, 481 U.S. 1032, 107 S.Ct. 1963, 95 L.Ed.2d 535 (1987) (discussing this issue).
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_indigent
|
A
|
What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule that the defendant's rights as an indigent were violated?" 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".
Thomas GASKINS, Appellant, v. The Honorable Robert F. KENNEDY, Attorney General, and Kermit A. Weak-ley, Superintendent, D. C. Reformatory, Lorton, Virginia, Appellees.
No. 9863.
United States Court of Appeals Fourth Circuit.
Argued May 7, 1965.
Decided Aug. 2, 1965.
Harvey B. Cohen, Arlington, Va. (Court-assigned counsel) [Tolbert, Lewis & Fitzgerald, Arlington, Va., on brief], for appellant.
MacDougal Rice, Asst. U. S. Atty. (C. V. Spratley, Jr., U. S. Atty., on brief), for appellees.
Before BOREMAN and J. SPENCER BELL, Circuit Judges, and BUTZNER, District Judge.
J. SPENCER BELL, Circuit Judge:
This appeal is from an order of the District Court for the Eastern District of Virginia dismissing a petition for a writ of habeas corpus without an evidential hearing. The district court entertained the habeas petition filed on June 29, 1964, and required the United States to make a return showing why the writ should not be granted. Thereafter the court, being of the opinion that the petitioner, Thomas Gaskins, was lawfully confined, dismissed the petition.
Gaskins, after having been convicted of violating 21 U.S.C.A. § 174 and 26 U.S.C.A. §§ 4704(a) and 4705(a) (narcotics violations), was sentenced on February 15, 1957, by the United States District Court for the District of Columbia to a prison term of nine years. He was confined in the District of Columbia Reformatory at Lorton, Virginia, where his good time allowance was computed under the provisions of 18 U.S.C.A. § 4161. He was conditionally released from Lorton on April 29, 1963, under the provisions of 18 U.S.C.A. § 4164, to remain in that status under the general supervision of the District of Columbia Board of Parole [hereinafter D.C. Parole Board] until the expiration of his sentence on August 18, 1965.
On December 24, 1963, a parole violator warrant was issued for Gaskins’ arrest by the D.C. Parole Board pursuant to section 24-205 of the District of Columbia Code [hereinafter D.C. Code] for alleged violations of the conditions of his release. On December 30, 1963, the warrant was executed, and Gaskins was returned to Lorton where his sentence was recomputed under the appropriate provisions of the D.C. Code, resulting in a mandatory release date of March 29, 1966. On February 20, 1964, the petitioner was given a hearing on the alleged violations of the conditions of his good time release; after this hearing the D.C. Parole Board, acting under section 24-206 of the D.C. Code, entered an order revoking his conditional release. Gaskins then filed the petition involved on this appeal.
Counsel for the petitioner asserts that he is presently illegally confined for three reasons: (1) as one who was convicted of violating a general federal law (as distinguished from a criminal statute of the District of Columbia), he is not subject to the supervision of the D.C. Parole Board, and therefore section 24-206 of the D.C. Code empowering the D.C. Parole Board to revoke a parole release is not applicable to him; (2) as a narcotics violator subject to the mandate of 26 U.S.C.A. § 7237(d), he is not subject to the provisions of the D.C. Code dealing with parole, specifically sections 24-201a through 24-209; and (3) he was denied due process when counsel was not assigned to him as an indigent at the hearing held prior to the revocation of his conditional release.
The petitioner’s first two contentions are without merit for the reasons stated in our opinion announced this day in Fuller v. Weakley, 349 F.2d 90. As for his third assertion, the prisoner’s petition itself states that his conditional release was revoked because he failed to make a required report to his parole supervisor in November, 1963, and Gaskins has never disputed this factual allegation. The response of the Government in this proceeding has appended to it an affidavit of the Secretary of the D.C. Parole Board which recites that the petitioner violated the terms of his conditional release in this and other respects. In Jones v. Rivers, 338 F.2d 862 (4 Cir. 1964), a panel of this court considered the question of the right of an indigent parolee or conditional releasee to be provided with counsel to represent him at a revocation hearing. Although the members of that panel expressed divergent views, we accept the decision in Jones as holding, at the very least, that at a routine rev-ocation hearing where the factual basis for revocation is not disputed, an indigent violator of the terms of his conditional release is not entitled to have counsel appointed to represent him. The instant case comes within that holding in Jones. See also Hyser v. Reed, 115 U.S.App.D.C. 254, 318 F.2d 225, 238 (1963).
For these reasons the order of the district court is affirmed.
Affirmed.
. This section provides in essence that a prisoner who has been conditionally released “shall upon release be treated as if released on parole * * *."
Question: Did the court rule that the defendant's rights as an indigent were violated?
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer:
|
songer_constit
|
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 constitutionality of a law or administrative action, and if so, whether the resolution of the issue by the court favored the appellant.
Prentiss M. BROWN, Administrator, Office of Price Administration, Appellant, v. Thomas J. O’CONNOR and Helen H. O’Connor, Appellees.
No. 10723.
Circuit Court of Appeals, Fifth Circuit.
April 14, 1944.
W. B. Harrell, Regional Litigation Atty., of Dallas, Tex., and David London, Chief Appellate Division, O.P.A., of Washington, D. C., for appellant.
Robert M. Vaughan and Jas. D. O’Con-nor, both of Dallas, Tex., for appellees.
Before SIBLEY, HUTCHESON, and McCORD, Circuit Judges.
PER CURIAM.
For the reasons given in Brown, Administrator, v. El Paso Iron & Metal Co., 5 Cir., 141 F.2d 938, this day decided, the judgment in this case is affirmed, without prejudice, however, to the right of the appellant to renew his application for injunction upon evidence that the violations complained of are continuing.
Question: Did the court's conclusion about the constitutionality of a law or administrative action favor the appellant?
A. Issue not discussed
B. The issue was discussed in the opinion and the resolution of the issue by the court favored the respondent
C. The issue was discussed in the opinion and the resolution of the issue by the court favored the appellant
D. The resolution of the issue had mixed results for the appellant and respondent
Answer:
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songer_respond1_1_3
|
E
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case.
MARINE COOKS & STEWARDS, AFL, a voluntary association, James O. Wil-loughby, Virgil Rogers and Willard Richards, Appellants, v. PANAMA STEAMSHIP COMPANY, Ltd., a corporation, et al., Appellees.
No. 15637.
United States Court of Appeals Ninth Circuit.
April 6, 1959.
J. Duane Vance, Seattle, Wash., for appellants.
Summers, Bucey & Howard, Charles B. Howard, Seattle, Wash., John D. Mosser, Portland, Ore., for appellee.
Before POPE, HEALY and ORR, Circuit Judges.
ORR, Circuit Judge.
Upon the complaint of appellees the trial court issued an order enjoining appellants from conducting certain alleged picketing activities. On the appeal lodged in this court we have had two hearings.
At the first hearing appellants rested their contentions on lack of jurisdiction of the trial court to issue the temporary injunction because of the prohibition contained in the Norris-LaGuardia Act, 47 Stat. 70 (1932), 29 U.S.C.A. § 101 et seq. (1956).
On the second hearing their contention was broadened to include an assertion of a lack of statutory basis for the district court to consider this action at all on the civil side either as to the injunction or the claim for damages, which latter claim is still pending below.
The essential facts follow.
The S. S. Nikolos, a vessel registered under the Liberian flag and owned by ap-pellee Panama Steamship Company Ltd., a foreign corporation, arrived in Tacoma Harbor in the State of Washington during the early morning hours of June 10, 1957. Its master, oificers and crew were aliens. The time-charterer, appellee Sea-tankers, Inc., is not a citizen of the United States.
The ship was carrying a cargo of bulk salt loaded at a port on the West Coast of Mexico. The consignee was the Hooker Electro-Chemical Co. to whom the cargo was to be delivered at a berth in Tacoma Harbor. The ship was cleared and passed by the Immigration, Quarantine and Custom authorities and was therefore lawfully entitled to discharge its cargo.
While at anchorage awaiting the assignment of a berth, the ship was approached by a small vessel, the “Will-O-Bee”, displaying a “Picket Boat” sign and then and there operated by appellants Willoughby, Rogers, and Richards, members of appellant Marine Cooks & Stewards AFL, Willoughby being the duly authorized Port Agent. Willoughby boarded the Nikolos and notified the master that the ship was being picketed by his association.
The “Will-O-Bee” continued to circle around the Nikolos displaying its picket signs. In addition, Willoughby threatened the Hooker Electro-Chemical Co. with the establishment of a picket line at its dock if the Nikolos was allowed to berth.
In awarding a temporary injunction pending a final determination as to damages and the issuance of a permanent injunction, the trial court made findings to the effect that the picketing conduct of appellants was an unlawful interference with international commerce and particularly with the right of appellees to carry out an international voyage and maritime contract of affreightment, utilizing a vessel lawfully registered with a friendly foreign nation and manned by an alien crew under foreign shipping articles. Further findings are that appellees have also entered into and are seeking other like contracts; that by reason of the picketing the Nikolos has acquired the reputation of a “hot ship” and that ap-pellees’ reputation for carrying out their contractual obligations have become impaired.
The trial court further found that the United States as a nation has international obligations with respect to commerce and with respect to the relations of this country with friendly maritime nations and that the acts of the appellants might impair such obligations and cause irreparable damage to such relations. It found that the appellees had no adequate remedy at law and that the public officers charged with a duty to protect appellee’s property were unable to furnish adequate protection as shown by lack of evidence of any action by such authorities and the fact that no public official was charged with such responsibility.
The trial court also found that there had been no fraud; no physical violence to persons or injury to tangible property or threats of such by appellants.
It seems to be an accepted fact that there was no dispute between the members of the crew or any of them and the master or owners. The picketing was purely a matter of protest by the appellants of the alleged threat to American working standards created by the foreign crews who work under substantially less favorable circumstances than crews on American ships.
In now turning to a consideration of the questioned jurisdiction of the trial court to entertain the action, we keep in mind that the jurisdiction of a federal district court rests upon statutory grant, Sheldon v. Sill, 1850, 8 How. 441, 49 U.S. 441, 12 L.Ed. 1147, and he who invokes that jurisdiction has the burden of establishing it. McNutt v. General Motors Acceptance Corp., 1936, 298 U.S. 178, 56 S.Ct. 780, 80 L.Ed. 1135.
Appellees upon whom rests that burden specifically disclaim diversity of citizenship as creating the statutory basis. See 28 U.S.C.A. § 1332.
Appellee has also refrained from invoking jurisdiction on the admiralty side under 28 U.S.C.A. § 1333. This position may have been dictated by the unavailability of a jury trial on the damage issue in admiralty and because of appellee’s belief that admiralty cannot afford injunctive relief.
Appellee rests his claim of jurisdiction on 28 U.S.C.A. § 1331 creating general federal question jurisdiction in the district court. Section 1331 provides that “the district courts shall have original jurisdiction of all civil actions wherein the matter in controversy * * * arises under the Constitution, laws, or treaties of the United States.” (It is clear and conceded that the amount in controversy required by the statute in force at the time of the institution of suit was met.)
In sustaining jurisdiction under § 1331 the first hurdle is the requirement that the substantive law creating the cause of action be federal or that some element of federal law must be established as part of the cause of action. Smith v. Kansas City Title & Trust Co., 1921, 255 U.S. 180, 41 S.Ct. 243, 65 L.Ed. 577. That hurdle is cleared here because appellee’s cause of action is based on interference with maritime traffic on navigable waters and on interference with the performance of a maritime contract constituting maritime torts. The sub-stantive law of such torts is basically federal. See Pope & Talbot v. Hawn, 1953, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143; Gilmore & Black, op. cit. supra note 2 and 2, 45 and cases cited therein. See also Romero v. International Terminal Operating Co., 79 S.Ct. 468, 483 (“the federal nature of the maritime law administered in the federal courts has long been an accepted part of admiralty jurisprudence”).
Having determined that the cause of action in the instant case depends upon federal law, the next problem is whether it arises under the “Constitution, laws, or treaties of the United States” within the meaning of § 1331.
Most forceably argued pro and con has been the line of controversy typified by Doucette v. Vincent, 1952, 194 F.2d 834 in the first circuit, Paduano v. Yamashita, 1955, Kisen Kabushiki Kaisha, 221 F.2d 615 in the 2nd circuit; Jordine v. Walling, 1950, 185 F.2d 662 in the 3rd Circuit and Jenkins v. Roderick, 1957, 156 F.Supp. 299 in the Massachusetts District Court. All of those cases involved the question of whether certain seamen or longshoremen suing for personal injuries could get a jury trial by proceeding on the law side of the federal court under § 1331. The theory in favor of such jurisdiction was that although the claims were cognizable in admiralty under 28 U.S.C.A. § 1333 the savings clause of that section, in bold face type in note 4, allowed them to proceed in any court competent to give an in personam remedy of damages and § 1331 created such competence in the law side of the federal district court.
The existing difference of opinion has been resolved by the U. S. Supreme Court in the recent Romero case, supra [79 S.Ct. 475], wherein it was held that “saving clause” actions are not within the grant of § 1331. In that opinion it is stated that “from 1875 to 1950 there is not to be found a hint or suggestion to cast doubt on the conviction that the language of that statute (§ 1331) was taken straight from Art. Ill, § 2, cl. 1 (of the Constitution), extending the judicial power of the United States ‘to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority.’ Indeed what little legislative history there is * * * indicates that this was the source. Thus the Act of 1875 (creating the predecessor of § 1331) drew on the scope of this provision of clause 1, just as the Judiciary Act of 1789 (creating the admiralty jurisdiction) reflected the constitutional authorization of clause 1 of section 2 (sic), which extended the judicial power to all Cases of admiralty and maritime Jurisdiction.” “ * * * The grant of jurisdiction over ‘suits of a civil nature at common law or in equity * * * ’ as derived from Article III, could not reasonably be thought of as comprehending an entirely separate and distinct class of cases — ‘Cases of admiralty and maritime Jurisdiction’.”
The Supreme Court thus held that Congress in utilizing the language of the Constitution in its statutory grants of jurisdiction intended to separate admiralty and maritime on the one hand from law and equity on the other. Therefore appellee’s argument that jurisdiction can be found under § 1331 because it is a savings clause action would be of no avail. But we are convinced that this is not a saving clause action. This is an action for an injunction, and admiralty at no time has had jurisdiction of such actions. We emphasize, this is not an action “saved” from the exclusive jurisdiction of admiralty; it is one never cognizable in admiralty. In terms of the Supreme Court distinction made in Romero, it is not a “case of admiralty and maritime jurisdiction” but a suit “of a civil nature * * * in equity” arising because of a breach of a federal duty. It can not be said of this action as it is of “having clause” actions, that Congress did not intend to give a double jurisdiction as there is no jurisdiction under § 1333.
In order to understand the absence of a sufficiently broad equitable jurisdiction in admiralty to grant an injunction it is helpful to briefly trace the history of that court and body of law. Its early development is not entirely clear, but it apparently developed much as the law merchant during the renaissance period of world commerce. Continental scholars then busy adapting the Roman (Civil) Law were attracted by this developing customary law and admiralty still bears their imprint.
The English port towns as well as the continental ones had “maritime courts” that adjudicated according to the customary sea law. The English development was affected by the creation of the office of the Lord High Admiral who originally was a naval officer concerned mostly with suppression of piracy. It is not clear just how and when he achieved jurisdiction over civil maritime matters, but by around 1400 that jurisdiction was so broad that Parliament moved to limit it by statute to “a thing done upon the sea”. 13 Rich. II, c. 5 (1389) and 15 Rich. II, c. 3 (1391). It still maintained a substantial jurisdiction as a court of record, however, until eventually it became involved in the great struggles for power among the various English courts. It then suffered severe narrowing of its jurisdiction because of the jealousy of the common law courts which issued writs of prohibition preventing it from entertaining actions of various kinds. For example, contract actions to be cognizable in admiralty not only had to concern the sea, but had to have been made at sea.
Apparently English lawyers at the time of the adoption of the American Constitution acted on the broad rule that “nothing was to be left to the Admiralty of which the common law could conveniently take cognizance * * * ” — a sort of reverse savings clause. Anything for which a writ could be gotten from a common law court would not be allowed in admiralty; only what was not available elsewhere could admiralty take.
Early in American judicial history the problem of the breadth of admiralty jurisdiction arose. As reference points there was the English jurisdiction already described; the English Colonial Admiralty courts which had much broader jurisdiction since it was convenient for Britain to have a non-jury court of broad power in the colonies; and the broad jurisdiction of the continental admiralty courts which was similar in extent to the English prior to curtailment.
Earlier American cases frequently assumed a narrow jurisdiction, but in Waring v. Clarke, 1847, 5 How. 441, 46 U.S. 441, 12 L.Ed. 226 the broad continental concept was accepted. As later stated in Insurance Company v. Dunham, 1870, 11 Wall. 1, 78 U.S. 1, 24, 20 L.Ed. 90, “the admiralty and maritime jurisdiction of the United States is not limited either by the restraining statutes or the judicial prohibitions of England, but is to be interpreted by a more enlarged view of its essential nature and objects, and with reference to analogous jurisdictions in other countries constituting the maritime commercial world * * *.”
But when it came to equitable jurisdiction there was no such parallel enlightenment. The relations between the admiralty and the Chancellor in England had escaped the attention which had been paid to the famed struggle between the former and the courts of common law. Apparently in the beginning there was a concurrent jurisdiction of sorts with a right asserted by the English Chancellor to take causes out of admiralty, the Chancellor being in a stronger position than even the common law courts with his injunctive powers. In in rem proceedings the Chancellor would not ordinarily invoke its concurrent jurisdiction unless the title came into dispute, but in “all proceedings in personam and in instances where any characteristically equitable relief was called for, the Chancellor always exercised the same full jurisdiction in maritime cases that he did in non-maritime cases. And the question of concurrent jurisdiction was eliminated by the exclusion of the court of admiralty from the field. The result was that such forms of relief as an accounting, specific performance, injunction, reformation or cancellation of contracts and relief against fraud generally, were available exclusively in Chancery.” Morrison, supra at 11.
Notwithstanding the departure made by American courts from the narrow English restrictions imposed by the common law writs of prohibition, when determination of equitable rights and remedies were under consideration the English practice was followed. Thus it was held that equitable interests in a vessel must be left to ordinary land courts of equitable jurisdiction. See e. g. The Eclipse, 1890, 135 U.S. 599, 10 S.Ct. 873, 34 L.Ed. 269. Affirmative equitable relief has been consistently denied in admiralty under the prevailing view that admiralty does not possess the distinctive equity powers. See e. g. Davis v. Child, D.C.Me.1840, Fed.Case No. 3,628; The Eclipse, supra; The Robert R. Kirkland, D.C.N.J.1899, 92 P. 407. It has been specifically held that admiralty can not give injunctive relief. Schoenamsgruber v. Hamburg American Line, 1935, 294 U.S. 454, 55 S.Ct. 475, 79 L.Ed. 989; Sound Marine & Machine Corporation v. Westchester County, 2 Cir., 1938, 100 F.2d 360, certiorari denied 1939, 306 U.S. 642, 59 S.Ct. 582, 83 L.Ed. 1042; Paterson v. Dakin, D.C.S.D.Ala.1887, 31 F. 682.
Thus this action or bill for an injunction to restrain a breach of a federal duty is an action that has arisen under the “law and equity” jurisdiction of § 1331; the remedy sought has at no time been within the “admiralty and maritime” jurisdiction of § 1333.
Having jurisdiction of the action for the injunction, the district court as a court of equity may within its discretion exercise the traditional power of equity to “clean-up” the controversy by awarding damages incident to its equitable jurisdiction. Of course there would be no right to a jury trial.
The remaining question raised by appellant is that the trial court was without jurisdiction to issue the temporary injunction because of the prohibition contained in the Norris-LaGuardia Act, 47 Stat. 70 (1932), 29 U.S.C.A. § 101 et seq. (1956). It is our conclusion that the Norris-LaGuardia Act does not apply. This view is based upon the holding of the Supreme Court in Benz v. Compania Naviera Hildalgo, S.A., 1957, 353 U.S. 138, 77 S.Ct. 699, 1 L.Ed.2d 709.
The question before the Supreme Court in Benz was whether the Labor Management Relations Act of 1947, 61 Stat. 136, 29 U.S.C.A. § 141, so preempted the field of labor relations so as to deprive a state court of jurisdiction in a damage suit for wrongful picketing by an American union of a foreign vessel. The court held that there was no preemption because the Labor Management Act does not apply to labor disputes arising solely out of conditions on a foreign vessel even though an American Union was the party defendant. There, as here, the argument was made by the union that the standard of work and pay on the foreign vessel was a threat to the welfare of the American union members, yet the Supreme Court held the Act inapplicable. We find no such greater interest residing with the American union concerned in the instant case which would justify a differentiation of one from the other on that ground.
No legislative history has been brought forth to indicate that the Norris-LaGuar-dia Act should apply here, and as the Supreme Court said of the Taft-Hartley Act in Benz, and we think equally applicable to the Act now under consideration, “the whole background of the Act is concerned with industrial strife between American employers and employees.” 353 U.S. at page 143, 77 S.Ct. at page 702.
Appellant urges that the Taft-Hartley Act is a regulatory and substantive act whereas the Norris-LaGuardia Act is solely jurisdictional and thus it would be reasonable to deny the application of the former and still apply the latter. The answer is found in Benz where not only the application of the regulatory aspects of the Taft-Hartley Act, but also the whole complaint procedure and jurisdiction which could have provided protection for the foreign vessel against an unfair labor practice was denied.
If the Norris-LaGuardia Act was applicable here, the combination of such a holding and the holding in Benz that the Taft-Hartley Act administrative remedies are not available would result in there being no federal agency or court in which foreign commerce could seek protection. Such a result in the field of international commerce and relations should not be arrived at without more explicit direction from Congress.
Affirmed.
. Apparently appellee rejects the diversity theory because some of the appellants are associations whose citizenships are determined by that of their members [see e. g. Chapman v. Barney, 1889, 129 U.S. 677, 9 S.Ct. 426, 32 L.Ed. 800 (joint stock co.); Levering & Garrigues Co. v. Morrin, 2 Cir., 1982, 61 F.2d 115 (labor union)] and some of the members are aliens as are all of appellees. Under prior forms of § 1332 it has been held there is no jurisdiction under such circumstances. Ex Parte Edelstein, 2 Cir., 1929, 30 F.2d 636.
In view of the result we reach, it is unnecessary to consider the difficult statutory and constitutional questions that would have been involved had appellee urged this as a ground for jurisdiction.
. It has been held that the admiralty court does not possess the distinctive remedial powers of equity. See The Eclipse, 1890, 135 U.S. 599, 10 S.Ct. 873, 34 L.Ed. 269; Gilmore & Black, The Law of Admiralty 37-39 (1957). In particular it has been held that admiralty has no power to issue an injunction. Sound Marine & Machine Corporation v. Westchester County, 2 Cir., 1938, 100 F.2d 360, certiorari denied 1939, 306 U.S. 642, 59 S.Ct. 582, 83 L.Ed. 1042.
. See e. g. The Plymouth, 1886, 3 Wall. 20, 70 U.S. 20, 36 wherein the Supreme Court stated that “every species of tort, however occurring * * * if upon the high seas or navigable waters, is of admiralty cognizance”; See also Sidney Blumenthal & Co. v. United States, 2 Cir., 1927, 30 F.2d 247, certiorari denied Admiral-Oriental Line v. United States, 279 U.S. 847, 49 S.Ct. 345, 73 L.Ed. 991.
. “The district courts shall have original jurisdiction, exclusive of the courts of the States of * * * any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise enti-tied.’’ (Emphasis added.)
. The history here set out is mostly derived from Gilmore & Black, The Law of Admiralty (1957) and from Morrison, The Remedial Powers of Admiralty, 43 Yale Law Rev. 1 (1933).
. The common law judges were also fearful of the power of admiralty that sat without a jury. It is noteworthy that at an earlier time admiralty apparently did have jury trials at least in some actions. See Mathiasen, Some Problems of Admiralty Jurisdiction in the 17th Century, 2 Amer.J. of Legal History 215 (1958).
. Roscoe, Admiralty Practice (5th ed. 1931) at 8-9.
. The English admiralty jurisdiction was vastly enlarged in the nineteenth century, 3 & 4 Vict., c. 65 (1840), 13 & 14 Vict, c. 26 (1850), 24 Vict. c. 10 (1865). It is now a part of the High Court of Justice in a single division with probate and divorce.
. There is a line of cases upholding the power of admiralty to assert equitable principles in actions otherwise within its province. “A court of admiralty is, as to all matters falling within its jurisdiction, a court of equity, * * * it administers justice upon the large and liberal principles of courts which exercise a general equity jurisdiction.” The David Pratt, D.C.Me.1839, Fed.Cas. 22, at page 24, No. 3,597. But when the question of remedies is reached the courts have resorted to the distinction between law and equity and have held that admiralty lacks the power to give equitable remedies. One commentator sees: “ground for hope that a doctrinal trend is in the making that would render the ordinary equitable remedies . . . available to the admiralty court . . . ” Gilmore & Black, op. cit. supra note 2 at 39, based on the case of Swift & Co. Packers v. Compania Colombiana Del Caribe, S.A., 1950, 339 U.S. 684, 70 S.Ct. 861, 865, 94 L.Ed. 1206 which held that admiralty could employ equitable powers when dealing with a case otherwise maritime in character. But that ease cited The Eclipse, supra, as still being good law, stating: “Unquestionably a court of admiralty will not enforce an independent equitable claim merely because it pertains to maritime property.”
It should be noted that admiralty by statute has been given injunctive power in certain limited areas not here applicable.
. It was not until 1875 that Congress passed the predecessor of § 1331 first creating, except for a brief interval (Act of Feb. 13, 1801, § 11, 2 Stat. 89, 92 repealed by Act of Mar. 8, 1902, 2 Stat. 132), the general federal question jurisdiction as we know it now. The legislative history of its passage leaves much to be desired in revealing any “intent” of the Congress. “In its original form the Act applied only to controversies involving diversity of citizenship and not to substantive federal rights.” Frankfurter & Landis, The Business of the Supreme Court 66 (1927). The first section was designed to change certain features of the removal jurisdiction in diversity eases originally begun in a state court, and it created much controversy and dissent. Eventually the first section was struck out and the bill left the House containing only amendments to the procedure governing removal proceedings. In the Senate a substitute bill containing the eventual form of the Act was introduced and it passed the Senate the day of its introduction with only details arousing any discussion, and it was passed in the House in its same form. It is questionable whether the Congress had any consciousness of the enormity of the change in the judicial structure thus brought about. “Although this legislation in a very real sense revolutionized the concept of the federal judiciary, it passed almost unnoticed inside or outside the halls of Congress.” Hart & Wechsler, The Federal Courts & The Federal System 729 (1953). See also Frankfurter & Landis, supra at 64-68.
“These courts (federal) ceased to be restricted tribunals of fair dealing between citizens of different states and became the primary and powerful reliances for vindicating every right given by the Constitution, the laws, and treaties of the United States.” Frankfurter & Landis, supra at 65.
Considering the times of the enactment and the language of the statute it would seem that the purpose of such an Act would be to provide a federal forum that would be sympathetic to and would become expert in the development of substantive federal law. To find that Congress had carved out an exception from so broad a statute would require some certain evidence. The Supreme Court found such evidence in Romero in the use of the Constitutional language by Congress in drawing the statutes creating separate jurisdictions for “law and equity” and for “maritime and admiralty”. This case as we have indicated falls outside the latter and within the former. Thus we find no evidence that this action based on substantive federal law toas meant to be excluded from the grant contained in § 1331.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case?
A. agriculture
B. mining
C. construction
D. manufacturing
E. transportation
F. trade
G. financial institution
H. utilities
I. other
J. unclear
Answer:
|
songer_state
|
54
|
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".
GEOPHYSICAL DEVELOPMENT CORPORATION et al. v. COE, Commissioner of Patents.
No. 8209.
United States Court of Appeals for the District of Columbia.
Argued May 5, 1943.
Decided June 7, 1943.
Mr. Lawrence Koenigsberger, of Washington, D. C., with whom Mr. Sol. Shappirio, of Washington, D. C., was on the brief, for appellants.
Mr. E. L. Reynolds, U. S. Patent Office, of Washington, D. C, with whom Mr. W. W. Cochran, Solicitor, U. S. Patent Office, of Washington, D. C., was on the brief, for appellee.
Before GRONER, Chief Justice, and EDGERTON and- ARNOLD, Associate Justices.
PER CURIAM.
The controversy here arises out of an interference proceeding in the Patent Office, instituted under the provisions of R.S. § 4904, to determine priority of invention between parties claiming substantially the same invention. Appellants applied for a patent on a device for measuring radio activity. An interference was declared with the then pending application of one Neufeld, to which was subsequently added the later application of one Howell. The Office sustained in part a motion to dissolve as to Howell. Before any further steps were taken one Bender filed an application for a reissue of a previous patent to include the same claims. The Office then included Bender in the interference. Thereupon appellants moved to dissolve as to Bender on the ground that his original failure to obtain claims corresponding with the interference counts was not the result of his inadvertence, accident, or mistake, but of his deliberate cancellation of all claims except those then patented to him. This, appellants say, barred Bender’s right to renew the claims in a subsequent application. The Commissioner ordered that the motion be considered on the record in the Patent Office, but denied appellants’ request to file interrogatories and take evidence in support of their contentions. To test this ruling appellants brought this suit in the District Court for an injunction to require the Commissioner to amend his decision so as to permit the filing of interrogatories and the taking of testimony. The Commissioner successfully moved to dismiss and this appeal followed.
The Commissioner insists, in support of his ruling, that the question of Bender’s good faith is secondary to the determination of priority of invention, that proof of priority is essential to the granting of a patent, and that appellants were placed in interference for this sole purpose. Consequently, the Commissioner says, it is of no concern to appellants whether Bender in his original application deliberately cancelled his claims and thereby forfeited his rights, for that is a question the Office will deal with in its own good time, and the decision of which will neither help nor hurt appellants. For even if Bender is not entitled to make the claims, appellants are not entitled to a patent unless they establish priority.
Precisely this was decided by the Court of Customs and Patent Appeals in Ellis v. Maddox, 96 F.2d 308, 25 C.C.P.A., Patents, 1045. There it was held that the Examiner properly refused to consider, on the motion of the junior party to an interference, whether the senior party, an applicant for a reissue patent, was estopped by his conceded abandonment of claims in his prior application. The ground of the decision was that the question was not one of priority, or one ancillary thereto, and hence not determinative of the rights of the junior party to the proceeding. Such questions, it is frequently said, are the concern alone of the public, to be considered ex parte by the Patent Office. Te Pas v. Geldhof, 112 F.2d 800, 27 C.C.P.A., Patents, 1265. We have similarly ruled in analogous cases. Earles v. Gomber, 50 App.D.C. 389, 273 F. 353; Frost v. Chase, 37 App.D.C. 179; and Norling v. Hayes, 37 App.D.C. 169.
In the light of these cases it must be considered that the Commissioner had full power to provide or not, and in such manner as he saw fit, for the settlement of such independent matters in interference proceedings. And this we recognized in Allen v. United States ex rel. Lowry, 26 App.D.C. 8, 17, where we said: “We cannot emphasize too strongly that, in our opinion, the statutes relating to interferences only provide that they shall be instituted for the sole purpose of determining priority of invention * * *. The Commissioner of Patents, under the authority given to regulate the proceedings in the Patent Office, is clothed with power to regulate all interlocutory proceedings in interference cases by rules not inconsistent with law.”
The present regulation is not inconsistent with law, for admittedly there is no statute governing the Commissioner’s discretion, nor, in the circumstances here, is it either unreasonable or arbitrary. Hearings confined to record facts are common in all judicial and quasi-judicial proceedings. From many points of view public interest might well be served if the Patent Office admitted testimony as to the invalidity of a patent application or the bad faith of the applicant in an interference proceeding, in order to conclude all controversial questions at one time. But where, as here, the issue is not one which appellants may raise of right, the question is for the Patent Office rather than the Court. The Commissioner says that motions such as this, when based on affidavits or testimony, are consistently refused consideration. Appellants dispute this, but in all of the cases from the Patent Office which they cite the motions were on grounds generally held to be ancillary to the question of priority.
Certainly it is true that appellants, in order to establish their application, have the duty of showing both patentability and priority. And the order or method of doing this is clearly within the rule making powers of the Commissioner. Rule 95, Rules of Practice of United States Patent Office, 35 U.S.C.A.Appendix, provides that before an interference is declared it must be determined by the Patent Office that there is common patentable subject matter in the cases of the respective parties. Once the interference is declared there is left for detex-mination therein only the question of priority.
The action of the Commissioner, therefore, in following the long established practice and. refusing to examine this question except on the records in his own office was, we think, neither arbitrary nor unreasonable, and we are required to affirm the judgment.
Affirmed.
35 U.S.C.A. § 52. “Interferences; determination of priority; issue of patent.
“Whenever an application is made for a patent which, in the opinion of the Commissioner, would interfere with any pending application, or with any unexpired patent, he shall give notice thereof to the applicants, or applicant and patentee, as the case may be, and shall direct a board of three examiners of interferences to proceed to determine the question of priority of invention. And the Commissioner may issue a patent to the party who is adjudged the prior inventor.”
Code Fed. Reg., Title 37, Sec. 1.95: “Before the declaration of interference it must be determined that there is common patentable subject matter in the eases of the respective parties. The issue must be clearly defined and be patentable to the respective parties, subject to the determination of the question of priority.”
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_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 of America, Appellee, v. Joseph BROWN, Appellant.
No. 8418.
United States Court of Appeals Fourth Circuit.
Argued Nov. 8, 1961.
Decided Nov. 21, 1961.
John H. Wrighten, Charleston, S. C. (Benjamin L. Cook, Jr., Charleston, S. C., on brief), for appellant.
Terrell L. Glenn, U. S. Atty., Columbia, S. C. (Thomas P. Simpson, Asst. U. S. Atty., Columbia, S. C., on brief), for appellee.
Before SOPER, BRYAN and BELL, Circuit Judges.
PER CURIAM.
Convicted by a jury in the District Court of receiving and having in his possession 12 eases of beer with knowledge that they had been stolen, 18 U.S.C.A. § 659, Joseph EL Brown appeals. They were found in his apartment in Charleston, South Carolina at about 2 o’clock on the morning of July 6, 1960. That the beer had been a part of an interstate shipment from Tampa, Florida to Charleston and had been stolen therefrom during the night of July 5 or early morning of July 6, 1960 is not here questioned.
In essence Brown made two points before the trial court, whose adverse rulings thereon he now assigns as error. The testimony as to his possession of the beer, he first avers, should have been suppressed because its discovery in his apartment was the result of an illegal search and seizure. He next contends the evidence at trial was not sufficient to prove that while the beer was in his possession he knew it had been stolen. In denying the defendant’s motions, predicated on these assertions, to suppress and to grant a judgment of acquittal, the District Judge was plainly correct.
The fatal infirmity of these assignments of error appears at once upon a review of the evidence. Early in the morning of July 6, 1960, Sergeant Whitely of the Charleston police while cruising in his patrol car observed a man walking away from a Plymouth automobile parked on the west side of St. Phillip Street, near the corner of Line Street. This location is just opposite the common entrance at 259 St. Phillip to Brown’s second floor apartment and the Belvedere Night Club, which was then operated by Brown on the first floor. The sergeant continued on his rounds, but on returning to the vicinity a few minutes later he saw Brown, an acquaintance, leaving the club. Brown came over to the police car then stopped for the traffic light, and talked briefly with the sergeant.
When' some twenty minutes later the sergeant’s beat again brought him to the intersection of St. Phillip and Line Streets, he noted on the corner the same man who had earlier walked away from the Plymouth. Further on his tour he saw Brown a city block and a half away, standing in a store doorway. Quite soon afterwards the sergeant was radioed from police headquarters to go to Line and St. Phillip Streets to investigate the unloading of an automobile then in progress. Immediately he drove north along St. Phillip Street. A block distant from Line, he saw a man run from the west to the east side of St. Phillip and into an alley near the corner. Parking his car on the east side of St. Phillip, the sergeant noted two men leave the door of Brown’s apartment and walk to the corner of Line and St. Phillip. Thereupon he crossed over to the Plymouth automobile which had been seen there before, On the rear seat were several cases of beer. Upon the arrival of another police cruiser, the two men on the corner, later identified as Allen Waring and Richard Parsons, were arrested,
when this cruiser left with the two men, Brown asked the sergeant what was the “trouble”, to which the officer rejoined, “Joe, you know”, adding, “I would like to take a look in your place.” Brown replied, “All right, sir, but before you go in there, I am going to tell you right now, you are going to find 10 cases of that beer in my place.” Together they went into the Belvedere Club. Finding nothing there, Whitely asked where was the beer. “Upstairs”, Brown responded, The two then entered Brown’s apartment, A dozen cases of beer were in the hallway; they were of the same brand as that in the Plymouth. “Well, Joe, you know what this is going to mean,” the officer admonished, and Brown conceded, “Yes, sir, I know.” Whitely continued, “I am going to have to take you and the beer to headquarters”. Brown answered, “Yes, sir, I know that”. This beer was then put in the Plymouth automobile with the first 20 cases. Brown and the beer were carried to the police station.^ WarParsons and Brown were detained by the cl1Y P°lice for about 72 hours but tben leased.
Upon ascertaining that the beer in Brown’s apartment and that first seen in the Plymouth automobile together were a part of the interstate shipment heretofore described, a Special Agent of the Federal Bureau of Investigation questioned Brown, Parsons and Waring while they were in police custody. Brown denied any knowledge of how the beer got into his apartment. On August 1, 1960 all three were arrested on a Federal warrant, and ultimately they were indicted under 18 U.S.C. § 659. The first count of the indictment charged Parsons and Waring with the theft of 20 cases of beer; the second count accused Brown of criminally receiving and possessing 12 cases; and a third count laid to Waring a like receipt and possession of 20 cases, Brown and Parsons were tried together and found guilty. Brown’s conviction alone is before us.
Obviously, Brown was not aggrieved by the search and seizure in his apartment. In effect he invited the policeman to look in his club and in his apartment. No intimidation or unfair inducement is even hinted as responsible for Brown’s ready consent to the search. The object of Whitely’s quest was, of course, known to Brown. Moreover, the officer had justification for his belief that the beer in the hallway bore the taint of current larceny. What he had observed on his earlier surveillance, especially after the radio alert, gave him fair cause to regard the beer in the Plymouth as purloined goods. Referring to this beer, Brown had told the officer he would find on his premises cases of “that beer”. Hence, he was by duty bound to seize it. He had reasonable grounds to arrest Brown, moreover, for Brown did not explain his possession of the questionable cases.
In these circumstances no valid objection could be made to the proof at trial of the beer’s discovery. Only when the procurement of the evidence is effected through unlawful means is its admission barred. Brown’s consent dispelled all uncertainty on this head. Grice v. U. S., 146 F.2d 849 (4 Cir. 1945); U. S. v. Bianco, 96 F.2d 97 (2 Cir. 1938).
This chronicle of the evidence confirms the rectitude of the jury’s condemnation of Brown. Despite his compromising possession of patently thieved wares, he did not venture to meet its incrimination. Pearson v. U. S., 192 F.2d 681, 689 (6 Cir. 1951); Thomas v. U. S., 11 F.2d 27 (4 Cir. 1926). The only evidence at all approaching an explanation was the F. B. I. agent’s testimony that Parsons told him he had put two of the cases in Brown’s apartment and at a time when no one else was there, No deprivation of Constitutional rights whatsoever was suffered by Brown.
We find the appeal without merit and we affirm,
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_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.
UNITED STATES of America, Appellee, v. William FREEDMAN, Appellant.
No. 26566.
United States Court of Appeals, Ninth Circuit.
June 22, 1971.
Rehearing Denied July 15, 1971.
Burton Marks, of Marks, Sherman & London, Beverly Hills, Cal., for appellant.
James H. Bozarth, Asst. U. S. Atty. (argued), Robert L. Meyer, U. S. Atty., Alan H. Friedman, Asst. U. S. Atty., Los Angeles, Cal., Johnnie M. Walters, Asst. Atty. Gen., Washington, D. C., for appellee.
Before MERRILL, HUFSTEDLER and KILKENNY, Circuit Judges.
KILKENNY, Circuit Judge:
This is an appeal from an order of the district court denying appellant’s Rule 41(e), F.R.Crim.P., motions for the return of property wrongfully seized.
FACTS
Inasmuch as substantially all of the essential facts are stated in the opinion on the previous appeal, Freedman v. United States, 421 F.2d 1293 (9th Cir. 1970), we shall limit our statement to the bare essentials.
Following the seizure of appellant’s property in the criminal proceeding, including the $13,100.00 here in question, the Commissioner of Internal Revenue, on December 23, 1968, caused an assessment to be made against the appellant for income taxes in the sum of $13,953.-50 for the taxable year ending December 17, 1968. On the same date, the Commissioner levied on the $13,100.00 previously seized in the criminal action, by serving a “Notice of Levy” on the United States Customs Service which was in possession of the money. On January 9, 1969, the Commissioner took possession of the $13,100.00, converted it into the form of a certified check and posted a credit in that amount to the account of the taxpayer. Rule 41(e) procedures for return of the money, and other property not here in question, were instituted by appellant on April 16th and April 22nd, 1969.
In the hearing on the remand from the previous appeal, the government agreed to a return of all of the properties, with the exception of the $13,100.-00, and three other items which it considered relevant as evidence in the criminal case. The district court for the Central District of California, in the exercise of its discretion, again referred the suppression motions to the Southern District of California, holding that there was sufficient connection between the four remaining items, including the $13,100.00 and the case in the Southern District, to warrant such action. The district court for the Southern District denied taxpayer’s motions as to the items other than $13,100.00 and referred the motions on that item back to the Central District. On May 1,1970, the appellant was convicted in the Southern District of the crime of conspiracy to violate the narcotics laws, 21 U.S.C. §§ 173, 174. Appellant then renewed his motion in the Central District for the return of the $13,100.00. There, as here, the government contended that appellant’s Rule 41(e) procedures were only a camouflage, and that they, in fact, were actions for a refund of the tax assessed by the Commissioner. That being so, and since appellant did not file a claim for a refund or for a credit with the Commissioner pursuant to the provisions of 26 U.S.C. § 7422(a), the district court held that it had no power to proceed. We agree.
CONCLUSIONS
Regardless of form, an absolute prerequisite to the maintenance of such an action is the filing of a claim for refund or for a credit pursuant to § 7422(a). Thompson v. United States, 308 F.2d 628, 634 (9th Cir.1962); Owen v. United States, 277 F.2d 790 (9th Cir. 1960). The fact that the seizure of the fund may have been illegal is of no significance. Ginsberg v. United States, 408 F.2d 1016, 1017, fn. 1 (9th Cir. 1969); Simpson v. Thomas, 271 F.2d 450 (4th Cir. 1959); Field v. United States, 263 F.2d 758 (5th Cir. 1959), cert. denied 360 U.S. 918, 79 S.Ct. 1436, 3 L.Ed.2d 1534 (1959); Welsh v. United States, 95 U.S.App.D.C. 93, 220 F.2d 200 (1955). The salient facts in Field are indistinguishable from those before us. In accord, under a similar state of facts, is Carlo v. United States, 286 F.2d 841, 849 (2d Cir. 1961), cert. denied 366 U.S. 944, 81 S.Ct. 1672, 6 L.Ed.2d 855 (1961). Both Field and Carlo are cited with approval in the footnote to Ginsberg.
The lower court assumed that the original seizure was unlawful, but denied relief on the theory that the validity of the levy for income taxes had to be tested in procedures properly prosecuted under the Internal Revenue Laws. In the arguments before us, the government claimed no right to retain the money on the basis of its original seizure and conceded that appellant would be entitled to a return in appropriate proceedings, of so much of the fund as might not be subject to the tax levy. (All or any part). Accordingly, we so hold.
This holding exhausts the subject matter of the present litigation. We leave open to the appellant all issues surrounding the propriety of the tax levy with the right to pursue such other remedies as may be available to him for a determination of the validity of such levy.
Affirmed.
. Section 7422(a) of the Internal Revenue Code of 1954.
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
|
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.
UNITED STATES of America, Appellee, v. James Seth STEWART, Defendant-Appellant.
No. 719, Docket 73-1036.
United States Court of Appeals, Second Circuit.
Argued March 23, 1973.
Decided April 25, 1973.
Frederick B. Boyden, New York City, for defendant-appellant.
George E. Wilson, Asst. U. S. Atty. (Whitney North Seymour, Jr., U. S. Atty., S. D. N. Y., Richard J. Davis, Asst. U. S. Atty., New York City, of counsel), for appellee.
Before SMITH, FEINBERG and MANSFIELD, Circuit Judges.
MANSFIELD, Circuit Judge:
James Seth Stewart, Jr., appeals from a judgment of conviction for willful refusal to submit to induction in the Armed Forces, 50 U.S.C. App. § 462(a), entered after a trial in the United States District Court for the Southern District of New York before Judge Charles L. Brieant, Jr., sitting without a jury. Appellant was sentenced on December 14, 1972, as a young adult offender, 18 U.S. C. §§ 4209, 5010(d), to a term of nine months, but was released on bail pending his appeal. In this court he challenges, as he did below, the validity of the underlying induction order, which followed in due course the rejection by the Selective Service System of his claim for exemption from combatant and noncombatant training and service in the Armed Forces as a conscientious objector. See 50 U.S.C. App. § 456(j). Finding error in the administrative proceedings that culminated in denial of Stewart’s request for classification as a conscientious objector, we reverse his conviction.
The essential facts are not disputed. Appellant duly registered with Local Board No. 10 in Mount Vernon, New York, on July 28, 1966. He was thereafter classified II-S (student deferred from military service) from September 26, 1966, to August 19, 1970, as a result of his full-time undergraduate attendance at Stanford University. On February 6, 1970, he requested from the Local Board Selective Service Form 150, the application form for classification as a conscientious objector to combatant training and service (I-A-0 status) or to both combatant and noncombatant training and service (1-0 status). He thereafter received the form, filled it out, and returned it to the Board on March 26, 1970. In his application for 1-0 status, Stewart stated that he was “conscientiously opposed to participation in war in any form, . . . further opposed to participation and service in the Armed Forces . . . , but prepared to perform civilian alternative service if called.” He submitted a six-page essay in fulfillment of the requirement that he offer certain specified information to substantiate his conscientious objector claim. In it he expressed his beliefs that “God is the creator of life, and his power is Love; love transforms the mystery and contradictions in the human experience into a process of holiness”; and that “war is not fit for men.” He further stated:
“Since I will never be persuaded that the destruction of life ever enhances the quality of life, my beliefs insist that I not only never kill, but also that I never ask anyone to kill for my sake. ... I also oppose by the nature of my beliefs any decision made of who is to kill and be killed. I therefore cannot serve the war machine of my country in any way.”
The source of his beliefs he described as his faith in Christianity and his loving, Christian family background, including the influence of his father, grandfather and uncle, all of whom are ministers. However, he professed to some doubts of his own religious orthodoxy, which had in part prevented him, erroneously, from seeking conscientious objector status at an earlier date. He went on to explain in further detail why his conscientious objection had not surfaced earlier. In answer to the question of whether he had given expression to his views, he cited “many long talks about war and loyalty, peace rallies, a sit-in, and work on the Moratorium. But mainly, I have been concerned. And I also hope that refusing to go to war can be seen as a daily event in my life.”
In support of his application, friends and relatives of Stewart submitted eight letters generally noting his integrity and his sincere commitment to his religious beliefs in peace and non-violence.
On August 19, 1970, the Local Board granted appellant a 10-minute discretionary pre-classification interview, at the beginning of which he submitted an additional typewritten statement reiterating that “God is the creator of life, and his power is love” and that “my beliefs insist that killing and war is wrong, and that I not do it.” The Local Board denied his request for 1-0 classification and reclassified him from II-S to I-A (available for induction) by a unanimous 3-0 vote. In its summary the Board explained its action by concluding :
“Registrant is not a genuine conscientious objector based on the norms set forth in LBM #107 in that registrant’s objection is not to all war but to the present specific war.”
The Executive Secretary of the Local Board summarized in longhand the oral information given by appellant, noting on the summary sheet, among other things, that “Registrant said he could understand World War 2 but this war (Vietnam) he cannot serve.”
At the bottom of the summary of oral information provided by the registrant the following appeared:
“Board’s Note: Registrant stated that he would have served in a war like World War 2, but under no circumstances would he be involved or serve in the present type of war.”
On August 27, 1970, the day after appellant was notified of the denial of his claim, he reviewed his file. In a letter delivered to the Board on September 10, he appealed the I-A classification, denied having said that he “would have fought in World War II,” and requested a personal appearance to discuss the reason for the denial of his application for I — 0 status. On November 18, 1970, appellant appeared as a matter of right before the Board, again seeking a 1-0 classification. He submitted a statement explaining his beliefs and describing the misunderstanding about what he had said at the August 19th interview in the following manner:
“I was asked, ‘How do you think W.W. II compares to the present war?’ I responded that I could understand how a man of conscience could have fought in that war, but that I couldn’t understand how someone could in the present war.
“I said that because I know men in my family of great morality who felt at the time that it was their duty to fight, and from my understanding of those times I can sympathize with the dilemma they responded to.
“However, their times and experiences are not mine. I was raised with a different perspective on war.
“There is no contradiction in my mind: to understand the dilemma under which someone once acted with concience [sic] does not obligate one to commit himself to that action, or in any way invalidate the sincerity of one’s intention.”
The Board's summary of the November 18 appearance reflected appellant’s denial that he had ever said he would have fought in World War II, his version of what he had said, and the following:
“The board asked registrant is he a man of conscience. Registrant answered he is. Registrant said that he cannot throw himself back in World War #2, he is against all wars. . Registrant said he could not understand why the board felt that he is not sincere. He is prepared to do alternate service.”
The Board did not indicate wnether or concience [sic] does not obligate one how it reconciled the factual inconsistency between Stewart’s version and its Executive Secretary’s summary version of the August 19 interview. Instead, the Board members again unanimously denied appellant a 1-0 classification with the bare conclusion that “the Local Board is not convinced of the sincerity of registrant’s claim as a conscientious objector.” As Judge Brieant noted in his opinion “[t]he Local Board indicated no specific fact or reason which led to its conclusion that defendant was insincere. . . .”
Stewart appealed his I-A classification on January 4, 1971. He also wrote letters to the Local Board on January 4, 6, and 14 attempting to clear up the apparent misunderstanding and convince the members of his sincerity, but the clerk did not bring any of these letters to their attention and no action was taken on them. On February 18, the Appeal Board unanimously sustained the Local Board’s classification of appellant as I-A, without stating any reasons for its decision, during a one-hour meeting in which the classifications of 102 registrants were reviewed and determined. Of these, 89 classifications were sustained and 13 were reversed, though none of the 6 conscientious objector appeals was granted. The Appeal Board members did not have the registrants’ files before them until the meeting, and there was uncontradicted testimony that they sometimes did, and sometimes did not, review the files but that in the former case they did not make any notation of files reviewed. They did receive summaries of the files about two weeks in advance of the meeting, but these were customarily discarded later and appellant’s was never found.
On November 10, 1971, appellant refused to submit to induction. His indictment and conviction followed. Judge Brieant held that there was a “basis in fact,” Estep v. United States, 327 U.S. 114, 122, 66 S.Ct. 423, 90 L.Ed. 567 (1946), for the I-A classification given appellant by the Local Board after his November 18 appearance. He further concluded that the. failure of the Board members to give reasons for their conclusion that Stewart had not convinced them of the sincerity of his claim as a conscienious objector did not invalidate the I-A classification he was given, since Judge Brieant was able to infer the existence of legally sufficient reasons which appeared to have a factual basis in the record. He explained:
“A reasonable interpretation of the material set forth in his Form 150, taken together with the results of his prior appearance before the same Board, compared with the circumstances of his second appearance, are sufficient to lead a reasonable man to the conclusion that defendant’s response was something which had occurred because of the lack of justice in the Viet Nam War, and was not a conscientious objection to all wars. If the Board believed, as I find that it did, based on its colloquy and summaries, and a fair reading of Form 150, that defendant, if the Hitler holocaust were revisited on us today, would have done just as his father and uncles did, then it was justified in finding him insincere in his claim to conscientious objection. ■
■>:• *
“The local board was justified in concluding that defendant adjusted his viewpoint about World War II slightly, claiming that with today’s beliefs he would not have fought in yesterday’s war, and doing so was a recent contrivance, solely for the purpose of gaining a valid basis for 1-0 classification.”
It is settled that conscientious objector status may be denied to a registrant found to oppose only a particular war as “unjust” rather than all “war in any form.” Gillette v. United States, 401 U.S. 437, 447, 91 S.Ct. 828, 28 L.Ed.2d 168 (1971). However, before determining whether that principle applies here, we are confronted with a preliminary, but nevertheless crucial, question. Despite the district court’s interpretation of the material before it, it is undisputed that nothing Stewart had said or done was in fact suggested by the Board as the basis for its rejection of Stewart’s claim. The district court reached its conclusion only through the process of assuming what the Board would have said if it had articulated the factors relied upon as the basis for its decision. The issues squarely presented upon this appeal, therefore, are (1) whether the Board’s failure to specify the reasons for its action is fatal, and (2) if not, whether there was a factual basis for the denial of Stewart’s claim.
Until very recently there was some precedential support in this Circuit, apparently relied upon by Judge Brieant, for the proposition that a local draft board, prior to the 1971 amendment noted in the margin, was “not required to give any reasons for its decisions,” United States ex rel. Zelman v. Carpenter, 457 F.2d 621, 622 n. 1, 624 (2d Cir. 1972), and that where the board failed to specify its reasons other than in general conclusory terms the court could independently search the record to determine whether there was a basis in fact for the board’s decision, see Weissman v. Officer of the Day, 444 F.2d 1326, 1328 (2d Cir. 1971); Rosengart v. Laird, 449 F.2d 523, 529 (2d Cir. 1971), vacated and remanded, 405 U.S. 908, 92 S.Ct. 931, 30 L.Ed.2d 779 (1972). The reasoning behind this approach, as the district court here recognized, was that a group of voluntary laymen cannot be expected to make detailed findings or statements of reasons of the type usually expected of professionals well versed in legal requirements for administrative review, see United States v. Aull, 341 F.Supp. 389, 394, aff’d, 469 F.2d 151 (2d Cir. 1972). However, at the same time there have been those who have consistently expressed apprehension lest the “mere ipse dixit of lack of sincerity from the Local Board or the hearing officer would create serious possibilities of abuse,” United States v. Corliss, 280 F.2d 808, 814 (2d Cir.), cert. denied, 364 U.S. 884, 81 S.Ct. 167, 5 L.Ed.2d 105 (1960), and who have emphasized that while “boards of volunteer laymen cannot be expected to express themselves with the elaboration of expert regulatory agencies” it is important for a reviewing court to know the grounds upon which the board acted. Paszel v. Laird, 426 F.2d 1169, 1175 (2d Cir. 1970). A serious claim of conscientious objection, it was observed, “deserved something better than an ambiguous checkmark,” id. See also United States v. Deere, 428 F.2d 1119 (2d Cir. 1970); United States v. Lenhard, 437 F.2d 936 (2d Cir. 1970). At least five other circuits, moreover, concluded, prior to more recent Supreme Court decisions on the subject (discussed below), that a local board’s failure to state the reasons for its action constituted a denial of due process requiring reversal, in such instances, of a conviction based upon the refusal to obey the board’s induction order. United States v. Edwards, 450 F.2d 49 (1st Cir. 1971); United States v. Speicher, 439 F.2d 104 (3d Cir. 1971); United States v. Broyles, 423 F.2d 1299 (4th Cir. 1970) (en banc); United States v. Stetter, 445 F.2d 472, 481-85 (5th Cir. 1971); United States v. Jamison, 463 F.2d 1219 (9th Cir. 1972).
Any uncertainty as to whether a local board’s failure to articulate its reasons for denial of conscientioüs objector status calls for reversal of the applicant’s later conviction was eliminated by the Supreme Court’s recent decisions in Joseph v. United States, 405 U.S. 1006, 92 S.Ct. 1274, 31 L.Ed.2d 473 (1972), and in Lenhard v. United States, 405 U.S. 1013, 92 S.Ct. 1296, 31 L.Ed.2d 477 (1972). In Lenhard, which went to the Supreme Court from this Circuit, the local board had, without stating any reasons, denied appellant’s application for status as a conscientious objector and classified him I-A, following which he failed to respond when called for induction. After Lenhard was convicted we, upon appeal, remanded the case to the district court to determine whether there was a factual basis for the board’s classification. The district court, following a hearing in which board members testified as to their reasons for concluding that Lenhard was insincere, reinstated the conviction. We affirmed.
Upon Lenhard’s petition to the Supreme Court for a writ of certiorari the Solicitor General filed a memorandum requesting that the writ be granted, the judgment vacated, and the conviction reversed on the ground that since Len-hard’s application had made out a prima facie claim for classification as a conscientious objector the failure of the local board to state its reasons for its denial of his claim precluded meaningful administrative review as mandated by Mulloy v. United States, 398 U.S. 410, 416, 90 S.Ct. 1766, 26 L.Ed.2d 362 (1970). With respect to the requirement that the board state its reasons the Solicitor General’s memorandum stated:
“[W]e are unable to subscribe fully to the Second Circuit’s remand procedure in the circumstances of this case. It is here undisputed that petitioner stated a prima facie case for conscientious objector status, that the local board regarded the claim as sufficient to warrant a reopening of the classification (Mulloy v. United States, 398 U.S. 410, 90 S.Ct. 1766, 26 L.Ed.2d 362), and that, therefore, reasons should have been stated by the board in support of its decision (see Gov’t. Mem. on Merits in Joseph v. United States, No. 70-251, this Term, pp. 18-23). Only in this way can a registrant, whose claim has ‘met the statutory criteria’ (Parrot v. United States, 370 F.2d 388 (C.A.9)), and whose ‘veracity * * * is the principal issue’ (United States v. Washington, 392 F.2d 37, 39 (C.A.6)), be assured of a ‘meaningful review’ (cf. Gonzales v. United States, 348 U.S. 407, 415, 75 S.Ct. 409, 99 L.Ed. 467) of the administrative determination, not only by the courts (see, e. g., Scott v. Commanding Officer, 431 F.2d 1132 (C.A.3); United States v. Haughton, 413 F.2d 736 (C.A.9.)), but also by the State Appeal Board (see, e. g., United States v. Speicher, 439 F.2d 104 (C. A.3); United States v. Broyles, 423 F.2d 1299 (C.A.4)).
* * # * *
“Our difficulty is ... at the administrative review level; we agree with the dissent below that the belated revelation at the hearing following the trial of the local board’s reasons does little to make the earlier review of the claim by the State Appeal Board any more meaningful. While that review is de novo, the Selective Service regulations provide that the one taking an administrative appeal shall have an opportunity to submit a written statement to the State Appeal Board setting forth in what manner he believes the local board erred (32 C.F.R. 1626.12). As this Court recognized many years ago in Gonzales v. United States, supra, 348 U.S. at 415, 75 S.Ct. 409, ‘the right to file a statement before the Appeal Board includes the right to file a meaningful statement, one based on all the facts in the file and made with awareness of the recommendations and arguments to be countered.’ This, we think, requires, at the very least, knowledge of the grounds for the local board’s decision. See, e. g., United States v. Broyles, supra, 423 F.2d at 1305-1306; United States v. Washington, supra, 392 F.2d at 39.”
The Supreme Court thereupon remanded both Lenhard and Joseph, a similar case, “for consideration in the light of the position now asserted by the Solicitor General.” 405 U.S. 1006, 1013. Upon remand we reversed Lenhard’s conviction. 461 F.2d 1268 (1972).
We interpret the Supreme Court’s decisions in Lenhard and Joseph as dictating that where an applicant states a prima facie case for classification as a conscientious objector and the local board fails to state its reasons for denial of the application, thus precluding meaningful administrative review, a conviction based upon the board’s I-A classification must be reversed. United States v. Holby, 477 F.2d 649, 651, 656-657 (2d Cir. 1973). Accord, United States v. Hulsey, 463 F.2d 1071, 1075 (7th Cir. 1972); United States v. Hanson, 460 F.2d 337, 342-343 (8th Cir. 1972). An independent review by the district court to determine whether a “basis in fact” existed for the local board’s action is not an adequate substitute for the board’s failure to articulate its premises. Aside from the questionable propriety of a court’s substitution of its speculation for the board’s silence, see SEC v. Chenery Corp., 318 U.S. 80, 94, 63 S.Ct. 454, 87 L.Ed. 626 (1943), the court’s findings, which occur after the administrative review, come too late to enable the applicant to rebut or refute them upon review by the Appeal Board.
We have further recognized recently, in considering the “reasons” requirement in connection with review of an ROTC cadet’s application for discharge as a conscientious objector, that the requirement is not satisfied by a board’s mere conclusory statements of insincerity. The facts or factors relied upon by the board must be stated. United States ex rel. Checkman v. Laird, 469 F.2d 773, 785 (2d Cir. 1972); see United States v. Andersen, 447 F.2d 1063, 1065 (9th Cir. 1971). Otherwise the reviewing board cannot know whether the local board based its decision on valid or invalid grounds. Furthermore, in view of our recent holding that the appeals board may affirm the findings of the subordinate board without restatement of the reasons for its decision, United States v. Orr, 474 F.2d 1365, 1369 (2d Cir. 1973), it becomes all the more important that the local board specify the facts forming the basis of its decision.
Application of these principles here mandates a reversal. The Local Board concluded summarily that it was “not convinced of the sincerity of Registrant’s claim.” In the words of the district court, the Board “indicated no specific fact or reason which led to its conclusion.” Although the Board had stated in its earlier rejection that Stewart was “not a genuine conscientious objector ... in that [his] objection is not to all wars but to the present specific war” he promptly objected to the clerk’s handwritten summary of the earlier courtesy interview, which apparently was the basis for the Board’s action, as inaccurate. He further affirmed in person and in writing that he at no time stated that he would have fought in World War II. He contended that what he had said was that, assuming he had lived in the days of World War II (which he had not) and had been raised in the same beliefs as people in that era, he probably would have signed up, but that he had been raised in a different era, with a different perspective on war and a different understanding of war’s influences and, as a consequence, was sincerely opposed to war generally.
Confronted with this issue as to what had been said by Stewart, the Board owed a duty to be more specific in stating the reason for its action, particularly since it was now summarizing a decision based upon the interview to which Stewart was entitled as a matter of right, as distinguished from the earlier “courtesy” interview. Instead of specifying the basis of its November 18 decision, however, the Board issued a cryptic, conclusory sentence which leaves us to speculate as to the reasons for the denial of the application. Some of those possible reasons might have been valid, others invalid. The Board may have concluded, for instance, that its record of the first interview was accurate and that it did not believe Stewart’s version of his earlier oral statement to the Board or his professed opposition to all war. On the other hand, it may have decided that its clerk’s earlier longhand notes were inaccurate and that Stewart had in fact consistently maintained his objection to all wars at both hearings, but nevertheless have concluded that he should be denied conscientious objector status because of his statement that under the hypothetical conditions assumed by him, he probably would have signed up in World War II. Or the Board may have acted because it believed his profession of conscientious objection to be a recent contrivance by a “glib college kid.” If the Board had articulated any of these premises, Stewart would at least have had a chance upon administrative review to demonstrate either the falsity or the invalidity of the Board’s reasoning. In the absence of any specification by the Board of the factual basis for its decision, however, he was deprived of that opportunity.
Even assuming arguendo that the Board based its decision on the ground that Stewart was opposed to war on a selective, rather than on a general, basis we seriously question whether there is a sufficient factual basis to support that conclusion. The record reveals that Stewart repeatedly expressed himself, both before and after both interviews, as being opposed to war in any form. The view that he “would have served in a war like World War 2” appears to have been based on a misunderstanding as to the hypothetical nature of the assumptions which underlay his views with respect to that war. What he appears to have said was that if he had lived in the era of World War II (which he had not) and if he had been exposed to the same influences as had his father prior to and during that war (which he had not been) he probably would have served in World War II, just as his father had done. This frank concession is hardly inconsistent with his current opposition to all wars, including World War II if it were presently being conducted. However, since Stewart’s conviction must be reversed because of the Board's failure to state its reasons, we need not pursue the subject further except to note that the very uncertainty and speculation engendered by the Board’s cryptic disposition of the case points to the wisdom of the Supreme Court’s recent imprimatur on the rule requiring that reasons be stated for the Board’s denial of a registrant’s claim to be classified as a conscientious objector.
Stewart further urges that he was denied due process because of the Appeal Board’s failure to state the reasons for its affirmance of the local board’s I-A classification and because of the Appeal Board’s inadequate consideration of his ease. The first of these contentions has been rejected in a recent decision of this court, to which we adhere. United States v. Orr, supra. The second presents a more serious issue. The Appeal Board was required to give Stewart’s appeal such consideration as would satisfy due process requirements and permit a full and fair disposition of his contentions. Mulloy v. United States, 398 U.S. 410, 416, 90 S.Ct. 1766, 26 L.Ed.2d 362 (1970); Mintz v. Howlett, 207 F.2d 758, 762 (2d Cir. 1953). That Board’s minutes, however, reveal that in a period .of one hour on February 18, 1971, it reviewed 102 local board classifications, including that of Stewart, of which 89 were sustained and 13 were reversed. None of the six conscientious objector appeals was granted.
These facts may raise a due process question. However, since we have concluded that the conviction must be reversed for the reasons already stated, it becomes unnecessary to remand for resolution of the issue raised as to the adequacy of administrative review of Stewart’s classification. For the same reason, it is unnecessary to discuss appellant’s final argument, that the failure of the clerk of the Local Board to transmit to Board members any of appellant’s post-November 18 communications denied him due process.
The conviction is reversed and the case is remanded with directions to dismiss the indictment.
. “I don’t know what I was thinking when I registered for the draft — maybe the approach of college was on my mind, and my father had always assured me that I would not have to go to war. However, though I am not aware of the exact timetable which brought me to this stance, I do sense a continuing logic towards it. The war in Viet Nam of course forced me to become outraged, and its existence demanded that I formulate my response. . I know I decided . . . that I somehow could not cooperate with our military effort.”
. “The board asked registrant had any of his family been in service. Registrant said yes — his father and uncles served in the military. Also what did registrant think of World War 2, would he have served. Registrant said he could understand World War 2 but this war (Vietnam) he cannot serve. He stated that there are different ways to defend the country. He said he would serve alternate service, such as working in a hospital.”
. “I have read my file, and the report of 'my interview indicates that I said I would have fought in World War II. At not [sic] point was I asked that question, nor did I say that. Since the decision was made on the grounds that I said something I did not say, I feel certain that there was a confusion during the interview which I would like to correct with the personal appearance.”
. Section 101(a) (36) of Public Law 92-129, enacted September 28, 1971, and codified at 50 U,S.C. App. § 471a (b) (4) (1972 Supp.), requires that pursuant to such rules and regulations as the President may prescribe, “[i]n the event of a decision adverse to the claim of a registrant, the local or appeal board making such decision shall, upon request, furnish to such registrant a brief written statement of the reasons for its decision.” See 32 C.F.R. § 1623.4(c) (1972).
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
songer_geniss
|
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. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous".
UNITED STATES of America, Plaintiff-Appellee, v. Ernest FAIRCHILD, Defendant-Appellant.
No. 75-1283.
United States Court of Appeals, Seventh Circuit.
Argued Sept. 24, 1975.
Decided Nov. 25, 1975.
Rehearing Denied Dec. 23,1975.
Certiorari Denied April 19, 1976.
See 96 S.Ct. 1682.
Julius L. Sherwin, Chicago, Ill., for defendant-appellant.
Samuel K. Skinner, U.S. Atty., Robert L. Herbst, Asst. U.S. Atty., Chicago, Ill., for plaintiff-appellee.
Before SWYGERT and STEVENS, Circuit Judges, and KUNZIG, Judge.
Honorable Robert L. Kunzig of the United States Court of Claims is sitting by designation.
STEVENS, Circuit Judge.
Appellant contends that his conviction for distributing counterfeit bills should be reversed because (1) the delay of 27 months between his arrest and trial violated his right to a speedy trial; and (2) evidence seized during a search incident to a warrantless arrest should have been suppressed because the arresting officers had ample time to obtain a warrant. He also questions the sufficiency of the evidence and the admissibility of the testimony of the witness Lee.
I.
The defendant was arrested on November 24, 1972, the indictment was returned on July 25, 1974, and his trial began on February 24, 1975. This delay of 27 months is long enough to require consideration of the other factors identified in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).
The government’s explanation for the delay of 20 months between arrest and indictment was that it was attempting to find others who were involved in the counterfeiting operation in order to try them with Fairchild. The Government also explained that before proceeding against Fairchild it wanted to complete the trial of an important witness whose testimony might have been unavailable had he been tried with Fairchild. These reasons are sufficient to foreclose any claim that the pre-indictment delay was designed by the Government to prejudice Fairchild’s defense. See United States v, Ricketson, 498 F.2d 367, 371 (7th Cir. 1974).
Neither of the two remaining factors — the defendant’s assertion of his right and possible prejudice caused by the delay — lends any support to defendant’s claim. He has made no showing of actual prejudice to his defense, other than a vague allegation that his memory was impaired. And defendant made little effort to have his case tried sooner. Although at some point after the indictment (the record is not clear as to the exact date) a speedy trial motion was filed, this motion was later withdrawn by defendant’s counsel who said there was “nothing urgent” about the case. Thus, the defendant simply has not shown enough prejudice to tip the Barker v. Wingo balance. Compare United States v. De Tienne, 468 F.2d 151 (7th Cir. 1972), cert. denied 410 U.S. 911, 93 S.Ct. 974, 35 L.Ed.2d 274 (no actual prejudice), with United States v. Macino, 486 F.2d 750 (7th Cir. 1973) (one witness died and memories were demonstrably impaired).
II.
Defendant’s second asserted ground for reversal is the district court’s denial of his motion to suppress evidence which was found in a search of his car at the time of his arrest. Defendant does not question the fact that the search was proper if the arrest was valid; nor does he challenge the existence of probable cause to arrest him. Rather, he contends that since the agents were in possession of ample information to justify the issuance of a warrant at least three days earlier and failed to offer any valid reason for not obtaining a warrant, the warrantless arrest was a violation of his rights under the Fourth Amendment.
In the absence of “a few specifically established and well delineated exceptions,” a warrantless search is a violation of the Fourth Amendment even when based on probable cause. See Coolidge v. New Hampshire, 403 U.S. 443, 455, 91 S.Ct. 2022, 29 L.Ed.2d 564. The question squarely raised by this appeal is whether warrantless arrests should likewise be treated as presumptively invalid. Prior to the decision by the Ninth Circuit in United States v. Watson, 504 F.2d 849 (1974), cert. granted 420 U.S. 924, 95 S.Ct. 1117, 43 L.Ed.2d 392 (1975), this question had been consistently answered in the negative. Presumably it will be answered definitively by the Supreme Court in the Watson case since the Court has granted certiorari.
. We have not previously been required to decide this precise question, although we have twice noted our opinion that no warrant is required when there is probable cause to arrest. See United States v. Rosselli, 506 F.2d 627, 629 n. 4 (1974); United States v. Cantu, 519 F.2d 494 at 496 n. 5 (1975). In these circumstances it seems appropriate for us to leave to the Supreme Court the question whether a well settled rule of constitutional law should now be changed.
III.
Defendant argues that the evidence is insufficient to support the conviction because the testimony of the principal witness, one South, is patently incredible. The asserted incredibility stems from the fact that South testified that he purchased notes from the defendant at a price of $40 per 100 and resold them at a lower price. The record, however, contains an explanation of this testimony which the jury was entitled to credit. South’s testimony indicates that he had not previously passed any counterfeit bills and made the decision to sell them at a loss because he was afraid to try to pass them. Although defendant makes a number of other arguments questioning the credibility of South’s testimony, we are satisfied that the jury was entitled to believe the incriminating evidence.
IV.
Finally, defendant argues that the testimony of the witness Lee should have been excluded because it was irrelevant and grossly inflammatory. Lee testified that, on a date shortly after the events charged in the indictment, Fairchild showed Lee a large quantity of bills in the trunk of his car, told Lee they were counterfeit, and offered to let Lee sell them.
Evidence of other criminal transactions is, of course, not admissible to show that the defendant has a “propensity” to commit the charged offense. United States v. Yarbrough, 352 F.2d 491 (6th Cir. 1965). Such evidence may, however, be admissible if, entirely apart from the matter of “propensity,” it has a tendency to make the existence of an element of the crime charged more probable than it would be without such evidence. See Rules 401 and 404(b) of the Fed. Rules of Evidence; United States v. McCoy, 517 F.2d 41, 43-44 (7th Cir. 1975); United States v. Rivera, 437 F.2d 879 (7th Cir. 1971), cert. denied, 402 U.S. 947, 91 S.Ct. 1638, 29 L.Ed.2d 115. Lee’s testimony in this case was relevant to an element of each count. The fact that Fairchild was in possession of a supply of counterfeit bills tended to prove that he had the ability to distribute the notes described in both counts and, further, that the passing of the single note described in Count II was not a mere accident or mistake.
Even though relevant, the evidence could have been excluded had the trial court found that its prejudicial effect outweighed its probative value. Fed. Rule of Evidence 403. However, such balancing is in the first instance left to the sound discretion of the trial judge, and there is no ground to say that he abused that discretion in this case.
Affirmed.
. Defendant was found guilty of (1) selling 70 counterfeit $10 Federal Reserve notes in violation of 18 U.S.C. § 473, and (2) passing an additional counterfeit $10 Federal Reserve note (on a different date), in violation of 18 U.S.C. § 472.
. In his opinion in United States v. Lockett, 526 F.2d 1110, released today, Judge Kunzig identifies the relevant factors to be balanced: “(1) length of delay, (2) reason for delay, (3) assertion of the right, and (4) prejudice to defendant.”
. The fact that most of the delay occurred pri- or to the indictment may explain the absence of a prompt demand for trial, see United States v. Lockett, supra, at p. 187, but does not demonstrate that appellant’s defense was prejudiced; he knew that he had been arrested on a counterfeiting charge.
. Defendant was arrested by agents of the United States Secret Service, who by 18 U.S.C. § 3056 are “authorized to make arrests without warrant for any offense against the United States committed in their presence, or for any felony cognizable under the laws of the United States if they have reasonable grounds to believe that the person to be arrested has committed or is committing such felony.” The Government agents had probable cause to arrest the defendants by, at the latest, November 21, 1972, but did not arrest him until November 24, 1972. Although investigation continued during this period, the agents knew no more about Fairchild at the time of his arrest than they did three days earlier. Thus, they had ample time in which to obtain a warrant.
. Ford v. United States, 122 U.S.App.D.C. 259, 352 F.2d 927 (1965) (an banc); United States v. Hall, 348 F.2d 837 (2d Cir. 1965); United States v. Miles, 468 F.2d 482 (3rd Cir. 1972); United States v. Morris, 477 F.2d 657 (5th Cir. 1973); United States v. Fachini, 466 F.2d 53 (6th Cir. 1972); United States v. Bazinet, 462 F.2d 982 (8th Cir. 1972).
. The principal arguments in favor of imposing the same warrant requirement for arrests as for searches are (1) that the language of the Fourth Amendment does not differentiate between searches and arrests; (2) that an arrest, even in a public place, may be at least as offensive to the citizen as a search of his home, and therefore comparable reasons of policy would support a rule requiring the prior assessment of probable cause by a neutral and detached magistrate; and (3) that such a rule would preclude the possibility that the police might arrange the time and place of an arrest to justify searches for which no warrant could be obtained. The principal arguments to the contrary are (1) that the existing rule is supported by the common law setting in which the Fourth Amendment was drafted, see United States v. Hall, 348 F.2d 837, 841 (2d Cir. 1965); (2) an exclusionary rule requiring arrest warrants in all cases, absent special circumstances, would have no deterrent effect unless the police were in fact seeking evidence, since an illegal arrest does not confer immunity on the arrestee; (3) the introduction of an additional procedural requirement in the administration of our system of criminal justice would impose some additional cost on an already overburdened system; and (4) the ex- , istence of a viable common law remedy for false arrest, as well as a federal remedy under 42 U.S.C. § 1983, may already provide an adequate deterrent to irresponsible arrests.
Question: What is the general issue in the case?
A. criminal
B. civil rights
C. First Amendment
D. due process
E. privacy
F. labor relations
G. economic activity and regulation
H. miscellaneous
Answer:
|
songer_usc1
|
11
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title.
QUEEN CITY SHOE MFG. CORPORATION v. COMMONWEALTH LAST CO. et al.
No. 3840.
Circuit Court of Appeals, First Circuit.
April 1, 1943.
J. Morton Rosenblum, of Manchester, N. H., and Walter M. Espovich, of Haverhill, Mass., for appellant.
Bernard A. Riemer, of Boston, Mass., and Charles W. Tobey, Jr., of Concord, N. H., for appellees.
Before MAHONEY and WOODBURY, Circuit Judges, and PETERS, District Judge.
PETERS, District Judge.
The appellant was adjudicated a bankrupt by the district court on the petition of three creditors, two of whom had previously assented in writing to a general assignment for the benefit of creditors, executed by the debtor, which was the sole act of bankruptcy relied upon in the petition.
The appellant answered the involuntary petition and moved to dismiss it because of the participation of two of the three creditors in the prior proceeding having for its purpose the adjustment of the affairs of the debtor. This motion was denied by the district court on the ground that the Chandler Act, by Section 59, sub. h, 11 U.S.C.A. § 95, sub. h, had removed the disqualification which might otherwise have estopped the two creditors in this case from acting as such in the involuntary bankruptcy proceeding and construed Section 59, sub. h, when applied to the admitted facts, as permitting these creditors to join in this bankruptcy petition. Section 59, sub. h, reads as follows:
“A creditor shall not he estopped to act as a petitioning creditor because he participated in any prior matter or judicial proceeding, having for its purpose the adjustment or settlement of the affairs of the debtor or the liquidation of his property, or to allege such prior matter or proceeding as an act of bankruptcy, unless he has consented thereto in writing with knowledge of the facts, if any, which would be a bar to the discharge of the debtor under this Act [title].”
It was admitted that there were no facts in this case which would be a bar to the discharge of the debtor under the Bankruptcy Act.
We think the district court fell into error when it said, in construing the statute:
“There is only one condition which would bar a creditor from joining in a petition in bankruptcy after having assented in writing to a common law assignment and that is when there are facts existing which would bar a bankrupt from obtaining a discharge and a petitioning creditor has knowledge of that fact.” [46 F.Supp. 961, 962.] _
_ This ruling limits the estoppel effect of the assent in writing to a case where there are existing facts which would bar a discharge; in effect, requiring for estoppel a combination of three facts, (1) the assent in writing, (2) facts present which would prevent a discharge and (3) knowledge by the creditor of those facts. The situation surrounding the passage of the legislation shows no indication that Congress intended by it to make a distinction between cases where the debtor can ultimately get his discharge and where he cannot.
Before the passage of the Chandler Ac* the practice and the decisions were not uniform in respect of the status of a petitioning creditor who had, previous to the institution of the involuntary bankruptcy, assented to or participated in other proceedings for the settlement of the affairs of the debtor, such as a receivership or an assignment for the benefit of creditors. Mr. Chandler, Chairman of the Committee, in making his report on the Bill, referring to the Section in question, stated that the new Section 59, sub. h * * *
“is designed to make definite the consent of any creditor to an equity receivership or an assignment for the benefit of creditors where it is afterwards claimed that he is estopped to use the same as an act of bankruptcy because he previously consented. The present practice is very loose, and the mere sending of a statement of account to a receiver or an assignee has been construed to constitute such consent as to prevent that creditor from becoming a petitioner in a subsequent involuntary petition.” House Hearings on H.R. 6439, 75th Congress, 1st Session Committee Report No. 1409.
To correct that particular loose practice the Chandler Act provided that thereafter a creditor should not be estopped unless his consent to the prior proceeding was in writing. It will be noted that the language is negative in character. It does not purport to codify the applicable law of estoppel. The prior law was and is that “a creditor who has assented in writing to the terms of a common-law assignment for the benefit of creditors is not entitled ordinarily to join in an involuntary petition alleging, as the sole act of bankruptcy, the making of the general assignment to which he has expressly assented.” Moulton v. Coburn et al., 1 Cir., 131 F. 201, 203, certiorari denied 196 U.S. 640, 25 S.Ct. 796, 49 L.Ed. 631.
Obviously, that principle should be applied here and the appellees disqualified from acting as petitioning creditors, unless the language of the last part of Section 59, sub. h, has limited the effect of a creditor’s prior written assent to an assignment to the special case where there are facts existing which will prevent a discharge of the debtor. We think the language should not be so construed. We believe it was the intention of Congress by this language merely to protect a creditor from possible bad faith of the debtor by saying, in substance, that the creditor shall not be estopped by his action in assenting to the assignment, even when in writing, if he did so in ignorance of existing facts which would prevent a discharge of the debtor. If there are no such facts the language does not apply.
Moulton v. Coburn, supra, was decided on the principle of election of remedies. A creditor of a bankrupt should not be held to a choice of methods of protecting his rights if he made the choice in ignorance of wrongful acts of the debtor which materially affected the rights of creditors. The court said, in that case:
“It must be assumed that the assenting creditor had knowledge of his rights under the bankruptcy act, and voluntarily chose to assent to the terms of the assignment in preference to exercising his rights under the act.”
The language in Section 59, sub. h, makes the assumed fact a statutory requisite to estoppel. If a bankrupt, for instance, has made a fraudulent conveyance of assets (a fact which would bar a discharge) a creditor should not be precluded from having that fact investigated in bankruptcy, with the aid of the machinery therein provided for reaching and distributing assets, unless he waived his right to do so with knowledge of the facts — facts which would naturally be well known to the debtor. In re Curtis et al., 7 Cir., 94 F. 630. See Collier on Bankruptcy, 14th Ed. pp. 656-657.
In the case before us it does not appear that the assent to the assignment for the benefit of creditors was signed under any circumstances, statutory or otherwise, which would prevent its having the usual effect, which was to disqualify the creditors who had so signed from acting as petitioning creditors in the subsequent involuntary petition in bankruptcy.
We conclude that the motion of the appellant in the district court to dismiss the involuntary petition should have been granted. The appeal is sustained with costs.
The judgment of the District Court is reversed and the case is remanded to that court for further proceedings not inconsistent with this opinion; the appellant recovers costs of appeal.
Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number.
Answer:
|
sc_certreason
|
B
|
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.
SHEPARD v. UNITED STATES
No. 03-9168.
Argued November 8, 2004
Decided March 7, 2005
Justice Souter delivered the opinion of the Court, except as to Part III, concluding that enquiry under the ACCA to determine whether a guilty plea to burglary under a nongeneric statute necessarily admitted elements of the generic offense is limited to the terms of the charging document, to the terms of a plea agreement or transcript of colloquy between judge and defendant in which the defendant confirmed the factual basis for the plea, or to some comparable judicial record of this information. Guilty pleas may establish ACCA predicate offenses, and Taylor’s reasoning controls the identification of generic convictions following pleas, as well as convictions on verdicts, in States with nonge-nerie offenses. The ACCA nowhere provides that convictions in tried and pleaded cases should be regarded differently, and nothing in Taylor's rationale limits it to prior jury convictions. This Court, then, must find the right analogs for applying Taylor to pleaded cases. The Taylor Court drew a pragmatic conclusion about the best way to identify generic convictions in jury cases. In cases tried without a jury, the closest analogs to jury instructions would be a bench-trial judge’s formal ruling of law and finding of fact; in pleaded cases, they would be the statement of factual basis for the charge shown by a transcript of plea colloquy or by written plea agreement presented to the court, or by a record of comparable findings of fact adopted by the defendant upon entering the plea. A later court could generally tell from such material whether the prior plea had “necessarily” rested on the fact identifying the burglary as generic. Taylor, supra, at 602. The Government’s arguments for a wider evidentiary cast that includes documents submitted to lower courts even prior to charges amount to a call to ease away from Taylor’s, conclusion that respect for congressional intent and avoidance of collateral trials require confining generic conviction evidence to the convicting court’s records approaching the certainty of the record of conviction in a generic crime State. That was the heart of the Taylor decision, and there is no justification for upsetting that precedent where the Court is dealing with statutory interpretation and where Congress has not, in the nearly 15 years since Taylor, taken any action to modify the statute. Pp. 19-23, 26.
Justice Souter, joined by Justice Stevens, Justice Scalia, and Justice Ginsburg, concluded in Part III that the rule in the Jones v. United States, 526 U. S. 227, 243, n. 6, and Apprendi v. New Jersey, 530 U. S. 466, 490, line of cases — that any fact other than a prior conviction sufficient to raise the limit of the possible federal sentence must be found by a.jury, absent a waiver by the defendant — is also relevant to ACCA sentencing. In a nongeneric State, the fact necessary to show a generic crime is not established by the record of conviction as it would be in a generic State when a judicial finding of a disputed prior conviction is made on the authority of Almendarez-Torres v. United States, 523 U. S. 224. Instead, the sentencing judge considering the ACCA enhancement would (on the Government’s view) make a disputed finding of fact about what the defendant and state judge must have understood as the prior plea’s factual basis, and the dispute raises the concern underlying Jones and Apprendi: the Sixth and Fourteenth Amendments guarantee a jury’s standing between a defendant and the power of the State, and they guarantee a jury’s finding of any disputed fact essential to increase a potential sentence’s ceiling. The disputed fact here is too far removed from the conclusive significance of a prior judicial record, and too much like the findings subject to Jones and Apprendi, to say that Almendarez-Torres clearly authorizes a judge to resolve the dispute. The rule of reading statutes to avoid serious risks of unconstitutionality therefore counsels the Court to limit the scope of judicial fact-finding on the disputed generic character of a prior plea. Pp. 24-26.
Justice Thomas agreed that the Court should not broaden the scope of the evidence judges may consider under Taylor v. United States, 495 U. S. 575, because it would give rise to constitutional error, not constitutional doubt. Both Almendarez-Torres v. United States, 528 U. S. 224, and Taylor, which permit judicial factfinding that concerns prior convictions, have been eroded by this Court’s subsequent Sixth Amendment jurisprudence. Pp. 26-28.
Souter, J., delivered an opinion, which was for the Court except as to Part III. Stevens, Scalia, and Ginsburg, JJ., joined that opinion in full, and Thomas, J., joined except as to Part III. Thomas, J., filed an opinion concurring in part and concurring in the judgment, post, p. 26. O’Connor, J., filed a dissenting opinion, in which Kennedy and Breyer, JJ., joined, post, p. 28. Rehnquist, C. J., took no part in the decision of the ease.
Linda J. Thompson, by appointment of the Court, 543 U. S. 806, argued the cause for petitioner. With her on the briefs were John M. Thompson and Jeffrey T. Green.
John P. Elwood argued the cause for the United States. With him on the brief were Acting Solicitor General Clement, Assistant Attorney General Wray, and Deputy Solicitor General Dreeben.
Gregory L. Poe, Roy T. Englert, Jr., Max Huffman, and Pamela Harris filed a brief for the National Association of Criminal Defense Lawyers as amicus curiae urging reversal.
Justice Souter
delivered the opinion of the Court, except as to Part III.
Title 18 U. S. C. § 924(e) (2000 ed. and Supp. II), popularly known as the Armed Career Criminal Act (ACCA), mandates a minimum 15-year prison sentence for anyone possessing a firearm after three prior convictions for serious drug offenses or violent felonies. The Act makes burglary a violent felony only if committed in a building or enclosed space (“generic burglary”), not in a boat or motor vehicle. In Taylor v. United States, 495 U. S. 575 (1990), we held that a court sentencing under the ACCA could look to statutory elements, charging documents, and jury instructions to determine whether an earlier conviction after trial was for generic burglary. The question here is whether a sentencing court can look to police reports or complaint applications to determine whether an earlier guilty plea necessarily admitted, and supported a conviction for, generic burglary. We hold that it may not, and that a later court determining the character of an admitted burglary is generally limited to examining the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.
I
Petitioner Reginald Shepard was indicted under 18 U. S. C. § 922(g)(1), barring felons from possessing a firearm, and pleaded guilty. At sentencing the Government claimed that Shepard’s prior convictions raised his sentencing range from between 30 and 37 months (under the United States Sentencing Guidelines) to the 15-year minimum required by § 924(e), pointing to four prior convictions entered upon Shepard’s pleas of guilty under one of Massachusetts’s two burglary statutes. Whereas the Government said that each conviction represented a predicate ACCA offense of generic burglary, the District Court ruled that Taylor barred counting any of the prior convictions as predicates for the mandatory minimum. 125 F. Supp. 2d 562, 569 (Mass. 2000).
In Taylor we read the listing of “burglary” as a predicate “violent felony” (in the ACCA) to refer to what we called “generic burglary,” an “unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.” 495 U. S., at 599. Because statutes in some States (like Massachusetts) define burglary more broadly, as by extending it to entries into boats and cars, we had to consider how a later court sentencing under the ACCA might tell whether a prior burglary conviction was for the generic offense. We held that the ACCA generally prohibits the later court from delving into particular facts disclosed by the record of conviction, thus leaving the court normally to “look only to the fact of conviction and the statutory definition of the prior offense.” Id., at 602. We recognized an exception to this “categorical approach” only for “a narrow range of cases where a jury [in a State with a broader definition of burglary] was actually required to find all the elements of” the generic offense. Ibid. We held the exception applicable “if the indictment or information and jury instructions show that the defendant was charged only with a burglary of a building, and that the jury necessarily had to find an entry of a building to convict....” Ibid. Only then might a conviction under a “nongeneric” burglary statute qualify as an ACCA predicate.
In this case, the offenses charged in state complaints were broader than generic burglary, and there were of course no jury instructions that might have narrowed the charges to the generic limit. The Government nonetheless urged the District Court to examine reports submitted by the police with applications for issuance of the complaints, as a way of telling whether Shepard’s guilty pleas went to generic burglaries notwithstanding the broader descriptions of the offenses in the complaints, descriptions that tracked the more expansive definition in Massachusetts law. The court concluded that Taylor forbade this, and that investigation within the Taylor limits failed to show that Shepard had three generic burglary convictions. The court accordingly refused to consider the 15-year mandatory minimum, though it did sentence Shepard somewhat above the standard level under the Sentencing Guidelines, on the ground that his criminal history category under the Guidelines did not do justice to his ample criminal record.
On appeal the First Circuit, following its earlier decision in United States v. Harris, 964 F. 2d 1234 (1992), vacated the sentence and ruled that complaint applications and police reports may count as “sufficiently reliable evidence for determining whether a defendant’s plea of guilty constitutes an admission to a generically violent crime,” 231 F. 3d 56, 67 (2000). As to each of Shepard’s prior convictions, the court remanded the case for the District Court to determine whether there was “sufficiently reliable evidence that the government and the defendant shared the belief that the defendant was pleading guilty to a generically violent crime.” Id., at 70.
The District Court again declined to impose the 15-year mandatory minimum, even though the Government supplemented its earlier submission with police reports or complaint applications on two additional burglary convictions. The District Judge noted that the only account of what occurred at each of the prior plea hearings came from an affidavit submitted by Shepard, who stated “that none of the details in th[e police] reports w[as] ever mentioned at his pleas,” that “the reports themselves were never read by the judge to him during the plea colloquy,” and that at no time “was he ever asked if the information contained in the . . . [rjeports w[as] true.” 181 F. Supp. 2d 14, 19 (Mass. 2002). Shepard further swore that “with respect to each report: [he] did not admit the truth of the information contained in the ... [rjeport as part of [his] plea and [had] never admitted in court the facts alleged in the report. . . .” Id., at 19-20 (internal quotation marks omitted). Based on this, the District Court found that the Government had failed to carry its burden to demonstrate that Shepard had pleaded to three generic burglaries.
The Court of Appeals again vacated the sentence. After observing that Shepard had never “seriously disputed” that he did in fact break into the buildings described in the police reports or complaint applications, 348 F. 3d 308, 311 (CA1 2003), the court rejected the District Court’s conclusion that the Government had not shown the requisite predicate offenses for the 15-year minimum sentence, id., at 314. The case was remanded with instructions to impose that sentence.
We granted certiorari, 542 U. S. 918 (2004), to address divergent decisions in the Courts of Appeals applying Taylor when prior convictions stem from guilty pleas, not jury verdicts. We now reverse.
II
We agree with the First Circuit (and every other Court of Appeals to speak on the matter) that guilty pleas may establish ACCA predicate offenses and that Taylor’s reasoning controls the identification of generic convictions following pleas, as well as convictions on verdicts, in States with non-generic offenses. See 348 F. 3d, at 312, n. 4 (citing cases). Shepard wisely refrains from challenging this position, for the ACCA nowhere provides that convictions in tried and pleaded cases are to be regarded differently. It drops no hint that Congress contemplated different standards for establishing the fact of prior convictions, turning on the basis of trial or plea. Nothing to that effect is suggested, after all, by the language imposing the categorical approach, which refers to predicate offenses in terms not of prior conduct but of prior “convictions” and the “elements] ” of crimes. Taylor, supra, at 600-601 (citing 18 U. S. C. § 924(e)). Nor does the ACCA’s legislative history reveal a lesser congressional preference for a categorical, as distinct from fact-specific, approach to recognizing ACCA predicates in cases resolved by plea. Taylor, supra, at 601. And certainly, “the practical difficulties and potential unfairness of a factual approach are daunting,” ibid., no less in pleaded than in litigated cases. Finally, nothing in Taylor’s, rationale limits it to prior jury convictions; our discussion of the practical difficulties inherent in looking into underlying circumstances spoke specifically of “cases where the defendant pleaded guilty, [in which] there often is no record of the underlying facts.” Ibid. Our job, then, is to find the right analogs for applying the Taylor rule to pleaded cases.
The Taylor Court drew a pragmatic conclusion about the best way to identify generic convictions in jury cases, while respecting Congress’s adoption of a categorical criterion that avoids subsequent evidentiary enquiries into the factual basis for the earlier conviction. The Court held that generic burglary could be identified only by referring to charging documents filed in the court of conviction, or to recorded judicial acts of that court limiting convictions to the generic category, as in giving instruction to the jury.
The Court did not, however, purport to limit adequate judicial record evidence strictly to charges and instructions, id., at 602 (discussing the use of these documents as an “example”), since a conviction might follow trial to a judge alone or a plea of guilty. In cases tried without a jury, the closest analogs to jury instructions would be a bench-trial judge’s formal rulings of law and findings of fact, and in pleaded cases they would be the statement of factual basis for the charge, Fed. Rule Crim. Proc. 11(a)(3), shown by a transcript of plea colloquy or by written plea agreement presented to the court, or by a record of comparable findings of fact adopted by the defendant upon entering the plea. With such material in a pleaded case, a later court could generally tell whether the plea had “necessarily” rested on the fact identifying the burglary as generic, Taylor, supra, at 602, just as the details of instructions could support that conclusion in the jury case, or the details of a generically limited charging document would do in any sort of case.
The Government argues for a wider evidentiary cast, however, going beyond conclusive records made or used in adjudicating guilt and looking to documents submitted to lower courts even prior to charges. It argues for considering a police report submitted to a local court as grounds for issuing a complaint under a nongeneric statute; if that report alleges facts that would satisfy the elements of a generic statute, the report should suffice to show that a later plea and conviction were for a predicate offense under the ACCA. There would be no reason for concern about unavailable witnesses or stale memories, the Government points out, and such limited enquiry would be consistent with Taylor because “[t]he underlying purpose [would be] the same as in examining the charging paper and jury instructions (which the Court endorsed in Taylor): to determine the nature of the offense of which petitioner was convicted, rather than to determine what he actually did.” Brief for United States 22-23. The Government stresses three points.
First, it says that the more accommodating view of evidence competent to prove that the plea was to a generic offense will yield reliable conclusions. Although the records of Shepard’s pleas with their notations that he “[a]dmit[ted] suff[icientj facts” do not necessarily show that he admitted entering buildings or structures, as would be true under a generic burglary statute or charge, the police reports suffice to show that the record of admitting sufficient facts “can only have plausibly rested on petitioner’s entry of a building.” Id., at 25.
Second, the Government pulls a little closer to Taylor’s, demand for certainty when identifying a generic offense by emphasizing that the records of the prior convictions used in this case are in each instance free from any inconsistent, competing evidence on the pivotal issue of fact separating generic from nongeneric burglary. “[TJhere is nothing in the record to indicate that petitioner had pleaded guilty based on entering a ship or vehicle on any of the occasions at issue.” Brief for United States 16.
Finally, the Government supports its call for a more inclusive standard of competent evidence by invoking the virtue of a nationwide application of a federal statute unaffected by idiosyncrasies of recordkeeping in any particular State. A bar on review of documents like police reports and complaint applications would often make the ACCA sentencing enhancement “hinge on the happenstance of state court record-keeping practices and the vagaries of state prosecutors’ charging practices.” Brief in Opposition 13 (internal quotation marks omitted).
On each point, however, the Government’s position raises an uncomfortable implication: every one of its arguments could have been pressed in favor of an enquiry beyond what Taylor allows when a jury conviction follows nongeneric instructions, and each is therefore as much a menace to Taylor as a justification for an expansive approach to showing whether a guilty plea admitted the generic crime. If the transcript of a jury trial showed testimony about a building break, one could say that the jury’s verdict rested on a finding to that effect. If the trial record showed no evidence of felonious entrance to anything but a building or structure, the odds that the offense actually committed was generic burglary would be a turf accountant’s dream. And, again, if it were significant that vagaries of abbreviated plea records could limit the application of the ACCA, the significance would be no less when the disputed, predicate conviction followed a jury trial and the stenographic notes of the charge had been thrown away.
The Government’s position thus amounts to a call to ease away from the Taylor conclusion, that respect for congressional intent and avoidance of collateral trials require that evidence of generic conviction be confined to records of the convicting court approaching the certainty of the record of conviction in a generic crime State. But that limitation was the heart of the decision, and we cannot have Taylor and the Government’s position both.
There is not, however, any sufficient justification for upsetting precedent here. We are, after all, dealing with an issue of statutory interpretation, see, e. g., Taylor, 495 U. S., at 602, and the claim to adhere to case law is generally powerful once a decision has settled statutory meaning, see Patterson v. McLean Credit Union, 491 U. S. 164, 172-173 (1989) (“Considerations of stare decisis have special force in the area of statutory interpretation, for here, unlike in the context of constitutional interpretation, the legislative power is implicated, and Congress remains free to alter what we have done”). In this instance, time has enhanced even the usual precedential force, nearly 15 years having passed since Taylor came down, without any action by Congress to modify the statute as subject to our understanding that it allowed only a restricted look beyond the record of conviction under a nongeneric statute.
Ill
Developments in the law since Taylor, and since the First Circuit’s decision in Harris, provide a further reason to adhere to the demanding requirement that any sentence under the ACCA rest on a showing that a prior conviction “necessarily” involved (and a prior plea necessarily admitted) facts equating to generic burglary. The Taylor Court, indeed, was prescient in its discussion of problems that would follow from allowing a broader evidentiary enquiry. “If the sentencing court were to conclude, from its own review of the record, that the defendant [who was convicted under a non-generic burglary statute] actually committed a generic burglary, could the defendant challenge this conclusion as abridging his right to a jury trial?” 495 U. S., at 601. The Court thus anticipated the very rule later imposed for the sake of preserving the Sixth Amendment right, that any fact other than a prior conviction sufficient to raise the limit of the possible federal sentence must be found by a jury, in the absence of any waiver of rights by the defendant. Jones v. United States, 526 U. S. 227, 243, n. 6 (1999); see also Apprendi v. New Jersey, 530 U. S. 466, 490 (2000).
The Government dismisses the relevance of the Jones-Apprendi implementation of the jury right here by describing the determination necessary to apply the ACCA as “involving] only an assessment of what the state court itself already has been 'required to find’ in order to find the defendant guilty.” Brief for United States 38 (quoting Taylor, supra, at 602). But it is not that simple. The problem is that “what the state court... has been 'required to find’ ” is debatable. In a nongeneric State, the fact necessary to show a generic crime is not established by the record of conviction as it would be in a generic State when a judicial finding of a disputed prior conviction is made on the authority of Almendarez-Torres v. United States, 523 U. S. 224 (1998). The state statute requires no finding of generic burglary, and without a charging document that narrows the charge to generic limits, the only certainty of a generic finding lies in jury instructions, or bench-trial findings and rulings, or (in a pleaded case) in the defendant’s own admissions or accepted findings of fact confirming the factual basis for a valid plea. In this particular pleaded case, the record is silent on the generic element, there being no plea agreement or recorded colloquy in which Shepard admitted the generic fact.
Instead, the sentencing judge considering the ACCA enhancement would (on the Government’s view) make a disputed finding of fact about what the defendant and state judge must have understood as the factual basis of the prior plea, and the dispute raises the concern underlying Jones and Apprendi: the Sixth and Fourteenth Amendments guarantee a jury standing between a defendant and the power of the State, and they guarantee a jury’s finding of any disputed fact essential to increase the ceiling of a potential sentence. While the disputed fact here can be described as a fact about a prior conviction, it is too far removed from the conclusive significance of a prior judicial record, and too much like the findings subject to Jones and Apprendi, to say that Almendarez-Torres clearly authorizes a judge to resolve the dispute. The rule of reading statutes to avoid serious risks of unconstitutionality, see Jones, supra, at 239, therefore counsels us to limit the scope of judicial factfinding on the disputed generic character of a prior plea, just as Taylor constrained judicial findings about the generic implication of a jury’s verdict.
IV
We hold that enquiry under the ACCA to determine whether a plea of guilty to burglary defined by a nongeneric statute necessarily admitted elements of the generic offense is limited to the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information.
The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings.
It is so ordered.
The Chief Justice took no part in the decision of this case.
The Government initially cited a fifth prior burglary conviction, but after failing to obtain adequate documentation about this conviction the Government focused on the other four.
Although Taylor involved prior burglaries, as this ease does, our holding in Taylor covered other predicate ACCA offenses. 495 U. S., at 600.
Several Courts of Appeals have taken a similar view, approving the use of some or all of these documents. United States v. Bonat, 106 F. 3d 1472, 1476-1477 (CA9 1997); United States v. Maness, 23 F. 3d 1006, 1009-1010 (CA6 1994); United States v. Smith, 10 F. 3d 724, 733-734 (CA10 1993) (per curiam) (construing United States Sentencing Commission, Guidelines Manual §4B1.2 (Nov. 1990)).
Like the Government, the dissent would allow district courts to examine a wider range of documents than we approve today, and its proposal is no more consistent with Taylor than the Government’s. Taylor is clear that any enquiry beyond statute and charging document must be narrowly restricted to implement the object of the statute and avoid evidentiary disputes. In the ease before it, the Court drew the line after allowing courts to review documents showing .“that the jury necessarily had to find an entry of a building to convict.” 495 U. S., at 602; see also ibid, (permitting a sentencing court to look beyond the state statute “in a narrow range of eases where a jury was actually required to find all the elements of generic burglary”). As we say in the text, there are certainly jury trials with record documents like those at issue here, never introduced at trial but “uncontradicted,” •post, at 31 (opinion of O’Connor, J.), and “internally consistent,” ibid., with the evidence that came in. The dissent would presumably permit examination of such documents, but Taylor assuredly does not.
The only way to reconcile the dissent’s approach with Taylor is to say that in Taylor the prior convictions followed jury verdicts while in this case each prior conviction grew out of a guilty plea. See post, at 36 (“Taylor itself set no rule for guilty pleas”). But Taylor has no suggestion that its reasoning would not apply in plea cases, and its discussion of the practical difficulties specifically referred to prior guilty pleas. 495 U. S., at 601. Moreover, as we have noted, see supra, at 19, and as the dissent nowhere disputes, the ACCA provides no support for such a distinction. We decline to create a distinction that Congress evidently had no desire to draw, that Taylor did not envision, and that we would be hard pressed to explain.
The dissent charges that our decision may portend the extension of Apprendi v. New Jersey, 530 U. S. 466 (2000), to proof of prior convictions, a move which (if it should occur) “surely will do no favors for future defendants in Shepard’s shoes.” Post, at 38. According to the dissent, the Government, bearing the burden of proving the defendant’s prior burglaries to the jury, would then have the right to introduce evidence of those burglaries at trial, and so threaten severe prejudice to the defendant. It is up to the future to show whether the dissent is good prophesy, but the dissent’s apprehensiveness can be resolved right now, for if the dissent turns out to be right that Apprendi will reach further, any defendant who feels that the risk of prejudice is too high can waive the right to have a jury decide questions about his prior convictions.
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_applfrom
|
A
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What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court).
Elaine BOYAR, Plaintiff-Appellant, v. The TRAVELERS INSURANCE COMPANY, Defendant-Appellee.
No. 24, Docket 30295.
United States Court of Appeals Second Circuit.
Argued Sept. 27, 1966.
Decided Nov. 2, 1966.
Bernard A. Helfat, Helfat & Helfat, New York City (J. Nathan Helfat, New York City, of counsel), for plaintiff-appellant.
Don F. Salkaln, Terhune, Gibbons & Mulvehill, New York City, for defendantappellee.
Before MOORE, FRIENDLY and KAUFMAN, Circuit Judges.
FRIENDLY, Circuit Judge:
This action by the widow of Herman Boyar to recover as beneficiary of a $25,-000 life insurance policy issued by The Travelers Insurance Company was begun in the Supreme Court of New York for New York County and removed to the District Court for the Southern District of New York because of diverse citizenship. After trial before Judge McLean and a jury, the widow recovered judgment only for $2,437.71, representing the premiums Boyar had paid plus interest.
The facts are somewhat unusual. In 1952, when 43 years old, Boyar took out a policy with the Travelers which also named Mrs. Boyar as sole beneficiary and provided not only for death benefits of $25,000 but also for retirement benefits from age 65; this required annual premiums of $1,795.75. On March 30, 1959, he discussed with Nathan Ratkin, the Travelers’ agent who had sold him the 1952 policy, the possibility of exchanging it for one not including retirement benefits and carrying consequently lower premiums. Ratkin later advised Boyar that Travelers would either rewrite the 1952 policy or issue a new ordinary life policy, at about half the former premiums. The differences between the two courses were stated to be that taking out a new policy would provide a refund of the entire cash value of $9800 on the 1952 policy whereas rewriting that policy would produce a refund of only $6569.75 with the balance remaining as an equity, and that if Boyar elected to take out a new policy, Travelers would pay for his physical examination whereas a rewriting of the old one would require Boyar’s paying $10 for this. There was no mention of the fact that the new policy would be contestable for two years whereas the old one no longer was.
Boyar chose to take out a new policy and, after his examination by the Travelers’ physician, this was delivered about July 2 or 3. The application stated the new policy was to replace the 1952 policy, and this was returned. A few days later Boyar paid the first premium on the new policy and Travelers paid him the $9800 cash surrender value of the old one. After having duly paid further premiums of $1799 on the 1959 policy, Boyar died of heart disease on February 25, 1961.
Travelers declined to pay the death benefit to Mrs. Boyar on the ground that her husband had given false answers to questions in the application as to examination or attendance by doctors within the last five years, the taking of electrocardiograms or blood studies, prior treatment for heart disease, and knowledge of physical impairments or disorders. When sued, it answered that for these reasons the policy was void and offered to refund the premiums paid.
Travelers presented substantial evidence that Boyar made misrepresentations in his application for the 1959 policy and that these were material in the sense that it would not have issued the policy had it known the truth. Mrs. Boyar asserted, however, that if these issues were found against her, Travelers could “rescind” the 1959 policy only by tendering back the whole consideration it received, and that this consisted not only of the premiums on that policy but also of the 1952 policy less the cash surrender value and the premiums that would have been payable thereunder. The judge ruled against this contention and instructed the jury generally, over plaintiff’s exception, that the facts concerning the 1952 policy “do not affect the issues that you are called upon to decide in this ease and that you are to pay no further attention to them.” The jury rendered a verdict only for a refund of the $1799 of premiums on the 1959 policy, with interest, and judgment was entered accordingly.
At first sight this seems a rather unjust result. It is fairly apparent, as defendant’s counsel conceded at the argument, that if Boyar had told the truth and Travelers had refused to issue the new policy, he would have stayed with the old one. Hence the only damage Travelers suffered from the misrepresentations was liability under the new policy rather than the old, and this, it might seem, can be compensated by requiring a refund of the cash surrender value and payment of the excess of the premiums under the old policy over those under the new, in both cases with interest, as a condition to recovery of the death benefit. Legal theories to support such a result can readily be found. Since Travelers was already committed to insure Boyars life for $25,000, the misrepresentation can be said to have been material only to the decision to do this under an ordinary life policy; hence equity allegedly is done by restoring the status quo ante. It could also be said that if Travelers is entitled to rescind the 1959 policy because of Boyar’s misrepresentation, Mrs. Boyar is entitled to rescind the surrender of the 1952 policy which Boyar made on the mistaken assumption that he was getting a valid new policy. Such seems to have been the theory of the court in a case, not cited by the parties, which is similar to Boyar’s in some respects, Life & Casualty Ins. Co. of Tennessee v. Gresham, 127 Fla. 234, 168 So. 812 (1936), see 3 Apple-man, Insurance Law and Practice § 1835 (1941). We believe this would be the proper result if Boyar acted in good faith and his omissions and misstatements were the consequences of carelessness or forgetfulness.
The case would stand differently, however, if Boyar deliberately led Travelers into issuing for ordinary premiums a policy to which he knew or should have known he was not entitled. The record by no means precludes an inference that Boyar’s desire to be rid of the policy with the retirement annuity might have been due to a realization that he had small chance of enjoying these benefits, which were to begin only in 1974. Although most of the misrepresentations related to events some time in the past, one concerned a visit to a specialist for a checkup and the taking of an electrocardiogram (which, however, showed merely an old infarction and did not alarm the physician) on March 23, 1959, only a week before Boyar informed Ratkin of his desire to change to an ordinary life policy. The premiums on the old retirement-life policy must have reflected the hedge that while early death would produce a loss to the insurer on the death benefit it would afford a profit on the annuity, whereas long life would do the reverse. Actuarial calculations are defeated if an insured can change his position by deceiving the insurer after he learns the odds have shifted in his case. A court should not encourage fraud by adopting a rule of law by which if the policy became incontestable or the misrepresentations were not discovered or could not be proved, the insured would reap the rewards of his deceit whereas in the contrary cases he would be no worse off than before — -heads I win, tails I can’t lose.
We think therefore that in addition to deciding whether Boyar made misrepresentations and whether Travelers would have declined to issue the new policy had it known the truth, the jury should have been asked to determine whether Boyar deliberately lied, believing or having reason to believe that the truth would prevent his obtaining insurance which a man with his record could not obtain at ordinary premiums. If it should so find, a refund of the premiums on the new policy, with interest, is all Mrs. Boyar ought in equity to receive; if it finds otherwise she would be entitled to $25,-000 less the $9800 cash surrender value of the old policy and the excess of premiums under the old policy over those under the new — all with appropriate interest. While it would be possible to limit a further trial to the additional point requiring resolution, we think the issues are so interrelated that a complete new trial would better serve the interests of justice. 28 U.S.C. § 2106.
The judgment is reversed and the cause remanded for a new trial consistent with this opinion. Costs on this appeal to abide the ultimate event.
. The answer also asserted that at the time of payment of the first premium and delivery of the policy, Boyar was not in good health — this being stated in the policy as a condition on its becoming effective. However, this point was not included in the statement of issues in the pretrial order or submitted to the jury.
. This problem did not exist in the Florida case just cited since there the beneficiary told the agent he did not want to exchange the previous policy on his child’s life unless the new policy would be equally invulnerable to attack despite the child’s fully disclosed existing illness.
Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)?
A. Trial (either jury or bench trial)
B. Injunction or denial of injunction or stay of injunction
C. Summary judgment or denial of summary judgment
D. Guilty plea or denial of motion to withdraw plea
E. Dismissal (include dismissal of petition for habeas corpus)
F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict)
G. Appeal of post settlement orders
H. Not a final judgment: interlocutory appeal
I. Not a final judgment: mandamus
J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment
K. Does not fit any of the above categories, but opinion mentions a "trial judge"
L. Not applicable (e.g., decision below was by a federal administrative agency, tax court)
Answer:
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songer_casetyp1_7-3-2
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B
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify 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 - torts".
Helen BORYK, as Administratrix of the Estate of William Boryk, Jr., Deceased, Helen Boryk, individually, and as surviving widow of William Boryk, Jr., Helen Boryk, as Natural Guardian of Stephanie Boryk, an infant, Plaintiff-Appellant, v. The deHAVILLAND AIRCRAFT CO., Ltd., Defendant-Respondent, and Aerolineas Argentinas and deHavilland Aircraft, Inc., Defendants.
No. 301, Docket 29066.
United States Court of Appeals Second Circuit.
Argued Jan. 20, 1965.
Decided Feb. 16, 1965.
Edward M. O’Brien, New York City (Speiser, Shumate, Geoghan & Law, New York City, on the brief), for plaintiff-ap■pellant.
John F. Byrne, New York City (Men-des & Mount, New York City, on the Brief, Benjamin E. Haller, New York City, of counsel), for defendants-appel-lees.
Before MOORE, FRIENDLY and MARSHALL, Circuit Judges.
MOORE, Circuit Judge.
Plaintiff’s decedent was killed in an airplane crash in 1961. In 1962 she brought this wrongful death action against the airline (Aerolíneas Argen-tinas), the manufacturer of the plane, deHavilland Aircraft Co., Ltd. (a British corporation referred to as “Ltd.”), and its subsidiary, deHavilland Aircraft, Inc. (a Delaware corporation authorized to do business in New York and referred to as “Inc.”). Service on Ltd. was made in New York on Ian Fossett, President of Inc. Ltd, appeared specially, moving to set aside service and to dismiss the complaint as to it. Judge Bryan granted the motion, 228 F.Supp. 528 (S.D.N.Y. 1964), and plaintiff moved for reargument based on a subsequent decision by the Appellate Division of the New York Supreme Court, TACA Int’l Airlines, S. A. v. Rolls-Royce of Eng., Ltd., 21 A.D. 2d 73, 248 N.Y.S.2d 273 (1st Dep’t 1964). Finding that case not controlling, Judge Bryan denied reargument and entered final judgment pursuant to Fed.R.Civ.P. 54(b) dismissing the complaint against Ltd. Plaintiff appeals.
The question is whether under New York law Ltd. was “doing business” in New York to such an extent as to make it amenable to New York’s jurisdiction, and, if it was so amenable, whether service was made on a proper “managing agent.” The facts are not significantly in dispute and have been fully developed. Compare Gelfand v. Tanner Motor Tours, Ltd., 339 F.2d 317 (2d Cir. 1964). To Judge Bryan’s thorough findings, 228 F.Supp. at 530-533, only a brief summary need be added.
With Fossett as its representative, Ltd. began selling airplanes in this country in 1952 and providing service and parts for them. Inc., wholly owned by Ltd. and having several of the same directors, was created in 1954. Pursuant to a 1956 service agreement under which Ltd. paid Inc. $70,000 (later $85,000) per year, Inc substantially took over the activities Ltd. had been carrying on; Inc. had already been carrying on some of the operations. However, Inc. did not and apparently could not perform many of the services specified; rather, they were performed by Ltd. employees. The service agreement was formally terminated in 1961, although Ltd. still provided employees for certain servicing. While Inc. had a few years earlier taken over performance of a lease on space at the La Guardia Airport the lease was not actually transferred to Inc. until 1956. Ltd. made no-interest loans to Inc. on terms that would be unusual between independent entities, and Inc. paid substantial portions of its income out in “dividends” to Ltd. Substantially all of Inc.’s income derives from the sale and sei-vicing of products manufactured by Ltd. or other Ltd. subsidiaries; Inc. also sold spares for aircraft manufactured by some other British companies which, with Ltd., are members of the Hawker-Siddeley Group. A relatively insignificant amount from sales of aircraft polish accounts for Inc.’s only business not related to Ltd. Inc. places orders with Ltd. after receiving them from customers, and pays Ltd. only after receiving payment from the ultimate purchaser, to whom delivery is made by Ltd. Inc. is required by Ltd. to give warranties at least equivalent to those given by Ltd. Inc. has paid a variety of bills for Ltd. employees and officers when they have been in this country. Ltd. has an arrangement with a New York bank with respect to the payment of import duties. Inc.’s name is listed on Ltd.’s letterhead and Ltd. is listed in the World Aviation Directory as having an office in New York at Inc.’s address, Inc. being listed as Ltd.’s distributor. Separate books are maintained. \
In determining what the New York Court of Appeals would do with the facts of this case, see Arrowsmith v. United Press Int’l, 320 F.2d 219 (2d Cir. 1963), we have a recent decision of that court not available to the trial court, namely, the affirmance of the Appellate Division’s decision in TACA, 15 N.Y.2d 97, 256 N.Y.S.2d 129, 204 N.E.2d 329 (1965). That decision indicates New York’s steady movement towards holding, that in determining whether a corporation has engaged in activities in the state, it is immaterial whether these are conducted through a branch or through a subsidiary corporation, even though the latter’s formal independence has been scrupulously preserved. Of course, mere ownership by a foreign corporation of the stock of a subsidiary doing business in New York still does not subject the foreign corporation to the jurisdiction of New York, See Cannon Mfg. Co. v. Cudahy Packing Co., 267 U.S. 333, 45 S. Ct. 250, 69 L.Ed. 634 (1925).
Chief Judge Desmond in TACA considered that case “controlled” by Rabinowitz v. Kaiser-Frazer Corp., 198 Misc. 707, 96 N.Y.S.2d 642 (Sup.Ct.1950), aff’d, 278 App.Div. 584, 102 N.Y.S.2d 815 (2d Dep’t), aff’d, 302 N.Y. 892, 100 N.E.2d 177 (1951), a case no less similar to this case than it is to TACA. If there are differences they are merely reflections of the fact that more automobiles than airplanes are sold and that the sale of airplanes is rather episodic compared to the continuous flow of automobiles from England. Rolls-Royce showrooms are more commonly seen, one suspects, than showrooms of any, if not all, jet plane manufacturers — domestic and foreign.
While recognizing that in the area of jurisdiction the facts of each case determine the answer, we find the situation here more like that in State of Maryland for Use of Mitchell v. Capital Airlines, Inc., 199 F.Supp. 335 (S.D.N.Y. 1961), involving Vickers, than that in two earlier cases involving Ltd. itself, State St. Trust Co. v. British Overseas Airways Corp., 144 F.Supp. 241 (S.D.N. Y.1956), and Anderson v. British Overseas Airways Corp., 144 F.Supp. 543 (S. D.N.Y.1956). In those cases the events of the subsequent six years could not possibly have been known even on the fullest record, and the records in those cases were not nearly so revealing as the record in this case.
Ltd. being amenable to New York’s jurisdiction, there is a further question whether service was made on a proper “managing agent.” That Fossett or Inc. was not explicitly labelled “managing agent” by Ltd. nor “expressly authorized [by it] to accept service of process,” Cook v. Bostitch, Inc., 328 F. 2d 1, 3 (2d Cir. 1964), is not decisive. Here, as throughout the area of jurisdiction, the realities and not just the formalities must be dealt with. Thus, Judge Learned Hand stated that “whatever activities make the corporation ‘present,’ the agent in charge of those activities is the ‘managing agent’ pro hac vice.” Bomze v. Nardis Sportswear, Inc., 165 F.2d 33, 37 (2d Cir. 1948). See Lehn & Fink Prods. Co. v. Milner Prods. Co., 117 F.Supp. 320, 322 (S.D.N.Y.1953); State of Maryland for Use of Mitchell v. Capital Airlines, Inc., supra, 199 F.Supp. at 377; Rabinowitz v. Kaiser-Frazer Corp., supra, 198 Misc, at 713, 96 N.Y.S.2d at 646-647. Ltd’s timely answer indicates that it was not prejudiced by the actual method of service. Specification of the proper recipients of process is made to ensure that there will be actual notice to the responsible officers. That purpose has been served.
Reversed.
Question: What is the specific issue in the case within the general category of "economic activity and regulation - torts"?
A. motor vehicle
B. airplane
C. product liability
D. federal employer liability; injuries to dockworkers and longshoremen
E. other government tort liability
F. workers compensation
G. medical malpractice
H. other personal injury
I. fraud
J. other property damage
K. other torts
Answer:
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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.
SINGER MFG. CO. v. NATIONAL LABOR RELATIONS BOARD.
No. 7509.
Circuit Court of Appeals, Seventh Circuit.
March 21, 1941.
Writ of Certiorari Denied June 2, 1941.
See 61 S.Ct. 1119, 85 L.Ed.-.
Arthur E. Pettit, of New York City, and Roland Obenchain, of South Bend, Ind., for petitioner.
Robert B. Watts, General Counsel, N. L. R. B., of Washington, D. C., for respondent.
Before EVANS and KERNER, Circuit Judges, and LINDLEY, District Judge.
LINDLEY, District Judge.
Petitioner seeks to have set aside and respondent to enforce an order entered by the National Labor Relations Board June 6, 1940, determining that petitioner has refused to bargain in good faith with its employees and their regularly designated collective bargaining agent and directing it to cease and desist from such refusal and from “in any other manner interfering with, restraining or coercing” the employees in the exercise of their rights guaranteed by Section 7 of the Act. U.S.C.A., Title 29, Sec. 151 et seq. The Board ordered affirmatively that petitioner, upon request, bargain collectively with the bargaining agent, herein designated the United, and post notices of intention to comply. Petitioner insists that the record contains no evidence substantiating the finding that petitioner refused to bargain and that, under the proof, the order is directed toward compelling petitioner to maintain a state of mind rather than to perform specific acts, is too broad and, under the proof, wholly improper. No question is presented as to jurisdiction or as to the fact that the United was the duly designated bargaining agent.
At the outset, in considering whether there was substantial evidence to support a finding that petitioner has refused to bargain collectively, we are faced with a collateral question dependent largely upon the subsidiary inquiry (1) whether the order in effect seeks to compel petitioner and its officials to formulate in their minds specified mental concepts, and (2) how far, as a matter of law, the Board may go in determining whether an employer has bargained “in good faith.”
For more than a year petitioner and United had negotiated with reference to a written contract. Some twelve meetings, submission and resubmission of proposed drafts, suggestions and countersuggestions in regard thereto ended without tangible fruitful result. This evidence, petitioner asserts, can support a finding only that petitioner has negotiated within the meaning of the Act. The Board, on the contrary, found this dealing to be a sham, a pretense, carried on with actual intent upon the part of petitioner not to bargain and not to arrive at any agreement.
The Board’s conclusion of fact in this respect was that petitioner’s “* * * plan and purpose, reflected by its conduct during the negotiations, is clear. It would meet and deal with the United whenever requested, it would appear to listen with respectful attention to the United’s demands, and it would pretend a semblance of an endeavor to reach a mutual understanding. However, it would refuse to agree with the United to grant conditions of employment or make concessions which it was willing to grant the employees directly, and would require the United to accept less desirable conditions of employment than it would grant the employees if they bargained individually, or than they were legally entitled to receive in the absence of a collective agreement. Thus the petitioner’s hostility to the United would be manifested, membership in the United discouraged and, by pretending to bargain, collective bargaining defeated.” The natural effect of such course of conduct, the Board found, was to imply to employees that their best interests lay in their continued reliance upon the generosity and good will of their employer; that the United could not secure for them any substantial objective sought by them with respect to terms and conditions of employment, but that, on the contrary, the employees’ continued membership in the United constituted a threat of loss of desirable conditions and terms already enjoyed and that petitioner entertained no desire to reach an agreement with the United and made no effort in good faith so to do. Concerning the statutory burden of petitioner, the Board said “The duty encompasses an obligation to enter into discussion and negotiation with an open and fair mind and with a sincere purpose to find a basis of agreement concerning the issues presented, and to make contractually binding the understanding upon terms that are reached.”
Petitioner asserts that upon this reasoning men may, by legislative fiat and administrative order, be compelled to be “fair, just, honorable, generous, kind and humane,” that if the Board may enter this order, it may equally as reasonably direct abolishment of “selfishness, greed, cruelty and hostility.” It invokes the premise that laws are made to govern action, not to control beliefs and opinions. With this hypothesis we have no quarrel. And we think its reasoning wholly compatible with the present situation. We realize full well that Congress has provided only that certain acts shall be performed or omitted. The statute requires of the employer that he bargain collectively and whether he does so depends upon the character of his acts of commission or omission. Collective bargaining is an act; pretended collective bargaining is an omission to perform the act, and no unusual difficulty arises because, in determining whether bargaining within the meaning of the Act has indeed occurred, the trier of the facts must determine whether the acts proved were rendered in good faith or were merely in pretended good faith and performed with the actual intent to achieve the very opposite of collective bargaining. Existence or nonexistence of good faith, just as existence and nonexistence of intent, involve only inquiry as to fact. Whether a crime has been committed not infrequently depends upon existence or nonexistence of a felonious intent. Whether one is a bona fide purchaser for value of negotiable paper before maturity without notice puts in issue questions of fact. The neutrality required of an employer in his transactions with his employees is another intangible product of fact, the existence or nonexistence of which usually depends upon the character of acts committed or omitted. The civil law furnishes repeated instances of application of the principle.
By the Labor Act, Congres-s, with expressed intent to prevent industrial strife and to promote industrial peace, has conceived and enacted remedial legislation. It has placed upon the employer the duty, in the interest of public welfare, to enter into discussion with its employees with open and fair minds, with sincere purpose to find basis for agreement. No employer, party to a labor controversy, may rightfully refuse to comply and thus work a detriment to the public interest, peace and welfare. In Virginian Railway Co. v. System Federation No. 40, 300 U.S. 515, 57 S.Ct. 592, 597, 81 L.Ed. 789, the court reviewed a decree requiring the railroad company to “treat with” the agent of its employees and to “exert every reasonable effort to make and maintain agreements.” The company insisted that its obligation to bargain was not a fit subject of a decree in equity because negotiation depends upon desires and mental attitudes, far beyond judicial control. It argued that, since equity cannot compel parties to make an agreement, it will not compel them to take the preliminary steps which may result in agreement. But the court rather curtly disposed of this contention, saying: “Whether an obligation has been discharged, and whether action taken or omitted is in good faith or reasonable, are everyday subjects of inquiry by courts in framing and enforcing their decrees.” The greatest of rascals may solemnly affirm his honesty of purpose; that does not foreclose a jury from finding from the evidence submitted that he possesses no trace of such innocent quality. We think the Board had full authority to determine as a fact whether petitioner was acting in good faith or whether its actions amounted to a mere superficial pretense at bargaining, — whether it had actually the intent to bargain, sincerely and earnestly, — whether the negotiations were captious and accompanied by an active purpose and intent to defeat or obstruct real bargaining. N. L. R. B. v. Whittier Mills Co., 5 Cir., 111 F.2d 474; Agwilines, Inc. v. N. L. R. B., 5 Cir., 87 F.2d 146; N. L. R. B. v. Express Publishing Co., 5 Cir., 111 F.2d 588; Globe Cotton Mills v. N. L. R. B., 5 Cir., 103 F.2d 91; N. L. R. B. v. Griswold Mfg. Co., 3 Cir., 106 F.2d 713; N. L. R. B. v. Link-Belt Co., 61 S.Ct. 358, 85 L.Ed.-; New Idea, Inc. v. N. L. R. B., 7 Cir., 117 F.2d 517; Virginian Railway Co. v. System Federation No. 40, 300 U.S. 515, 57 S.Ct. 592, 81 L.Ed. 789.
Petitioner insists in this connection that the order is vague and indefinite. We do not think the criticism well founded. If substantial evidence supports the finding of no bona fide attempt to bargain, the Board may not dictate the terms of the formal contract; but it may direct petitioner to do that which the Act requires,— to bargain in good faith. In this we think there is no vagueness. We have no doubt that if petitioner so acts as to indicate its bona fides, it will experience no difficulty. It cannot be forced to enter into an agreement but it can be compelled to conduct negotiations in an honest attempt to arrive at an agreement in conformity with the spirit and intent of the Act. The negotiations may fail, but petitioner will experience no hardship in so acting as to convince the Board or the court of its honesty of purpose.
Obviously all we have said concerning the order is dependent upon the ultimate question of whether there was substantial evidence to support the Board’s finding of failure to bargain collectively in good faith. Consequently it has been necessary to examine the record.
In December, 1936, certain of petitioner’s employees were chartered as a local of the United Automobile Workers of America. This group almost immediately took steps looking toward collective bargaining. On July 20, 1937 the union transferred its membership to the United Electrical, Radio & Machine Workers of America. At the request of United, conferences were had between its committee and petitioner in February, March, April and October, 1937, February, March and April, 1938, none of which resulted in a contract. On May 14, 1938, the Board issued a complaint charging that petitioner had refused to bargain. At the conclusion of the hearing thereon, the examiner allowed the motion of petitioner that the complaint be dismissed on the merits, counsel at that time stating that the management had been and would in the future be willing to bargain with United. In the present proceeding, arising under a subsequent complaint, it was stipulated that the Board might receive the record of the original proceeding in evidence, provided, however, that the admission should not have the effect of raising any issue with respect to any act of petitioner occurring before May 25, 1938 and that the dismissal of the prior proceeding should remain res adjudicata respecting such acts. The Board, in arriving at its conclusion here involved, declared that evidence of events occurring prior to conclusion of the earlier proceeding had been considered only in determining the propriety of petitioner’s conduct since that time and not as basis for any finding of unfair practices. In other words, the Board confined its findings and conclusions to the conduct of petitioner subsequent to the termination of the first proceeding, except that it adverted collaterally to the earlier events in order to determine whether they threw any light upon the character of petitioner’s conduct since that time.
After dismissal of the original proceeding, petitioner and the United resumed negotiations in June, 1938, and thereafter twelve conferences were had (the last, subsequent to the filing of the present charge), wherein various proposed drafts of contracts were submitted, discussed and criticized. Petitioner submitted from time to time counterproposals. On April 11, 1939, United called a strike, relying, as immediate justification, upon the fact that petitioner had hired a new employee in preference to others previously laid off, who the United claimed deserved priority. This employee shortly thereafter resigned, however, and the strike persisted apparently because of the claim of United that petitioner had not bargained in good faith. Apparently, at the close of the conference on April 18, 1939, the parties were no nearer an agreement than at the beginning.
The complaint here involved was issued April 17, 1939 and hearing upon the charge of failure to bargain in good faith began on May 4, 1939. The evidence considered by the examiner included documents representing the recollections of petitioner’s representative as to what occurred at the conferences, various drafts of contracts submitted by United, letters exchanged between petitioner and United and oral testimony of representatives of United. The examiner’s findings and recommendations are not included in the transcript. The Board considered the evidence in its relationship to (1) paid holidays, vacations and bonuses; (2) wages; (3) hours of employment; (4) duration of contract; (5) discrimination, strike and lockouts, and (6) seniority. In so far as these subject matters were discussed in the various conferences, the evidence is not greatly in dispute. The disagreement of the parties arises out of the inferences drawn by the Board.
The dates of the conferences were June 16, 17 and 23; July 8, September 1, October 28, November 4 and 17, and December 16, 19, 1938; January 20, 1939; April 14, 1939, April 17 and 18, 1939. At the meetings prior to January 20, 1939, United presented proposed contracts, six in number. Two of them included some twenty articles dealing with an even greater number of matters. Petitioner made countersugges-tions ; no agreement was reached. On March 22, 1939 the United wrote petitioner that it had voted “not to participate in any further negotiations unless there is a chance of settlement” and postponed “indefinitely” petitioner’s offer of further conferences. Under date of March 27, 1939 petitioner expressed the hope that United might see fit to renew negotiations in the near future. At a conference held on April 14, 1939 there were present representatives of United and of petitioner and federal and state conciliators. United then requested resumption of collective bargaining and April 17, 1939 was agreed upon. On that date and on the 18th further conferences were had. United then declared that its committee would consider all of petitioner’s proposals and would prepare and submit to petitioner a new contract which would incorporate United’s views upon the subject of recognition, seniority, grievances, wages and hours, and requested that petitioner call the committee when it was possible to resume bargaining. Petitioner then stated that it was willing to consider such redraft as soon as the committee could deliver it; that it had received notice of hearing before the Board on May 4, 1939 and that because of this it might not be possible to renew negotiation until after the hearing. On April 19, 1939 United presented a draft containing seven articles. On April 28, petitioner replied thereto accepting the preamble, suggesting a substitute for Article I regarding recognition, making a counterproposal as to seniority of the character it had previously insisted upon, offering a counterproposal in lieu of Article III as to hours in accord with what it had previously urged, -suggesting that it saw no reason to change its position with regard to minimum rates, tendering a substitute article reducing wages ten per cent and other articles in lieu of Article V and Article VI as to grievances, strikes and lockouts and, finally, as to Article VII, urging that the contract should be indefinite in duration and continue until terminated. However, it said, this last question need not be a stumbling block. In none of the particulars mentioned did petitioner recede from its position in the conferences begun in early 1937 and continuing over a period of two years, except that it said that the duration clause need not constitute a stumbling block. Petitioner’s expressed attitude upon each of the controverted questions remained the same for the entire period. The record fails to disclose any attempt upon its part so to modify its demands as to meet any of the proposals of the union upon any of the matters discussed.
Proceeding to the specific subject matters involved, we find a controversy first as to paid holidays, vacations and bonuses. After considerable negotiation, United proposed that the then existing policy of the company with regard to paid vacations, legal holidays and bonuses be preserved in the contract, subject to collective bargaining thereafter. Petitioner claimed it had pursued a certain practice in this respect since 1936 and that it expected to continue the same, subject, however, to its discretion. It insisted that these items involved voluntary gratuities, the allowance or disallowance of which was to be determined by petitioner alone. It did not refuse to place in the proposed agreement a provision regarding this subject matter, and admitted that paid holidays and vacations and bonuses were proper elements to be considered in bargaining. But it insisted that the contract should provide that it might change its practice whenever “in its opinion such action seemed necessary” and refused a proposal that the agreement should provide for continuation of existing practice and modification thereof by either collective bargaining or arbitration. This position it maintained throughout the entire period of negotiation. The Board did not believe that this attitude was in good faith or in accord with the intent of the Act, for the reason that the number of paid holidays, the duration of vacations and bonuses were, within the contemplation of the legislation, matters obviously affecting the terms and conditions of employment and, therefore, proper subject matter for discussion and settlement by collective bargaining and that no employer dealing in good faith with its employees upon a proposed contract of employment could legitimately persistently refuse to enter into negotiations concerning such vital terms and conditions of employment. The Board believed the circumstances such as to justify a conclusion that petitioner was unwilling to contract with the United to do that which it had been in the habit of doing before United came into the shop. The Board’s position is that an employer who insists upon reserving the right to act unilaterally and of its own will alone upon matters involving legitimate collective bargaining and denies the employees any contractual provision for opportunity to bargain collectively with regard thereto thereby refuses to bargain collectively within the meaning of the Act. With this reasoning we agree. Petitioner’s default in this respect did not lie in its refusal to cover the subject matter by contract but in its refusal to preserve the right of collective bargaining with reference thereto.
The Board believed that the negotiations as to wages evinced a design upon petitioner’s part to impress upon its employees a comparative disadvantage of collective dealing. Shortly after the organization of United, petitioner’s plant manager called the union president and told him that the petitioner had learned that United had been recognized and asked what the grievance was. On January 3, following, petitioner voluntarily announced a general wage increase of five per cent. In April, after negotiations had been begun, petitioner rejected United’s request for a wage increase but within a month voluntarily granted a further ten per cent increase without reference to United or its position. However, in all conferences after disposal of the first proceedings, petitioner insisted that if there was not a ten per cent cut there could be no agreement. It suggested that it had not reduced wages since 1920; that between 1920 and 1929, rates had been raised and continued to be raised, with no reductions during the depression of 1935, with paid holidays in 1935 and bonuses in 1936; that it had granted two wage increases in 1937; that its officials’ salaries had been reduced; that the industry generally had cut wages in contrast to petitioner’s failure to do so; that the plant was engaged in the manufacture of cabinets which could be bought from furniture manufacturers; that it was in competition with the furniture industry, which had an average rate of 5.3.4 cents whereas petitioner was paying 77.1 per hour; that its business was in such condition that a cut was necessary and that wages must be restored to those in effect on May 29, 1937. From its position in this respect, petitioner at no time receded. United rejected the proposal when it was first submitted in April, 1938, and voted to authorize a strike if petitioner reduced wages as it said it was compelled to do. The works manager said he would not accept a contract which interfered with the company’s sole control of wages; that petitioner would decline to consult with United in the matter of reduction. Petitioner refused to refrain from further reductions during the life of the contract, except that it offered to agree to post a notice two weeks in advance of effective date of any reduction, so that, if United cared to, it might discuss the matter with the manager. We do not find any evidence that petitioner offered to agree to no further wage alteration. Rather the evidence is that its final proposal was that wages should be reduced ten per cent. Petitioner proposed that the contract should be so drawn that if petitioner and United could not agree, the United might propose arbitration which the company would be privileged to refuse, in which event both parties “would be free to act as they choose in the matter.”
The Board found inconsistency in petitioner’s attitude in that it demanded an immediate cut, saying that it was “imperative” and must be an integral part of any agreement, even though terminable on 30 days’ notice, but later declaring that the effective date of reduction could be fixed later. Thus, said the Board, petitioner clearly indicated that the reduction was not imperative and that demanding it was intended to convince the men that United could not obtain a proper collective agreement.
Petitioner could not be compelled to enter into a contract which did not reduce wages or which bound it not to make a reduction in the future. It had the right to insist that the question of wages be settled and such settlement was proper subject matter for collective bargaining. But the employees had the right also to include in the contract a clause recognizing the right to bargain collectively as to wages. Whether the parties agreed upon wages or came to an impasse, the employer could not, under this Act, refuse to have included in the contract a proper bargaining clause with reference to wages. This is subject matter no longer to be determined unilaterally by the employer. The Board itself suggested that it might not find sufficient evidence of a refusal to bargain in this respect alone but that it believed the circumstances such that, taken in connection with other evidence, they indicated upon the part of petitioner a determination not to bargain collectively as to wages and a further intent to refuse to include in any contract a proper bargaining clause as to wages.
As to hours of employment, on June 16, 1938, the United proposed an, 8-hour day, 40-hour week, which was then the regular schedule, and in addition time and a half for over-time. Petitioner at first insisted that over-time payment commence after a 9-hour day and a 49-hour week. When the Fair Labor Standards Law, 29 U. S.C.A. § 201 et seq., was enacted, petitioner proposed that the contract provide that no employee should work more than 1000 hours during any consecutive 26-week period. That Act established a standard of payment of time and a half for more than 44 hours per week, in the absence of existing agreement otherwise. The suggestion of petitioner clearly would have removed its existing standard and excused it from the normal obligation of the over-time payment provision of the Fair Labor Standards Act. It proposed to create a standard which had previously not been in existence at petitioner’s plant, much more favorable to it, for under its proposal these employees might be required to work 12 hours per day and 56 hours per week without payment for any over-time. United declined, but offered to accept as an alternative, a 9-hour day and 40-hour week, before over-time payment, or an 8-hour day and 44-hour week before over-time payment, as provided by the Fair Labor Standards Act, or reference of the matter to arbitration. Petitioner declared that it was willing to indicate that the company’s policy of an 8-hour day, 40-hour week, “would, so far as convenient, continue.” But it resisted all proposals to include a bargaining provision, on the ground of business necessities and a desire to be free to meet emergencies as it might deem necessary. But the record discloses no evidence of such necessities or emergencies. And again we find petitioner insisting upon express reservation of the right to determine terms of employment, limited in no way by provision for collective bargaining with reference thereto. It is difficult to conclude other than that the company’s attitude in this respect was an attempted evasion of the Fair Labor Standards Act and of the spirit and intent of the Labor Act. It was a question for the triers of the facts to determine whether petitioner’s acts and declarations upon this subject matter were in good faith or rather inspired by a desire to evade and escape the provisions of the Act.
The parties arrived no where upon the question of, duration of the proposed agreement. United suggested that the contract run for one year and continue from year to year unless cancelled for cause by either party upon 30 days notice. Petitioner insisted upon an unrestricted right to cancel on 30 days notice. United replied that the contract might be drawn subject to such termination but that it should continue for one year if not cancelled. Petitioner objected to this, saying that it was opposed to contracts for definite terms. United then reverted to its original suggestion, which met with rejection by petitioner. United offered to accept a qualification that if either party should desire to modify the annual contract, conference looking to this end might be called and if as a result the parties should fail to agree, the matter could then be arbitrated. This, too, was rejected by petitioner who said, however, that it was not averse to a limitation of 60 or 90 days. After the proceeding was instituted petitioner announced that it would be willing to agree upon some “reasonable initial period,” subject to the 30-day clause. The Board found inconsistency again in petitioner’s acts in that, though it rejected the one-year contract and insisted upon a 30-day cancellation right, nevertheless .it also declared that it desired a contract of indefinite duration in order to obviate necessity of periodic negotiations, saying that “a contract ought to continue for a long period of time and not automatically terminate.” The Board approved United’s reply that for all practical purposes petitioner’s suggestion would result in an indefinite contract for no longer than 30 days, if petitioner so willed; that any agreement ought to run for a definite time and that petitioner, contrary to its declared proposal, was really, by its suggestion, paving the way for frequently recurrent negotiations and consequent instability. We confess that reading of the record brings to us an inference of captiousness and inconsistency, upon the part of petitioner in this respect.
Concerning discrimination, strikes and lock-outs, United on June 16, 1938 submitted a clause by the terms of which petitioner promised not to discriminate against employees because of union activity. Petitioner insisted that this was unnecessary. To United’s insistence upon a clause binding the United to refrain from unfair tactics on any fellow employee and union solicitation on company time, petitioner agreed “in principle” but objected to any similar clause as to discrimination by itself upon the ground that such was its legal duty irrespective of contract. When United abandoned its request for a non-discrimination pledge by petitioner the latter persisted that United obligate its members as it had suggested.
United proposed that there be no strike by employees or lock-outs by employer until all peaceable means of resolving difficulties should be exhausted. Petitioner again replied that a provision against lock-outs was not necessary, as they were prohibited by law, but insisted upon a broad prohibition against what it considered wrongful strike activity by United, a violation of any of the terms of which would constitute basis for discharge of the employee. Once more United proposed to delete the provision forbidding lock-outs and to reduce the extent of restraint upon the right to strike as petitioner had urged. But these counterpro-posals were rejected. Obviously petitioner was not bound to accept any particular provision. The only question is as to whether its resistance was bona fide. The Board believed that the petitioner’s expressed reason for rejecting the lock-out provision was specious and that petitioner disclosed its lack of good faith when it said that lockouts were prohibited and that the clause was therefore, unnecessary.
The company manager refused to be bound not to shut down if the plant was picketed by non-employees. The Board believed that petitioner unreasonably attempt-ted to forestall use of economic weapons permissible in seeking amicable settlements through collective bargaining, and concluded that petitioner “denied to the designated representative of the employee that equality of status which the Act expressly sets forth as * * * an essential basis for collective bargaining” and “in effect, insisted that United accept an inferior position by accepting a contract which imposed restrictions only upon United, and in the most sweeping terms.”
The parties did not agree upon the terms of the seniority clause. Petitioner insisted that it should have the right to lay off or rehire on the basis of an employee’s (1) ability and fitness to perform service; (2) special training and (3) family status; that seniority should not be involved unless the employee should have been in petitioner’s employment for twelve months; that any 'employee should cease to be entitled to consideration for length of service if he should quit voluntarily or be discharged for cause or absent without permission or fail to return to work when called or if a period of three months had elapsed after he was last on the payroll. The discussion between the parties on this subject matter had to do chiefly with whether the element of family status should be included in determining seniority. Each party seems to have been equally tenacious, but United finally advised petitioner that it would accept the proposal on seniority if it could be shown that such is “the present policy practiced in the plant.” Petitioner rested upon its mere allegation that its suggestions conformed to its present practice. Facts proving such practice were clearly within its power to produce; its failure to do so does not carry an implication of good faith.
From these circumstances and others so voluminorrs that they have no place in this already too greatly extended opinion, the Board concluded that petitioner had not attempted to bargain in good faith. It considered petitioner an employer who in its mind did not give free assent to the Act or to attainment of the rights secured to employees thereby or to the intent of the Act to promote industrial peace but who desired and hoped to defeat the legislative purpose.
As we have point ed out, there is a duty to enter into discussion with an open mind. An employer must keep ever before him the remedial purpose and intent of the Act; he must not seal his mind against the thought of entering into an agreement but rather make a sincere and earnest effort to bargain collectively with the representative of his employees. N. L. R. B. v. The Boss Mfg. Co., 7 Cir., 118 F.2d 187, decided March 17, 1941. The circumstances appearing in the two years’ negotiations, fruitless as they were, all bore upon the question of good faith of the employer. The record may disclose instances of inconsistency upon the part of United’s committee, but the ultimate question was whether petitioner had bargained in good faith with its employees within the meaning of the Labor Act. This was essentially a question for those who pass upon the facts. Had this cause been tried in court, a question would have been presented which the judge might not rightfully have taken from the jury. We cannot say as a matter of law that the Board, the trier of the facts, was not justified in giving weight as it did to the circumstances we have recited and others appearing in the record as proof of failure of petitioner to make a genuine effort to arrive at an executed contract with its employees. The evidence is such as to prevent us from substituting, even if we preferred, a contrary conclusion for that of the Board.
Petitioner, complaining that that portion of the order which directs petitioner to cease and desist from interfering with, restraining or coercing its employees in the exercise of their rights guaranteed by Section 7 of the Act “in any other manner” is beyond the Board’s power, relies upon the language of this court in N. L. R. B. v. Swift & Co., 7 Cir., 108 F.2d 988, 990, wherein we said that the Board was not warranted in enjoining respondents in that cause from committing any act “which might constitute a violation of Sec. 7 of the Act.”
In the interest of certainty administrative orders and judicial judgments should be limited strictly to disposition of only such issues as are actually presented. The language of Mr. Justice Stone, in N. L. R. B. v. Express Publishing Company, 61 S.Ct. 693, 700, 85 L.Ed. -, decided March 3, 1941, as follows, is applicable: “The National Labor Relations Act does not give the Board an authority, which courts cannot rightly exercise, to enjoin violations of all the provisions of the statute merely because the violation of one has been found. To justify an order restraining other violations it must appear that they bear some resemblance to that which the employer has committed or that danger of their commission in the future is to be anticipated from the course of his conduct in the past. That justification is lacking here. To require it is no more onerous or embarrassing to the Board than to a court. * * * An appropriate order in the circumstances of the present case would go no further than to restrain respondent from any refusal to bargain and from any other acts in any manner interfering with the Guild’s efforts to negotiate.”
So here the order appropriately should go no further than restrain petitioner from refusing to bargain and from any other acts in any manner interfering with United’s efforts to negotiate. The order will be modified as indicated and, as modified, enforced.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
|
songer_typeiss
|
C
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups.
Helen BORYK, as Administratrix of the Estate of William Boryk, Jr., Deceased, Helen Boryk, individually, and as surviving widow of William Boryk, Jr., Helen Boryk, as Natural Guardian of Stephanie Boryk, an infant, Plaintiff-Appellant, v. The deHAVILLAND AIRCRAFT CO., Ltd., Defendant-Respondent, and Aerolineas Argentinas and deHavilland Aircraft, Inc., Defendants.
No. 301, Docket 29066.
United States Court of Appeals Second Circuit.
Argued Jan. 20, 1965.
Decided Feb. 16, 1965.
Edward M. O’Brien, New York City (Speiser, Shumate, Geoghan & Law, New York City, on the brief), for plaintiff-ap■pellant.
John F. Byrne, New York City (Men-des & Mount, New York City, on the Brief, Benjamin E. Haller, New York City, of counsel), for defendants-appel-lees.
Before MOORE, FRIENDLY and MARSHALL, Circuit Judges.
MOORE, Circuit Judge.
Plaintiff’s decedent was killed in an airplane crash in 1961. In 1962 she brought this wrongful death action against the airline (Aerolíneas Argen-tinas), the manufacturer of the plane, deHavilland Aircraft Co., Ltd. (a British corporation referred to as “Ltd.”), and its subsidiary, deHavilland Aircraft, Inc. (a Delaware corporation authorized to do business in New York and referred to as “Inc.”). Service on Ltd. was made in New York on Ian Fossett, President of Inc. Ltd, appeared specially, moving to set aside service and to dismiss the complaint as to it. Judge Bryan granted the motion, 228 F.Supp. 528 (S.D.N.Y. 1964), and plaintiff moved for reargument based on a subsequent decision by the Appellate Division of the New York Supreme Court, TACA Int’l Airlines, S. A. v. Rolls-Royce of Eng., Ltd., 21 A.D. 2d 73, 248 N.Y.S.2d 273 (1st Dep’t 1964). Finding that case not controlling, Judge Bryan denied reargument and entered final judgment pursuant to Fed.R.Civ.P. 54(b) dismissing the complaint against Ltd. Plaintiff appeals.
The question is whether under New York law Ltd. was “doing business” in New York to such an extent as to make it amenable to New York’s jurisdiction, and, if it was so amenable, whether service was made on a proper “managing agent.” The facts are not significantly in dispute and have been fully developed. Compare Gelfand v. Tanner Motor Tours, Ltd., 339 F.2d 317 (2d Cir. 1964). To Judge Bryan’s thorough findings, 228 F.Supp. at 530-533, only a brief summary need be added.
With Fossett as its representative, Ltd. began selling airplanes in this country in 1952 and providing service and parts for them. Inc., wholly owned by Ltd. and having several of the same directors, was created in 1954. Pursuant to a 1956 service agreement under which Ltd. paid Inc. $70,000 (later $85,000) per year, Inc substantially took over the activities Ltd. had been carrying on; Inc. had already been carrying on some of the operations. However, Inc. did not and apparently could not perform many of the services specified; rather, they were performed by Ltd. employees. The service agreement was formally terminated in 1961, although Ltd. still provided employees for certain servicing. While Inc. had a few years earlier taken over performance of a lease on space at the La Guardia Airport the lease was not actually transferred to Inc. until 1956. Ltd. made no-interest loans to Inc. on terms that would be unusual between independent entities, and Inc. paid substantial portions of its income out in “dividends” to Ltd. Substantially all of Inc.’s income derives from the sale and sei-vicing of products manufactured by Ltd. or other Ltd. subsidiaries; Inc. also sold spares for aircraft manufactured by some other British companies which, with Ltd., are members of the Hawker-Siddeley Group. A relatively insignificant amount from sales of aircraft polish accounts for Inc.’s only business not related to Ltd. Inc. places orders with Ltd. after receiving them from customers, and pays Ltd. only after receiving payment from the ultimate purchaser, to whom delivery is made by Ltd. Inc. is required by Ltd. to give warranties at least equivalent to those given by Ltd. Inc. has paid a variety of bills for Ltd. employees and officers when they have been in this country. Ltd. has an arrangement with a New York bank with respect to the payment of import duties. Inc.’s name is listed on Ltd.’s letterhead and Ltd. is listed in the World Aviation Directory as having an office in New York at Inc.’s address, Inc. being listed as Ltd.’s distributor. Separate books are maintained. \
In determining what the New York Court of Appeals would do with the facts of this case, see Arrowsmith v. United Press Int’l, 320 F.2d 219 (2d Cir. 1963), we have a recent decision of that court not available to the trial court, namely, the affirmance of the Appellate Division’s decision in TACA, 15 N.Y.2d 97, 256 N.Y.S.2d 129, 204 N.E.2d 329 (1965). That decision indicates New York’s steady movement towards holding, that in determining whether a corporation has engaged in activities in the state, it is immaterial whether these are conducted through a branch or through a subsidiary corporation, even though the latter’s formal independence has been scrupulously preserved. Of course, mere ownership by a foreign corporation of the stock of a subsidiary doing business in New York still does not subject the foreign corporation to the jurisdiction of New York, See Cannon Mfg. Co. v. Cudahy Packing Co., 267 U.S. 333, 45 S. Ct. 250, 69 L.Ed. 634 (1925).
Chief Judge Desmond in TACA considered that case “controlled” by Rabinowitz v. Kaiser-Frazer Corp., 198 Misc. 707, 96 N.Y.S.2d 642 (Sup.Ct.1950), aff’d, 278 App.Div. 584, 102 N.Y.S.2d 815 (2d Dep’t), aff’d, 302 N.Y. 892, 100 N.E.2d 177 (1951), a case no less similar to this case than it is to TACA. If there are differences they are merely reflections of the fact that more automobiles than airplanes are sold and that the sale of airplanes is rather episodic compared to the continuous flow of automobiles from England. Rolls-Royce showrooms are more commonly seen, one suspects, than showrooms of any, if not all, jet plane manufacturers — domestic and foreign.
While recognizing that in the area of jurisdiction the facts of each case determine the answer, we find the situation here more like that in State of Maryland for Use of Mitchell v. Capital Airlines, Inc., 199 F.Supp. 335 (S.D.N.Y. 1961), involving Vickers, than that in two earlier cases involving Ltd. itself, State St. Trust Co. v. British Overseas Airways Corp., 144 F.Supp. 241 (S.D.N. Y.1956), and Anderson v. British Overseas Airways Corp., 144 F.Supp. 543 (S. D.N.Y.1956). In those cases the events of the subsequent six years could not possibly have been known even on the fullest record, and the records in those cases were not nearly so revealing as the record in this case.
Ltd. being amenable to New York’s jurisdiction, there is a further question whether service was made on a proper “managing agent.” That Fossett or Inc. was not explicitly labelled “managing agent” by Ltd. nor “expressly authorized [by it] to accept service of process,” Cook v. Bostitch, Inc., 328 F. 2d 1, 3 (2d Cir. 1964), is not decisive. Here, as throughout the area of jurisdiction, the realities and not just the formalities must be dealt with. Thus, Judge Learned Hand stated that “whatever activities make the corporation ‘present,’ the agent in charge of those activities is the ‘managing agent’ pro hac vice.” Bomze v. Nardis Sportswear, Inc., 165 F.2d 33, 37 (2d Cir. 1948). See Lehn & Fink Prods. Co. v. Milner Prods. Co., 117 F.Supp. 320, 322 (S.D.N.Y.1953); State of Maryland for Use of Mitchell v. Capital Airlines, Inc., supra, 199 F.Supp. at 377; Rabinowitz v. Kaiser-Frazer Corp., supra, 198 Misc, at 713, 96 N.Y.S.2d at 646-647. Ltd’s timely answer indicates that it was not prejudiced by the actual method of service. Specification of the proper recipients of process is made to ensure that there will be actual notice to the responsible officers. That purpose has been served.
Reversed.
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_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.
PEPPER et al. v. TRUITT et al.
No. 3338.
Circuit Court of Appeals, Tenth Circuit.
Nov. 13, 1946.
Riley Strickland, of Amarillo, Tex. (Grester H. LaMar, of Guymon, Okl., on the brief), for appellants.
James S. Twyford, of Oklahoma City, Okl. (L. E. Tryon, of Guymon, Okl., and Solon W. Smith, of Oklahoma City, Okl., on the brief), for appellees.
Before PHILLIPS and MURRAH, Circuit Judges, and CHANDLER, District Judge.
MURRAH, Circuit Judge.
This suit was commenced on June 14, 1945, in the Western District of Oklahoma, by appellants, Dewey B. Pepper, Essie Ree Saxon and J. L. Saxon, as heirs and devi-sees of William D. Henderson, deceased, against W. J. Truitt and Lela Truitt, to set aside a conveyance of real estate executed by Henderson to appellees during his lifetime. The trial court sustained a motion of appellees to dismiss the complaint, and entered judgment for the defendants, on the grounds, first, that the cause of action, if any, was personal in Henderson and did not therefore survive his death; and second, the action is barred by the two or three year statute of limitation. Jurisdiction is based upon diversity of citizenship and requisite amount in controversy, both of which are admitted. The sole question is whether the pleadings, when construed most favorably to the pleader, state a cause of action upon which relief can be granted.
It was alleged in substance that Henderson had the utmost confidence in appellee, Lela Truitt, the former widow of his deceased brother, and on January 28, 1937, took up his abode with the Truitts at their home in Guymon, Oklahoma. That appel-lees orally agreed to “take care” of Henderson during his natural life, in consideration of which on February 2, 1937, Henderson executed his last will and testament in which the Truitts were designated his sole beneficiaries. That thereafter and on June 30, 1938, to better serve their purposes and intentions, Henderson, being weak in body and mind and "under their influence, appel-lees, by .reiterating their promise to take care of Henderson during his lifetime, persuaded and induced him to execute a warranty deed conveying certain described lands in Texas County, Oklahoma, to Lela Truitt. That the deceased did not intend to part with the title to said land unless the promises made by appellees to care for him during the balance of his life were kept. The complaint further alleged that after procuring possession of the land, the Tru-itts requested appellants to come to Guy-mon and take Henderson to Alabama, since they wére unable to care for him any longer; that pursuant to appellees’ request, appellants did come to Guymon in June 1940 and take Henderson to Alabama, and did thereafter have the sole responsibility for his care until his death on January 19, 1941. That after his removal to Alabama, and on October 25, 1940, Henderson executed a codicil to his will, specifically revoking his bequests to appellees, and in lieu thereof designated appellants his sole beneficiaries. It was alleged that by exacting the deed from Henderson, and by breaching their agreement to care for him, the Truitts obtained an “unconscionable advantage” of Henderson, and since they did not care for him hs agreed, the consideration for the deed wholly failed. The prayer was for cancellation of the deed, possession of the land, and an accounting of all rents and bonuses since June 1938.
In their answer, appellees alleged that the deceased intended to and did convey the land to Lela Truitt as a gift in 1938, and since that time they have been in open, notorious and undisturbed possession of same. They denied that they entered into any agreement, verbal or otherwise, to care for Henderson during his lifetime, or that they had exercised any undue influence over the deceased in any manner; and that the deed: was executed of his own free will and accord. As a special defense, they plead the-three and five year statutes of limitation of' Oklahoma as a bar to the prosecution of the suit.
Appellants then filed a supplemental complaint, alleging that the statute of limitations did not begin to run prior to the death of Henderson, because when appellants came to Guymon in June 1940 to take-Henderson back to Alabama, the appellees, promised them that if they would take care of Henderson until his death, they would, have a settlement of his affairs with the-heirs at that time. That in any event, the.obligation to take care of Henderson during his lifetime was the actual consideration of the deed, and could have been fully.met and performed by appellees any time-prior to his death by tendering or 'offering-, to take care of him, and thereby preventing any rescission of the contract during, Henderson’s lifetime. It furthen recited that appellees and Henderson returned to-Guymon on or about July 4, 1940, to see if a definite agreement could, be reached, concerning his property, and for all of these reasons, the statute of limitations would not begin to run until Henderson’s death on January 19, 1941, and in any event not until July 1940.
In support of its decision that the cause of action here asserted did not survive the death of Henderson, the trial court relied upon Berry v. Heiser, 271 Ill. 264, 111 N.E. 99, 101. In that case, a deed was given by parents to a child in consideration of future support. There was a breach of the condition of the deed, but the grantors took no steps during their lifetime to enforce the contract or cancel the deed. After their death, however, the devisees under the will of the husband, as last survivor, sued to set aside the deed and recover the land. The court recognized the right of the grantors to avoid the deed and reclaim the property, but held that such right “Was a mere personal right or privilege, and the bare right to file a bill in equity growing out of the perpetration of a fraud on a party is not assignable.”
The facts in our case and the Berry case are indistinguishably similar. But in the light of subsequent decisions, we doubt if that case is presently the law in Illinois or Oklahoma on the point of survivability. In the subsequent case of Warner v. Flack, 278 Ill. 303, 116 N.E. 197, 198, 2 A.L.R. 423, the court, speaking of the common law rule against the survivability of personal actions, stated, “the rule has no application to cases of equitable cognizance, for remedies administered in equity do not die with the person.” And quoting from another Illinois case (Rickman v. Meier, 213 Ill. 507, 72 N.E. 1121, 1124), the court said, “the law is that where a deed or other conveyance has been procured by undue influence, if it be not ratified by the party making it after the undue influence has ceased to operate, it may be set aside after his death at the suit of those who succeed to his rights.” The court drew a distinction between the assignment of a mere right of action for a tort, condemned by Justice Story in his Commentaries on Equity Jurisprudence, Section 1040g, and the assignment or inheritance of the whole estate to which the cause of action belongs.
It seems now to be the modern and more generally accepted rule that the equitable right of a grantor to seek the cancellation of a deed or other instrument obtained under fraud, undue influence, or failure of consideration, survives to his heirs, devisees or legal representatives. Moran v. Beson, 225 Mich. 144, 195 N.W. 688; Anderson v. Reed, 20 N.M. 202, 148 P. 502, L.R.A.1916B, 862; Fluharty v. Fluharty, 54 W.Va. 407, 46 S.E. 199; White v. Bailey, 65 W.Va. 573, 64 S.E. 1019, 23 L.R.A.,N.S. 232; Annot. 2 A.L.R. 431; 110 A.L.R. 849, 856; 112 A.L.R. 670, 720.
Oklahoma, where we must look for our law, embraces' the general rule of survivability. Under similar facts, the Oklahoma court has recently held that where one conveys laud to another in consideration of the latter’s promise to support the former for his life, his heirs may enforce the remedy of re-entry for breach of the promise, provided it is shown that the breach existed at the time of the grantor’s death. Buckles v. Smith, 195 Okl. 272, 156 P.2d 1019. See also Sims v. Russworm, 192 Okl. 330, 136 P.2d 942; Drake v. High, 69 Okl. 288, 172 P. 53. We conclude that the cause of action herein asserted did survive Henderson’s death, and that the appellants, as heirs and devisees, had standing to maintain this action.
In holding that the asserted cause of action was barred by cither the two or three year statute of limitation, Title 12 O.S.A. § 95(2) (3), the trial court proceeded upon the theory that the action was upon an oral contract founded in fraud; that if based upon fraud, the two year statute applied, and the cause is barred because commenced more than two years after the discovery of the fraud on October 25, 1940, when Henderson executed the codicil to his will. If the three year statute of limitation applies as an action upon an oral contract for failure of consideration, the court was of the opinion that the breach occurred some time after Henderson left the Truitt home in June, and prior to the execution of the codicil on October 25, 1940; that the statute began to run from the time Henderson could have rightfully maintained an action for its breach, which was more than three years before the commencement of this action.
The appellants would have us treat the' cause as one for the recovery of real property and apply the fifteen year statute of limitations under Section 93(4), Title 12 O. S.A., but argue that in any event, the contract sued upon is a continuing agreement to the death of the grantor, and the statute would not therefore begin to run until Henderson’s death on January 19, 1941. It is said that this action is patterned upon the Oklahoma case of Campbell v. Dick, 71 Okl. 186, 176 P. 520. That case does hold that where the primary purpose of an action is the recovery of possession of land, the fifteen year statute of limitations applies, although the incidental grounds of recovery may be fraud in the conveyance. But, subsequent Oklahoma decisions have expressly repudiated Campbell v. Dick, supra, and have unequivocally established the rule that an equitable action for the re-investment of the legal title to real property is not governed by the fifteen year statute of limitations. Dillon v. Helm, 196 Okl. 140, 163 P.2d 539; Mansfield, Brunson, Kemp, & Ahrens v. King, 160 Okl. 243, 16 P.2d 87; Tomlin v. Roberts, 126 Okl. 165, 258 P. 1041; Warner v. Coleman, 107 Okl. 292, 231 P. 1053.
Since this is an equitable action, the defense of laches necessarily applies, and the statute of limitations has relevancy by analogy only. A court of equity is not bound by the statute of limitations. It may grant relief, although an action at law would be barred by the statute, or it may withhold relief though the statute of limitations would not bar the action. But, in the absence of extraordinary circumstances, equity will usually grant or withhold relief in analogy to the statute of limitations relating to actions at law of like character. Wilhelm v. Pfinning, Okl.Sup., 129 P.2d 580; Dunavant v. Evans, Okl.Sup., 127 P.2d 190; Thompson v. Rosehill Burial Park, 177 Okl. 422, 60 P.2d 756; Shell v. Strong, 10 Cir., 151 F.2d 909.
Whether the two, three or five year statute of limitations applies by analogy depends of course upon the nature of the action. Although appellants plead facts, which if true, amount to undue influence or “unconscionable advantage”, they assiduously avoid any mention of the word fraud, and in their briefs deny any intention to rely upon it. This is not an action upon an oral contract under Section 95(2), Title 12 O.S.A., or for damages for its breach. It is an equitable action for cancellation of the deed and, possession of the property, based upon failure of consideration. The oral contract is merely evidence of the consideration, and its alleged breach is proof of its failure. Th.e deed is unconditional upon its face, and apparently conveys an indefeasible title. If, however, the consideration wholly failed by a breach of the oral promise, for which the deed was given, equity treats the action for cancellation as one upon a condition subsequent. Moffatt v. Moffatt, 195 Okl. 498, 159 P.2d 531; Annot. 76 A.L.R. 742. It is thus clear that since neither the two, three nor fifteen year statute of limitations applies, the action is one for relief “not hereinbefore provided for” and the five year statute is analogous. Section 95(6), O.S.A., Title 12.
Appellants attempt to toll the statute by arguing that they were lulled by appellees’ alleged promise to have a settlement of Henderson’s affairs upon his death, and that therefore the statute did not start to run in any event until Henderson’s death, January 19, 1941. But at the time of the alleged promise, any existing cause of action was in Henderson, and appellants did not succeed thereto until his death. Meanwhile, the statute began to run against Henderson when he could have first maintained the action, and it continued to run against him throughout his lifetime, and thereafter against his heirs until the action was barred by laches. Griffin v. Hannon, 185 Okl. 433, 93 P.2d 1078.
Appellants attempt also to show that no breach existed until the death of Henderson, because appellees always had the privilege of performing the contract and thus avoiding a breach at any time before Henderson’s death. If this be true, the cause of action did not survive for, as we have seen, its survivability depends upon whether it existed at the time of the grantor’s death. See Buckles v. Smith, supra. We think, however, that Henderson’s involuntary departure from the Tru-itt home clearly constituted a breach of the agreement, and that Henderson’s execution of a codicil to his will was an election to rescind. Cf. Buckles v. Smith, supra. We hold that the alleged oral agreement was breached, and the asserted cause of action accrued in June 1940, when Henderson was taken from the Truitt home in Guymon. This suit was brought on June 14, 1945, and the pleadings do not show upon their face the exact date of Henderson’s departure in June 1940. If the breach occurred before the 14th of June, more than five years had elapsed when this suit was commenced. We have recently said that “Under ordinary circumstances, a suit in equity will not be stayed for laches before, and will be stayed after, the time fixed by the analogous statute, but if unusual conditions or extraordinary circumstances make it inequitable to allow the prosecution of a suit after a briefer, or to forbid its maintenance after a longer, period than that fixed by the analogous statute, a court of equity will not be bound by the statute, but will determine the extraordinary case in accordance with the equities which condition it. When a suit is brought within the time fixed by the analogous statute, the burden is on the defendant to show, either from the face of the complaint or by his answer, that extraordinary circumstances exist which require the application of the doctrine of laches. On the other hand, when the suit is brought after the statutory time has elapsed, the burden is on the complainant to aver and prove circumstances making it inequitable to apply lach-es to his case.” Shell v. Strong, supra [151 F.2d 911]. What we said there is singularly apposite here.
A pre-trial order, certified to us after argument, shows that Henderson left the Truitt home on June 12, 1940. The appellants now, however, deny the correctness of this date, and seek to be relieved of its effect. When the pre-trial order was entered, the date of Henderson’s departure did not appear to be a crucial fact in the lawsuit, and we are not disposed to hold the appellants to this date in the circumstances. Pre-trial agreements are the product of professional cooperation. They are generally arrived at voluntarily in the interest of time and economy, and in order to dispense with the necessity of formal proof of matters about which there is no substantial dispute. Their utility as an implement in the administration of justice necessarily depends upon their flexibility. If they are to serve their useful purpose, they must not be used to work a hardship or an injustice on those who have freely co-operated in furtherance of juridical efficiency. A lawyer should not be bound by an admission of a fact in a pre-trial agreement which, at that time, appeared to be inconsequential, but which later became crucial and doubtful.
The case is reversed and remanded in order that the trial court may ascertain the correct date of Henderson’s departure from the Truitt home, and proceed according to the views herein expressed.
Question: What is the total number of respondents in the case? 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.
TERMINAL R. ASS’N OF ST. LOUIS v. HOWELL.
No. 13555.
Circuit Court of Appeals, Eighth Circuit.
Jan. 9, 1948.
See also 155 F.2d 807.
Arnot L. Sheppard, of St. Louis, Mo. (George P. Mueller, of St. Louis, Mo., on the brief), for appellant.
Roberts P. Elam, of St. Louis, Mo. (Harvey B. Cox, of St. Louis, Mo., on the brief), for appellee.
'Before GARDNER, THOMAS, and JOHNSEN, Circuit Judges.
GARDNER, Circuit Judge.
This is an appeal from a judgment against appellant in an action brought by appellee to recover damages under the Federal Employers’ Liability Act, 45 U.S. C.A. § 51 et seq. We shall refer to the parties as they were designated in the trial court. ■ It is alleged in plaintiff’s complaint that on July 2, 1944, while he was in the performance of his duty as a car worker for defendant, assisting in the closing of a car door on a car of defendant in its yards in East St. Louis, Illinois, the car door “was caused to and did fall from the car and did strike, knock down, and seriously injure the plaintiff because and as a result of the negligence, carelessness and unlawful conduct of defendant.”
Viewing the evidence in a light most favorable to plaintiff, the jury might reasonably have found substantially the following facts: That at the time of receiving his injuries plaintiff was 43 years of age and had been in the employ of defendant as a car repairman for more than two years and prior thereto had been similarly employed by another railroad company for more than fifteen years. On the date in question he was engaged in repair work which included the closing oi box car doors. He was working with and under the supervision of a Mr. DeWolf, who is variously referred to in the record as gang leader, supervisor, foreman or boss. Just prior to the incident resulting in plaintiff’s injuries these two. men had worked on two box cars, closing open doors on both of them. Mr. DeWolf was in charge of the work. He examined the bad order cards on the cars, and when they came to the car door involved in this action DeWolf preceded plaintiff, looked at the bad order card on the car and determined that it said either, “Car door off track,” or “Hanger off track.” Neither of these expressions indicated that there was any special-danger of the door falling from the car during the operation of closing the door. Pursuant to DeWolf’s direction, plaintiff brought a chain jack to be used in attempting to close the door. The door was about half open when plaintiff and DeWolf attached the chain jack which is a device by which tension could be applied to pull the door closed. Plaintiff proceeded to operate the chain jack which applied tension, and pulled the car door part way closed, but as the door had moved about a foot and a half so that it was within 10 or 12 inches from being closed, it stuck at the top. Considerable tension was then put upon it by means of the. chain jack but it remained stuck. DeWolf then got up on top of the car for the avowed purpose of seeing what was holding the doot back, that being his duty. After looking down from the top of the car toward the door hanging devices, and being within 6 inches of these devices and in position to see them, he called for a small sledge' hammer with which he hit the top or end of the door, causing it to move, but further efforts to close it by the chain jack failed. DeWolf hammered on the door to loosen it and plaintiff lightened up the tension on the chain jack. This was repeated a number of times until the door had been moved up to where the bottom of it was against the so-called spark angle, and DeWolf then descended from the top of the car to the ground where plaintiff was working. At that time the door was within an inch of being completely closed and plaintiff was holding light tension on the door with the chain jack. DeWolf then got a small hand pinch bar with which to pry the door edge into the spark angle, and either while he was in the act of getting the pinch bar or after he had gotten it and pried the door, the car door fell from the car and struck plaintiff causing the injuries for which this action was brought. The car door was 6 feet by 6 feet, made of wood and bound with iron, and weighed between 250 and 300 pounds. On the top of the door were two hangers bolted to the door. At the top of these hangers were small . metal rollers which rested upon and moved upon a metal track bolted to the top side of the car near the roof. The hangers were such as to conceal the rollers from view of a person on the ground outside the car but they could be seen by one who examined them from the top of the car. The door was normally prevented from coming off the track by metal flanges called guides, being a part of the hanger devices. These guides projected inward and upward behind the door and the metal track upon which the rollers-operated. Attached to the side of the car just below the bottom of the door were pieces of metal called shoes, designed to prevent the bottom of the car door from coming out too far from the side of the car but which did not carry any of the weight of the door. The cause of the door falling from the car was that the small rollers which rolled along the car door track were so badly worn that they permitted the metal flanges or guides to come down below and disengage from the track so that they no longer held the door on the track but permitted it to fall outwardly. These conditions could not be observed by a person standing on the ground but could be observed by a person who went up on the top of the car and looked at the hangers from that position.
Plaintiff did not at any time prior to receiving his injuries observe anything defective about the hanging devices at the top of the car door and did not anticipate any danger of the car door falling. He received no warning from DeWolf or otherwise, that the car door was in such condition that it was likely to fall, it was not the duty of the plaintiff but it was the duty of DeWolf to go upon the top of the car to inspect the hanger and other parts of the mechanism by which the door was open and closed. While participating in the work of attempting to close the door plaintiff performed his duty and conducted himself properly pursuant to DeWolf’s instructions and in the usual and customary manner. The car in question had been sent to the repair track by one of defendant’s car inspectors who had notice that the rear hanger of the car door was off its track and for that reason he placed a bad order card on the door, marking the card to show, “Side Door Off Track.” The inspector did not inspect the car, nor did he know that the rollers in the hanger were so worn as to let the car door down to a point where the metal guide behind the door track could disengage and permit the door to fall outward, and he did not put any notice on the bad order card showing that the door was in a dangerous condition.
At the close of all the testimony defendant interposed a motion for a directed verdict on substantially the following .grounds: (1) That plaintiff’s evidence fails to show any negligence on the part of defendant which was the proximate cause of his injuries; (2) the rule of res ipsa loquitur is not applicable because plaintiff has not shown any specific negligence on the part of defendant; (3) that -under the circumstances shown no duty rests upon the defendant to exercise ordinary care to furnish plaintiff with a reasonably safe car upon which to do the work he was engaged in doing at the time of receiving his injuries. This motion was overruled and the cause submitted to the jury on instructions to which defendant saved certain exceptions. The jury returned a verdict for $20,000 in favor of plaintiff and from the judgment entered thereon defendant prosecutes this appeal seeking reversal on substantially the following grounds: (1) The court erred in denying defendant’s motion for a directed verdict; (2) error in certain portions of the charge to the jury; (3) plaintiff suffered no physical injury and his testimony relative thereto was incredible.
In considering 'the question of the sufficiency of the evidence to make an issue for the jury the evidence must be viewed in a light most favorable to plaintiff and our prerogative is limited to determining whether when so considered there is substantial evidence to sustain the verdict. As said by us in tbe recent case of Chicago & N. W. Ry. Co. v. Green, 164 F.2d 55, 59:
“In connection with what we have said, there must be kept in mind the emphasis in the recent decisions of the Supreme Court that the scope of jury inference in cases under the Federal Employers’ Liability Act must be liberally and not narrowly or stultifyingly viewed.”
Under the Federal Employers’-Liability Act as it now stands there are no affirmative common law defenses available to the defendant and the only question is whether the injury complained of resulted in whole or in part from the negligence of defendant. Bailey v. Central Vermont Ry., Inc., 319 U.S. 350, 63 S.Ct. 1062, 87 L.Ed. 1444; Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 63 S.Ct. 444, 87 L.Ed. 610, 143 A.L.R. 967 ; 45 U.S.C.A. §§ 51 and 54.
It is contended by defendant that the work in which plaintiff was engaged was inherently of such a character that he assumed the risk of the danger as a hazard of his occupation. It is argued that the car door was out of repair and consequently the place in which plaintiff was required to work was unsafe; that it was plaintiff’s duty to make it safe, and that under such conditions it could not logically be held that the defendant was negligent in not furnishing plaintiff with a safe place in which to work. There is no absolute duty on the part of the employer to furnish a safe place in which his employee is required to work but he is required to exercise ordinary care to see that the employee is furnished with such a place. In other words, the employer is not an insurer of the safety of the place to work nor of any of the instrumentalities or tools with which the employee is required to work. The defense of assumption of risk has been specifically negatived by the statute and the only question is whether under all the facts and surrounding circumstances, including the nature of the work in which plaintiff was engaged, defendant exercised such reasonable care. The fact that plaintiff’s work was dangerous did not excuse defendant from exercising the care that a reasonably prudent person would exercise under all the circumstances. The duty of exercising such care becomes more “imperative” as the risk .increases. As said by the Supreme Court in Patton v. Texas & P. R. Co., 179 U.S. 658, 664, 21 S.Ct. 275, 278, 45 L.Ed. 361:
“Reasonable care becomes, then, a demand of higher supremacy; and yet, in all cases it is a question of the reasonableness of the care; reasonableness depending Upon the • danger attending the place or the machinery.”
Under the evidence we think the jury could reasonably have found that plaintiff’s foreman, DeWolf, after he had climbed to the top of the car in question and made his examination of the hangers, rollers and guides, knew or by the exercise of ordinary care should have known their condition and the danger in attempting to close the door as he was directing plaintiff to do, yet he failed to impart that knowledge to plaintiff or to warn him of the danger of the door falling. Even though the work may have been inherently dangerous, yet the bad condition of these rollers and hanging devices enhanced that normal danger, and the jury might well have found that in the exercise of ordinary care it was the duty of defendant on discovering that danger, which so far as plaintiff was concerned was latent and unknown, to warn him thereof. This negligence rendered the place where plaintiff was employed more dangerous than it would have been had plaintiff been warned, and plaintiff's injuries may well be said to have resulted in whole or in part from such negligence. In Labatt on Master and Servant, 2d Ed., Vol. 3, Sec. 924, it is said:
“In all cases the master must exercise ordinary care to render the place of work reasonably safe for his servants. Where however, * * * the work itself consists of rendering a dangerous place safe, the exercise of such ordinary care may, and frequently does, fail to give to the place of work the same amount of safety that the same degree of care would give to a place of work the conditions surrounding which were permanent. The master’s duty is not altered, but the results of the exercise of that duty may differ very materially. The mere fact that there are dangers connected with all work of the general character of that here discussed, which ordinary care on the part of the master can not remove, does not excuse him from liability for injuries due solely to dangers which the exercise of ordinary care would have removed.”
See, also: American Window Glass Co. v. Noe, 7 Cir., 158 F. 777; Corn Products Refining Co. v. King, 7 Cir., 168 F. 892; Carlson v. Oregon Short Line & U. N. Ry. Co., 21 Ore. 450, 28 P. 497; Fleming v. What Cheer Mining Co., 194 Mo.App. 206, 186 S.W. 1115; Corby v. Missouri & Kansas Tel. Co., 231 Mo. 417, 132 S.W. 712; Western Union Tel. Co. v. Hickman, 4 Cir., 248 F. 899; Jupollo Public Service Co. v. Grant, 4 Cir., 42 F.2d 18.
We conclude that there was no error in denying defendant’s motion for a directed verdict.
The court’s instructions numbered IV and V are challenged by defendant. The instructions must, of course, be considered as a whole and when so considered these two instructions are, we think, in accord with what we have already stated to be the applicable law and we shall therefore give them no further attention.
In the first paragraph" of its instructions the court after stating that the action was brought by plaintiff to recover damages under the provisions of the Federal Employers’ Liability Act, quoted from the Act as follows:
“Every common carrier by railroad while engaging in commerce between any of the several States * * * shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce * * * for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.”
This portion of the instruction was objected to on the ground that it was too general, misleading and confusing and that it did not limit the consideration of the jury to the facts in this case. If this were the only instruction given there might be some basis for this contention, but, as already observed, the instructions must be considered as a whole and not as independent parts. The office of the court’s instructions is to apprize the jury of the questions involved and the rules of law applicable thereto. One of the primary duties of the court is to expound the law to the jury and this is done by means of instructions. The basic law governing this case is that which the court in this instruction quoted to the jury. Even in criminal cases it is held as a general rule that where the law governing a case is expressed in a statute the court in its charge should use the language of the statute. A similar objection was urged by appellant in Norfolk & W. R. Co. v. Trautwein, 6 Cir., 111 F.2d 923, 925. In that case the action was brought under the Federal Employers’ Liability Act and the court in its instructions read the abov.e quoted statute to the jury. In disposing of the question the court said:
“It will be noted that the court did not predicate a charge of negligence upon any other features than those ‘charged in the petition.’ We do not think the jury could have been mislead as to the issues.”
It would be strange indeed if it could be said to be error to lay down the law in the exact language of the statute upon which the action is ba'sed. We think that the court committed no prejudicial error in its charge to the jury. Defendant requested certain instructions which were refused but the action of the court in so doing is not presented by any appropriate assignment or point for review.
It is finally urged that plaintiff’s evidence as to his physical condition is so wholly insubstantial and incredible as to amount to a fraud upon the court. This is not argued in connection with the claim that the court erred in denying defendant’s motion for a directed verdict, nor was this ground embodied in the motion for a directed verdict. It is not the prerogative of this court to weigh the evidence nor to pass upon the credibility of witnesses. The argument is one which' might properly have been and probably was presented to the trial court on motion for a new trial. It appears from the record, however, that there was competent evidence tending to show that as a result of the accident here involved plaintiff sustained a fracture of the first lumbar vertebra; that he was confined in a hospital for some six weeks and was under a doctor’s care for ten months after being discharged from the hospital; that he was encased in a plaster body cast extending from his arm pits, for about eight weeks, and was totally disabled from twelve to eighteen months. One of defendant’s medical witnesses testified that the man was seriously injured. There was also evidence that he endured great physical pain and suffering. The contention of defendant in this regard is, we think, wholly without merit.
The judgment appealed from is affirmed.
Question: What is the nature of the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_usc1sect
|
1346
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 28. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
William J. BOADLE, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
No. 26706.
United States Court of Appeals, Ninth Circuit.
Jan. 22, 1973.
L. R. Bretz, Great Falls, Mont., for plaintiff-appellant.
Otis L. Packwood, U. S. Atty., William Brolin, Asst. U. S. Atty., Butte, Mont., for defendant-appellee.
Before HAMLIN, DUNIWAY and GOODWIN, Circuit Judges.
HAMLIN, Circuit Judge:
William Boadle appeals from a judgment of the United States District Court for the District of Montana, sitting without jury, denying him all recovery in an action brought against the United States pursuant to the Federal Tort Claims Act, 28 U.S.C. § 1346.
Appellant Boadle, then a 60-year old Montana rancher, sustained personal injury on March 24, 1967, when a bulldozer he was operating slid off Lick Creek Road, a snow-covered mountain road in the Lewis and Clark National Forest, Cascade County, Montana. Lick Creek Road was owned by and in the possession of appellee United States at the time of the accident.
Boadle had assented to a request by a cabin owner residing in the National Forest to clear a mountain road of snow so as to permit access to the cabin site. The cabin owner’s property was adjacent to the road. Boadle entered the road through the entry of the National Forest with a T-6 International caterpillar tractor equipped with a dozer blade. He had plowed the road for just over a mile when he hit a sheet of ice beneath the snow and slid sideways off the road. The tractor rolled down a 45-degree slope and fell on top of Boadle, and he received very severe injuries as a result thereof.
In the subsequent Tort Claims action, judgment was rendered in favor of the United States. On appeal, Boadle’s two major contentions are that (a) he was erroneously labeled a licensee when in fact he was an invitee, and (b) even given his licensee status, there existed a duty on the part of the United States to warn him of the hazardous conditions of the road in question. We affirm.
The District Court concluded that Boa-dle entered the National Forest only as a licensee, finding that he had forfeited a claim to invitee status by exceeding the scope of any conceivable invitation in at least two respects. In making this determination the District Court relied on the specific nature of both the road itself and Boadle’s activities thereon.
Lick Creek Road, the site of the accident, is one of a network of roadways developed by the United States Forest Service in the Lewis and Clark National Forest, an essentially undeveloped hinterland. Testimony at trial by resident Forest Rangers indicated that the road is maintained principally for Forest Service purposes, although it is used by the general public. However, the road is closed by snow during portions of the year, and the District Court found that the Forest Service had never kept it open during the winter months. We agree with the District Court’s conclusion that Lick Creek Road’s use was one regulated by nature. Any invitation extended by the United States to the general public to travel thereon was premised upon the assumption that the road’s physical condition would not present the hazards of winter passage. Boadle’s actions in attempting to maneuver upon the road during the winter, at a time when it was covered with snow, were therefore inconsistent with the United States’ invitation, and he was properly denied invitee status by the District Court.
Furthermore, we also agree with the District Court’s conclusion that any invitation to use the road was limited to travelers thereon. It did not extend to independent contractors engaged in maintenance work with heavy equipment.
Secondly, Boadle argues that even assuming his licensee status, the District Court erred in concluding that the United States owed him no duty to warn of the road’s hazardous icy conditions. We disagree. The District Court found that the United States did not know of the condition which led to appellant’s accident, and therefore a duty to warn thereof did not arise. Maxwell v. Maxwell, 140 Mont. 59, 367 P.2d 308 (1962).
The District Court’s findings of fact further included the observation that “[i]t is not uncommon in Montana in the winter for snow to cover layers of ice.” Boadle was certainly no stranger to the dangers created by Montana’s winter elements, having lived in that state his entire life. He was therefore legally charged with the knowledge that operating a tractor upon a snow-covered mountain road presented certain dangers, including the possibility that ice might well lie beneath the snow. Consequently, the United States owed him no duty of warning of this possible hazard.
We find no merit to Boadle’s final contention that certain administrative regulations promulgated by the United States Forest Service created an independent duty upon the United States to warn him of the road’s hazardous condition.
Judgment affirmed.
. 28 U.S.C. § 1346 provides in pertinent part:
“(b) . . . the district courts shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages . for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the. scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.”
. Under Montana law, to a licensee the landowner owes the duty to refrain from acts of willful and wanton negligence, State ex rel. Burlington North., Inc. v. District Court, Mont., 496 P.2d 1152 (1972) ; Nichols v. Consolidated Dairies, 125 Mont. 460, 239 P.2d 740 (1952), unless the landowner knows of the hidden danger, Maxwell v. Maxwell, 140 Mont. 59, 367 P.2d 308 (1962), or there is active as distinguished from passive negligence, Le Compte v. Wardell, 134 Mont. 490, 333 P.2d 1028 (1959).
To an invitee, the Montana landowner owes the duty to maintain the premises in a reasonably safe condition, or to warn him of any hidden danger. Dean v. First National Bank of Great Falls, 152 Mont. 474, 452 P.2d 402 (1969). Suhr v. Sears Roebuck and Co., 152 Mont. 344, 450 P.2d 87 (1969).
. It is well established that an invitee may forfeit his status as such should he go beyond the scope of his invitation. E. g., West v. Tan, 322 F.2d 924 (9th Cir. 1963).
The Restatement of Torts, 2nd (1965), provides as follows:
Ҥ 332 Invitee Defined
(2) A public invitee is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public.
“Comment on Subsection (2) :
d. Land held open to the public. Where land is held open to the public, there is an invitation to the public to enter for the purpose for which it is held open. Any member of the public who enters for that purpose is an invitee. Anyone who enters for another purpose is not an invitee unless (exception inapplicable).”
. See Luebeck v. Safeway Stores, Inc., 152 Mont. 88, 446 P.2d 921 (1968), where the Montana Supreme Court, in an action brought against a store owner by a business invitee who had slipped and fallen on defendant’s snow covered parking lot, stated that " * * * where danger created by the elements such as the forming of ice and the falling of snow are universally known * * *, there is no liability.” 446 P.2d at 924. But see, Dawson v. Payless for Drags, Inc., 248 Or. 334, 433 P.2d 1019 (1967), specifically rejected in Luebeck.
Question: What is the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 28? Answer with a number.
Answer:
|
songer_appel2_1_3
|
J
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case.
LAUNDRY, DRY CLEANING AND DYE HOUSE WORKERS INTERNATIONAL UNION, LOCAL 93, OF SPRINGFIELD, MISSOURI, Appellee, v. Robert M. MAHONEY et al., Appellants.
No. 72-1731.
United States Court of Appeals, Eighth Circuit.
Submitted Nov. 12, 1973.
Decided Jan. 22, 1974.
Rehearing and Rehearing En Banc Denied Feb. 13, 1974.
Donald W. Jones, Springfield, Mo., for appellants.
Benjamin J. Francka, Springfield, Mo., for appellee.
Before MEHAFFY, Chief Judge, and GIBSON, LAY, HEANEY, BRIGHT, ROSS, STEPHENSON and WEBSTER, Circuit Judges, en banc.
HEANEY, Circuit Judge,
with whom LAY, BRIGHT and WEBSTER, Circuit Judges, join.
This matter comes before the Court en banc on a petition for rehearing. The sole issue is whether the trial court erred in requiring the parties to a collective bargaining agreement to submit a mid-contract wage dispute to binding arbitration.
On August 8, 1968, the Union entered into a collective bargaining agreement with the then owner of the business. Article XX of the agreement provides:
Section 1. This agreement shall remain in full force and effect until August 8, 1973, and from year to year thereafter, unless sixty (60) days prior to August 8, 1973, or any year thereafter, the Union notifies the Employer or the Employer notifies the Union of its desire to terminate or modify this Agreement. This notice must be written.
Section 2. Either the Employer or the Union shall have the right as of August 8, 1971, to reopen for negotiation on the subject of wages and seniority only, upon either party giving written notice to the other at least sixty (60) days prior to such reopening date. In the absence of such notice, the existing conditions shall continue to remain in effect until the expiration date of the Agreement.
Thereafter, most of the assets of the business were sold to the Bormon Investment Company, and that firm became obligated to abide by the terms of the agreement as a successor employer.
The Union and the Employer exercised their option to reopen the contract on wages and seniority by giving a timely notice. The parties were unable to reach an agreement on either issue. The Union demanded that the unresolved issues be submitted to arbitration. The Employer refused on the grounds that it was not obligated to arbitrate these issues. The Union then brought an action seeking to require the Employer to submit the dispute to arbitration.
The agreement generally establishes wage rates and working conditions. It specifically provides:
ARTICLE I.
Purpose
Section 1. It is the intent and purpose of the parties hereto, to set forth herein their basic agreement covering wages, hours of work, and conditions of employment to be observed between the parties hereto, and to provide procedures for the prompt, and equitable adjustment of all grievances and disputes arising between the Employer and the Union or any employee or employees covered by this Agreement.
* * * * * *
ARTICLE XIII.
No Strike or Lockout
Section 1. There shall be no strikes, stoppages, slowdowns, or concerted activity interrupting or interfering with production, or lockouts, for any reason whatsoever during the life of this Agreement.
It also contains a grievance and arbitration clause which reads as follows:
ARTICLE XIV.
Grievance and Arbitration
Section 1. It is hereby agreed that the Union may have one (1) duly accredited representative to be known as the “Steward” in each plant to be selected by the Union. It shall be his or her duty to receive complaints and to present them to the management. * * *
Section 2. In order to determine the existence and/or validity of a grievance, the Steward shall notify the Plant Manager or his designated representative of the charge by an employee, and as soon as practicable, the Steward and the Employer representative shall discuss the matter with the view of resolving the issue if possible. * * *
Section 3. If the grievance is not settled in the manner set forth in Section 2 within two (2) working days after the Steward has first discussed it with the Plant Manager, it shall be reduced to writing and considered between the Business Agent and Company representatives.
Section U. If not settled within five (5) working days as set forth in Section 3, the matter shall be referred to arbitration.
Section 5. Each party shall select an arbitrator [.] * * '* Should there be no agreement between the two arbitrators as to the third arbitrator, application shall be made to the Federal Mediation and Conciliation Service in Washington, D. C., for a panel of five (5) nominees. The parties shall alternate in striking two names each and the remaining shall be the impartial arbitrator. The arbitrator shall not have the power to add to, subtract from, or change the terms of the contract. The decision of a majority of the panel shall be final and binding. * * *
* * * * * *
ARTICLE XVIII.
Savings Clause
Section 1. If any law now existing or hereinafter enacted, or any proclamation, regulation, or edict of any state or national agency shall invalidate any portion of this Agreement, the entire Agreement shall not be invalidated, and either party hereto, upon notice to the other, may reopen for negotiation the invalidated portion, and if agreement thereon cannot be reached, within thirty (30) days, either party may submit the matter to arbitration as herein provided.
The matter was submitted to the trial court on cross-motions for summary judgment. The court initially determined that the question of arbitrability was for it to decide. It then held, on the authority of the United Steel Workers v. Warrior and Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960), that the dispute was arbitrable because no forceful evidence of an intent or purpose to exclude the dispute from arbitration was evidenced.
The Employer argues on appeal: (1) that they are under no obligation to arbitrate any wage and seniority issues; (2) that their only obligation under the agreement is to negotiate on the two issues, and they have fulfilled that obligation; (3) that arbitration is only available to resolve employee grievances, and then only after such grievances have been processed in accordance with Sections 1, 2, 3 and 4 of Article XIV of the agreement; and (4) that, here, no grievance exists, and that the dispute between the Employer and the Union was not processed in accordance with the above sections.
The trial court correctly held that the issue of arbitrability was one for it to decide. John Wiley & Sons v. Livingston, 376 U.S. 543, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964); Drake Bakeries v. Local 50, 370 U.S. 254, 82 S.Ct. 1346, 8 L.Ed.2d 474 (1962).
The trial court also properly decided that the midterm contract dispute between the Employer and the Union over wages and seniority is an arbitrable one.
Warrior teaches:
The Congress, however, has by § 301 of the Labor Management Relations Act, assigned the courts the duty of determining whether the reluctant party has breached his promise to arbitrate. For arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit. Yet, to be consistent with congressional policy in favor of settlement of disputes by the parties through the machinery of arbitration, the judicial inquiry under § 301 must be strictly confined to the question whether the reluctant party did agree to arbitrate the grievance or agreed to give the arbitrator power to make the award he made. An order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible to an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage.
* * -X- * -X- -X-
* * * In the absence of any express provision excluding a particular grievance from arbitration, we think only the most forceful evidence of a purpose to exclude the claim from arbitration can prevail, particularly where, as here, the exclusion clause is vague and the arbitration clause quite broad. Since any attempt by a court to infer such a purpose necessarily comprehends the merits, the court should view with suspicion an attempt to persuade it to become entangled in the construction of the substantive provisions of a labor agreement, even through the back door of interpreting the arbitration clause, when the alternative is to utilize the services of an arbitrator.
United Steel Workers v. Warrior and Gulf Navigation Co., 363 U.S. supra at 582, 584-585, 80 S.Ct. 1347, 1353, 1355. Accord, Local Union No. 4, IBEW, AFL-CIO v. Radio Thirteen-Eighty, Inc., 469 F.2d 610 (8th Cir. 1972) ; Builders Ass’n of Kansas City v. Greater Kansas City Lab. D.C., 326 F.2d 867 (8th Cir.), cert. denied, 377 U.S. 917, 84 S.Ct. 1182, 12 L.Ed.2d 186 (1964).
We are convinced, as was the trial court, that it cannot be said with positive assurance that the arbitration clause is not susceptible to an interpretation that covers the asserted dispute. Although the “Grievance and Arbitration” clause speaks of employee grievances, the “purpose” clause of the agreement asserts that the agreement is intended to provide “procedures for the * * * equitable adjustment of all grievances and disputes arising between the Employer and the Union * * * ”. If the contract is to be read as a whole, as it must, Montana-Dakota Utilities Co. v. N. L. R. B., 455 F.2d 1088 (8th Cir. 1972), effect should be given to this language. The savings clause speaks of submitting matters other than grievances to “arbitration as herein provided,” thus negating an intent to limit the arbitration clause in the manner suggested by the appellant. Moreover, the collective bargaining agreement includes an absolute “no strike, no lockout” clause. This inclusion lends support to the view that the collective bargaining agreement was intended to completely effectuate the federal policy of promoting industrial stabilization through collective bargaining.
In summary, we not only fail to find forceful evidence of a purpose to exclude the mid-contract wage dispute from arbitration, but we find evidence of a contrary purpose. The Warrior rule is thus triggered.
Concern has been expressed that the effect of this opinion will be to make midterm wage disputes in multi-year contracts subject to arbitration whenever a collective bargaining agreement contains an arbitration and a no-strike clause. We find no cause for such concern. The parties to a collective bargaining agreement can, by plain language, exclude such dispute from arbitration. They can lift the “no strike, no lockout” pledge in such circumstances, see, United Steel Workers v. Warrior and Gulf Navigation Co., supra, n. 5, 579, 80 S.Ct. 1347, or permit the pledge to remain in effect and require the dispute to be resolved by bargaining or not at all. All that is necessary is that the parties make their intent to exclude arbitration clear. They have not done so here.
We find no merit to the Employer’s contention that the judgment against three minor defendants should be set aside because it was imposed on them without the prior appointment of a guardian ad litem. The first exception to Rule 17(b), 28 U.S.C., permits a partnership to be sued in its common name for the purpose of enforcing against it a substantive right existing under the laws of the United States. The right to arbitrate is such a right.
Moreover, the trial court properly found that the minors’ interests were adequately protected by the presence of their parents as defendants. See, Westcott v. United States Fidelity and Guaranty Company, 158 F.2d 20 (4th Cir. 1946); Rutland, Administrator v. Sikes, et al., 203 F.Supp. 276 (E.D.S.C.), aff’d, 311 F.2d 538 (4th Cir. 1962), cert. denied, 374 U.S. 830, 83 S.Ct. 1871, 10 L.Ed.2d 1053 (1963).
The judgment below is affirmed by an equally divided court.
. Initially, a divided panel affirmed the District Court holding that the parties were required to submit the dispute to binding arbitration. Laundry, Dry Cleaning and Dye House Workers International Union, etc. v. Robert M. Mahoney et al., No. 72-1731, filed August 16, 1973 (unpublished).
. See, 85 Harv.L.Rev. 636 (1972) ; Griswold, The Supreme Court 1959 Term, 74 Harv.L.Rev. 81, 181 (1960) ; 59 Mich.L.Rev. 454 (1961) ; 45 Mimi.L.Rev. 282 (1960) ; The New Federal Law of Labor Injunctions, 79 Yale L.J. 1593 (1970).
. In Hughes Tool Co., 36 Lab.Arb. (1960), an arbitrator reached a result generally inconsistent with that reached here. The arbitrator stated:
Both parties referred in their respective arguments to the recent decisions of the United States Supreme Court in * * * American Manufacturing Co., [and] Warrior * * *. Those cases all dealt, however, with the power of federal courts, rather than with the discretion of arbitrators. Construing those cases in a way most favorable to the Union here involved would lead at most to the conclusion that if the parties had litigated this issue in federal court instead of submitting it to private arbitration, the court would have ruled that the issue was arbitrable ; or that, conversely, if the arbitration decision in this case were in favor of arbitrability, the court would decline to vacate it on review.
Id. at 1129.
. * * * The present federal policy is to promote industrial stabilization through the collective bargaining agreement. * * *
Complete effectuation of the federal policy is achieved when the agreement contains both an arbitration provision for all unresolved grievances and an absolute prohibition of strikes, the arbitration agreement being ' the “quid pro quo” for the agreement not to strike. Textile Workers v. Lincoln Mills, 353 U.S. 448, 455, 77 S.Ct. 912, 1 L.Ed.2d 972.
United Steel Workers v. Warrior and Gulf Navigation Co., 363 U.S. 574, 578, 80 S.Ct. 1347, 1350, 4 L.Ed.2d 1409 (1960).
. The demands of the Steel Workers trilogy were recently reiterated in Gateway Coal Company v. United Mine Workers of America, et al., 414 U.S. 368, 94 S.Ct. 629, 38 L.Ed.2d 583 (January 8, 1974), in which a general arbitration clause was held applicable to safety disputes.
The following cases are distinguishable on their facts: West Coast Telephone Co. v. Local U. No. 77, Int. Bro. of Elec. Wkrs., 431 F.2d 1219 (9th Cir. 1970) ; Federal Labor Union No. 18887 v. Midvale-Heppenstall Co., 421 F.2d 1289 (3rd Cir. 1970) ; Radio Corp. of Am. v. Association of Scientists & Pro. Eng. P., 414 F.2d 893 (3rd Cir. 1969). In each case, the collective bargaining agreement made it clear that the issue the Union sought to arbitrate was, in fact, non-arbitrable. dee also, Firestone Tire and Rubber Co. v. International Union, Etc., 476 F.2d 603 (5th Cir. 1973) ; Ford v. General Electric Co., 395 F.2d 157 (7th Cir. 1968).
Question: This question concerns the second listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case?
A. agriculture
B. mining
C. construction
D. manufacturing
E. transportation
F. trade
G. financial institution
H. utilities
I. other
J. unclear
Answer:
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songer_const2
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0
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the 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.
In re ALLIED-SIGNAL INC., et al., Petitioners.
No. 89-1823.
United States Court of Appeals, First Circuit.
Heard Oct. 6, 1989.
Decided Dec. 20, 1989.
Geoffrey C. Hazard, Jr., New Haven, Conn., with whom Stephen H. Sachs, Baltimore, Md., Andrew B. Weissman, Alan N. Braverman, Joseph E. Killory, Jr., Washington, D.C., Teresa D. Baer and Wilmer, Cutler & Pickering, were on brief for petitioners.
Arthur R. Miller, Cambridge, Mass., with whom Sherrill Hondorf, Waite, Schneider, Bayless & Chesley, Peter Berkowitz, Alvaro Calderon, Hato Rey, P.R., Stanley M. Chesley, Cincinnati, Ohio, John Cummings, III, New Orleans, La., Wendell H. Gauthier, Metairie, La., David C. Indiano, Will Kemp, Las Vegas, Nev., Harvey B. Nach-man, Santurce, P.R., Jorge Ortiz Brunet, Hato Rey, P.R., Jorge M. Suro-Ballester and Francisco M. Troncoso, were on brief for respondents, The Plaintiffs’ Steering Committee.
Before CAMPBELL, Chief Judge, TIMBERS, Senior Circuit Judge, and BREYER, Circuit Judge.
Of the Second Circuit, sitting by designation.
BREYER, Circuit Judge.
A group of defendants, currently engaged in a highly complex mass tort litigation, have filed a mandamus petition asking us to disqualify the judge and to declare a mistrial because two of the judge’s law clerks have brothers who represent plaintiffs. After reviewing the special circumstances of this litigation, we conclude that it would not be proper for us to provide the relief these defendants seek. We therefore deny the defendants’ petition for mandamus.
I.
Background
On New Year’s Eve 1986 a fire in the San Juan Dupont Plaza Hotel in San Juan, Puerto Rico killed 97 people and injured several hundred others. Within a few months over 2,300 plaintiffs filed numerous actions seeking a total of about $1.8 billion from more than 200 defendants. The Judicial Panel for Multidistrict Litigation transferred these related cases from all over the United States to San Juan, Puerto Rico, where Judge Raymond Acosta has since managed, and brought to trial, what the trade press has described as “the nation’s largest mass disaster litigation.”
Judge Acosta has played an active role in trying to obtain a resolution of the litigation. He developed and promulgated a 252-page case management order. He imposed and enforced strict discovery deadlines. He appointed a Plaintiffs’ Steering Committee. At his request the Chief Justice of the United States appointed U.S. District Court Judge Louis C. Bechtle of Philadelphia a “settlement judge,” permitting the parties to try to settle their claims before that judge while they simultaneously prepared for trial in Judge Acosta’s court.
Judge Acosta’s management orders provided for several separate trials, each dealing with different issues common to many of the individual cases. A “Phase One” trial permitted the plaintiffs to litigate against the hotel’s many corporate owners (and related insurers) to determine whether the plaintiffs could “pierce the corporate veil” of the corporation that directly owned the hotel (and had little insurance) in order to make more distant (and ultimate) owners liable. In the “Phase Two” trial now before us, the plaintiffs are litigating against manufacturers of products used in the hotel and the providers of services to the hotel, claiming that defects in those products and services led to unnecessary death and injury. Trials of later phases will involve apportionment of negligence, various cross-claims and third party complaints, and ultimately the hotel’s racketeering claim against the Teamsters Union, whose members, the hotel says, set the fire.
After about two years of pretrial proceedings that involved the collection and storage of more than 3,000,000 documents, the taking of 2,200 depositions, 200 pretrial orders, 500 “margin orders,” 12,000 docket entries, and the construction of a specially designed courtroom, the consolidated cases were ready for the Phase One “corporate veil” trial. It began on March 12, 1989. Within two months the hotel defendants and the plaintiffs, negotiating in Philadelphia, reached a settlement, calling for the hotel defendants to pay about $85 million, approximately 35% of the $248 million “global value” that Judge Bechtle said he would place upon the claims against them. On May 12, 1989, Judge Acosta stayed the Phase One trial in light of the settlement.
Judge Acosta then proceeded to the Phase Two “suppliers” trial (against 90 of the hotel’s product and service suppliers); on June 27,1989, jury selection in that trial began. Six weeks later, after opening arguments and the beginning of the trial, 40 of 78 remaining Phase Two defendants asked Judge Acosta to recuse himself and to declare a mistrial. They pointed out that one of the judge’s law clerks who was working on the case, Richard Graffam, has a brother William who is a named partner in a San Juan law firm that represents 58 of the 2,300 plaintiffs; that one of the members of that firm (David Indiano) is a member of the Plaintiffs’ Steering Committee; and that William himself had appeared at the counsel table twice during the Phase Two trial. They also pointed out that another clerk who was working on the case, Vilma Vila, has a brother Raul who is a member of a law firm that represents the hotel corporation, a corporation which, like the plaintiffs, has an interest in finding the suppliers liable for some of the damages. (The Phase One settlement agreement explicitly provides that the $85 million payable by the hotel defendants will be reduced by 50% of the amounts plaintiffs receive from other defendants, up to a total reduction of $7 million.) They argued that, in light of these relationships, Judge Acosta’s “impartiality might reasonably be questioned,” 28 U.S.C. § 455(a); hence, the law required him to “disqualify himself.” Id.
Judge Acosta denied the defendants’ motions. The forty defendants (joined by several others) now ask us to issue a writ of mandamus requiring Judge Acosta to declare a mistrial in Phase Two and to disqualify himself from further participation. See In re United States, 666 F.2d 690, 694 (1st Cir.1981) (“the issue of judicial disqualification presents an extraordinary situation suitable for the exercise of our mandamus jurisdiction”). But see id. at 695 (“the party seeking the writ of mandamus must show a ‘clear and indisputable’ right to relief”) (quoting Kerr v. United States District Court, 426 U.S. 394, 403, 96 S.Ct. 2119, 2124, 48 L.Ed.2d 725 (1976)); In re Union Leader Corp., 292 F.2d 381, 383 (1st Cir.) (holding that mandamus is a power to be exercised sparingly, and should be resorted to only in extreme cases), cert. denied, 368 U.S. 927, 82 S.Ct. 361, 7 L.Ed.2d 190 (1961). We have reviewed the record and Judge Acosta’s opinion accompanying his denial of the defendants’ motions. In our view, Judge Acosta’s decision falls within the bounds of the discretionary authority which the law provides him. We therefore deny the mandamus petition.
II.
The Relevant Law
The relevant statute, 28 U.S.C. § 455(a), says:
Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
28 U.S.C. § 455(a). We draw our legal standards for review of a district judge’s decision not to disqualify himself from an analogous case, In re United States, 666 F.2d at 690. We there held (1) that “a charge of partiality must be supported by a factual basis,” (2) that “disqualification is appropriate only if the facts provide what an objective, knowledgeable member of the public would find to be a reasonable basis for doubting the judge’s impartiality,” and (3) that this court of appeals will allow the district judge “a range of discretion” in making these determinations. Id. at 695 (emphasis in original). Only if the district court’s decision to sit “cannot be defended as a rational conclusion supported by reasonable reading of the record ” will we insist upon disqualification. Id. (emphasis added). See United States v. Giorgi, 840 F.2d 1022, 1034 (1st Cir.1988) (“The decision to grant or to deny a motion for disqualification is committed largely to the discretion of the trial court, and we review it solely to evaluate whether the decision below amounted to an abuse of discretion.”). We also said that, when considering disqualification, the district court is not to use the standard of “Caesar's wife,” the standard of mere suspicion. In re United States, 666 F.2d at 695 n. *. That is because the disqualification decision must reflect not only the need to secure public confidence through proceedings that appear impartial, but also the need to prevent parties from too easily obtaining the disqualification of a judge, thereby potentially manipulating the system for strategic reasons, perhaps to obtain a judge more to their liking. See, e.g., In re Drexel Burnham Lambert Inc., 861 F.2d 1307, 1312 (2d Cir.1988) (“A judge is as much obliged not to recuse himself when it is not called for as he is obliged to when it is.”), cert. denied sub. nom. Milken v. SEC, - U.S. -, 109 S.Ct. 2458, 104 L.Ed.2d 1012 (1989); In re United States, 666 F.2d at 694; United States v. Bray, 546 F.2d 851, 857 (10th Cir.1976); Alvarado Morales v. Digital Equipment Corp., 699 F.Supp. 16, 19 (D.P.R.1988) (“[I]t has been wisely observed that each judge must be alert to avoid the possibility that those who would question his impartiality are in reality seeking to avoid the consequences of his expected adverse decision_”); H.R.Rep. No. 1453, 93rd Cong., 2d Sess., reprinted in 1974 U.S.Code Cong. & Admin. News 6351, 6355 (“Litigants ought not to have to face a judge where there is a reasonable question of impartiality, but they are not entitled to judges of their own choice.”). Even though § 455 was intended to do away with the formal “duty to sit” doctrine, see Blizard v. Frechette, 601 F.2d 1217, 1220 (1st Cir.1979); H.R.Rep. No. 1453, 93rd Cong., 2d Sess., reprinted in 1974 U.S.Code Cong. & Admin. News 6351, 6355, the judge must still tread cautiously, recognizing, on the one hand, the great importance to the judicial institution of avoiding any appearance of partiality, while simultaneously remaining aware of the potential injustices that may arise out of unwarranted disqualification.
III.
The Law Applied
Given these standards, the district court’s determination, and the record before us, we cannot find the district court’s decision unlawful. Were this an ordinary ease, involving a law clerk whose brother (or whose brother’s firm) represented a party, the legal question of whether a judge must disqualify himself would at least be a close one. On the one hand, the relationship at issue, “brother of a clerk,” is a close relationship; that relationship itself creates a fairly close relation between clerk and party, at least where the brother himself (and not simply someone else in a large firm) represents a party in court; and the relationship of clerk to judge itself is close enough that one might find an appearance of undue influence. See, e.g., Parker v. Connors Steel Co., 855 F.2d 1510, 1525 (11th Cir.1988) (“We recognize the importance that some law clerks play in the decisional process and it is for this reason that a ‘ “clerk is forbidden to do all that is prohibited to the Judge.” ’ ”) (quoting Hunt v. American Bank & Trust Co., 783 F.2d 1011, 1015 (11th Cir.1986) (quoting Hall v. Small Business Administration, 695 F.2d 175, 179 (5th Cir.1983))), cert. denied, - U.S.-, 109 S.Ct. 2066, 104 L.Ed.2d 631 (1989). Ordinarily, it would not be difficult for a judge to assign some other clerk to work on the case; and, ordinarily, if a clerk were needed and no clerk of impartial appearance were available, a judge might be able to recuse himself with no great inconvenience or risk of injustice to the parties. Indeed, Judge Acosta himself has previously done so. See Opinion and Order of September 10, 1986, Pan American Grain, Inc. v. M/V Freedom, Civil No. 84-1795 (D.P.R.) (per Acosta, J.) (granting recusal motion under 28 U.S.C. § 455(a) when former law clerk and brother of only available current law clerk were both counsel for plaintiff).
On the other hand, the conflict is relatively weak and remote. Assuming the family relationship raises a slight cloud, few knowledgeable people would expect that it would ordinarily cause most law clerks to actually commit the serious ethical breach of seeking to influence a judge improperly. Both bench and bar recognize, moreover, that judges, not law clerks, make the decisions. The statute itself speaks of “justice[s], judge[s], or magistrate^],” not clerks. See 28 U.S.C. § 455(a). And judges are fully capable (and believed by reasonable members of the public to be fully capable) of taking account of whatever “bias” having a brother in a plaintiff’s law firm might bring to a clerk. Furthermore, individual judges must enjoy considerable independence in deciding precisely how to use their law clerks, for “bureaucratizing” the law clerk system with too many rules and regulations or too much appellate court supervision would threaten the flexibility that permits that system to speed the resolution of cases. At the same time, it is not necessarily easy, from an administrative perspective, for a judge to find and to deal in advance with all “suspect” relationships of staff and parties, particularly in a legal world where “the country’s 25 biggest law firms together now employ more than 10,-000 lawyers.” New York Times, November 22, 1989, at A22, col. 4.
The ease before us, moreover, is not an ordinary case. It is large, complex, and time consuming; it involves hundreds of lawyers, thousands of parties, and hundreds of millions of dollars in potential damages. It is a case where the need for judicial management by the district court counsels caution prior to intervention by an appellate court. And it is a ease of a sort that the Supreme Court has singled out for somewhat special treatment. See Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 108 S.Ct. 2194, 2203 n. 9, 100 L.Ed.2d 855 (1988). These special features fortify our conclusion that the law requires neither disqualification nor mistrial, for two separate, independent sets of reasons.
1. Section 455’s Appearance of Impartiality. In addition to the general factors already mentioned, three special features of this case militate against our finding an appearance of partiality that requires- disqualification. First, other things being equal, the more common a potentially biasing circumstance and the less easily avoidable it seems, the less that circumstance will appear to a knowledgeable observer as a sign of partiality. If only a handful of judges paid federal income tax, for example, one might wonder about the appearance of one such judge deciding a tax case that could produce lower rates; when nearly all judges pay taxes, the appearance does not seem significant. Similarly, in this case, the federal bar in Puerto Rico is small; fewer than 500 lawyers practice in the federal district court. The number of Puerto Rican lawyers involved in this case is large; 51 Puerto Rican law firms (including 12 of the largest 20) represent defendants; at least 48 Puerto Rican lawyers represent plaintiffs. The risk that a law clerk, or some other staff member, will have a brother or sister or some other family member involved in this case is a likely concomitant of trying such a large case in such a small district. We do not say that the relationship is unavoidable; we simply say that it arises out of a common circumstance. And, a knowledgeable objective observer is therefore more likely to see the relation as implicit in the special circumstances rather than as an odd coincidence the failure to avoid which might suggest bias.
Second, other things being equal, the greater the extent to which the potentially-disqualifying circumstance facilitates the just and efficient resolution of a case, the less likely a knowledgeable observer will consider it a sign of judicial partiality. In this case, the effective management of this highly complex litigation benefited from, if it did not absolutely require, the services of the particular law clerks in question. Graf-fam and Vila are not law clerks hired fresh from law school. Rather, they are career clerks who were already working for Judge Acosta when the hotel litigation began in January of 1987. The record suggests that their experience and participation were highly useful in bringing Phase One to trial, smoothly, and with unusual speed. In other words, the court’s need for the clerks was somewhat special and likely to have been seen as such.
Third, the parties’ own words and deeds may help determine the extent to which a knowledgeable observer would see, in a particular circumstance, a sign of partiality. Here, the record suggests that the district court reasonably believed that the parties, certainly by the time of the Phase Two trial, were aware, or should have been aware, of the relationships involved. The law clerks were present at nearly all discovery conferences and every day at trial; the press identified them by name, and carried a picture of Richard Graffam together with Judge Acosta; they participated actively in many of the proceedings; during the Phase One jury selection, Richard Graffam’s name and Vilma Vila’s name were mentioned to the jury several times each day. The Puerto Rican legal community, particularly the federal bar, is small enough for active members to know each other, at least by reputation; there is apparently only one Graffam family in Puerto Rico; William Graffam is a prominent lawyer whose name has appeared often on documents associated with this case; indeed, one lawyer for defendants says in a recusal affidavit that he knew that Richard and William Graffam were related before the beginning of the hotel litigation. Yet, for more than two years during which Richard Graffam and Vilma Vila participated in the proceedings, no one objected. This fact suggests that, until recently, those associated with the case did not see the “sibling relationship” as carrying with it a threat to the impartiality of the proceedings; and that fact helps to support the district court’s conclusion that a “knowledgeable” objective observer would not have seen in the relationship a significant indication of partiality.
These special features of this case make it readily distinguishable from Parker v. Connors Steel Co., 855 F.2d at 1510 (finding an appearance of partiality under § 455(a) where the district judge’s law clerk’s father was a partner in a law firm that represented one of the parties, the law clerk’s father himself was a former law clerk to the judge, the law clerk had presided at a hearing in the judge’s absence, and the district judge would specifically give credit to the law clerk in the opinions he authored, but concluding that the judge’s denial of a recusal motion was harmless error). The special features, together with the general considerations that we mentioned above, see pp. 970-971, supra, lead us to conclude that Judge Acosta’s determination that an objective, knowledgeable observer would not have “a reasonable basis for doubting the judge’s impartiality” falls within the “range of discretion” that the law allows him. In re United States, 666 F.2d at 695.
2. The Proper Remedy. Even if we reached the opposite conclusion about the appearance of partiality, we should still deny defendants’ mandamus petition for reasons related to remedy. The petition asks for certain relief that is related to the past, namely the declaration of a mistrial; it also asks for certain relief that is related to the future, namely an order requiring disqualification. As to the future, the appropriate order from this court would require Judge Acosta to proceed without the clerks, not to disqualify himself. “If a clerk has a possible conflict of interest, it is the clerk, not the judge, who must be disqualified.” Hunt v. American Bank & Trust Co., 783 F.2d 1011, 1016 (11th Cir.1986).
We shall not now insist, however, that Judge Acosta disqualify his clerks for the future, for proper management of this enormously complex case is of great importance, we are uncertain about the extent to which these particular clerks are needed at this stage of the proceedings, and we would not risk disruption without such knowledge. We note, however, that one of the circumstances we relied upon in our discussion of impartiality — the absence of objection by the parties — can no longer be said to characterize the situation. We therefore point out to Judge Acosta that he may wish to reconsider the continued use of clerks with a “sibling relationship.”
As to relief for the past, the Supreme Court has said, in respect to judicial actions already taken, that the disqualification statute, 28 U.S.C. § 455, “neither prescribes nor prohibits any particular remedy for a violation of” the duty that the statute imposes. Liljeberg, 108 S.Ct. at 2203. It has added that “in determining whether a judgment should be vacated for a violation of § 455, it is appropriate to consider the risk of injustice to the parties in the particular case, the risk that the denial of relief will produce injustice in other cases, and the risk of undermining the public’s confidence in the judicial process.” Id. at 2204. Although the Supreme Court made this statement in the context of a motion under Fed.R.Civ.P. 60(b), we believe it should apply as well to present circumstances, where “mistrial” or retroactive “disqualification” would threaten to undo matters of considerable importance previously decided.
Were our conclusion about the appearance of partiality different, the factors that the Supreme Court mentions, as applied to the case before us, would nonetheless prevent us from setting aside any previous judicial action. Retrying Phase Two would create a significant risk of injustice to the parties, in that doing so would mean considerable repetition. By September 14, 1989, second phase preparation and trial had involved the entry of 2,210 items on the docket, the admission of 699 exhibits, the issuance of 143 orders, and the examination of 57 witnesses. Moreover, interrelationships between the different phases of the case and between settlement procedures and trial, the care with which the pretrial orders, the discovery, and the trial preparations have been crafted and organized, and the way in which those orders have been meticulously enforced, lead us to fear that retrial could mean, not only the unfairness inherent in the loss of time and money, but also the greater injustice inherent in putting the settlement agreements at risk.
Nor do we believe that denial of the particular retrospective relief requested would produce injustice in other cases. The petitioners have not alleged that actual bias has infected any findings or rulings. They have not pointed to any specific findings or rulings already made in the Phase Two litigation that are incurable or could have preclusive effect in some other action.
Further, for reasons set forth earlier, see pp. 970-972, supra, we would not believe (even were the “appearance of partiality” line drawn differently) that the relevant public’s confidence in the judiciary would be seriously undermined were no mistrial declared.
Finally, few equitable considerations favor the parties who have brought this petition. All but one of the 49 petitioners are represented by local counsel, yet only 6 local counsel, representing 24 of the petitioning defendants, have produced sworn statements that they did not know of the “sibling relationships” until after the Phase Two trial began. (Of course, some “stateside” counsel have produced such statements, which is pretty much beside the point.) Given the opportunities for the parties now before us to learn of this “relationship,” and to ask Judge Acosta to find new clerks well before the present trial, we cannot find many considerations of justice that argue for declaration of a mistrial.
In sum, the remedial considerations mentioned by the Supreme Court in Liljeberg weigh heavily against granting the retrospective relief requested.
For both sets of reasons — those related to the merits of the “impartiality” question and those related to remedy — the petition for mandamus is
Denied.
Question: What is the second most frequently cited provision of the U.S. Constitution in the headnotes to this case? If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
Answer:
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songer_applfrom
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A
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What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court).
UNITED STATES of America, Appellee, Cross-Appellant, v. Thomas MICKENS, Anthony Jacobs, Shelby Kearney, Defendants-Appellants, Bettina Jacobs Celifie, Defendant-Appellant, Cross-Appellee.
Nos. 157-161, Dockets 90-1061 to 90-1064 and 90-1097.
United States Court of Appeals, Second Circuit.
Argued Oct. 25, 1990.
Decided Feb. 26, 1991.
John L. Pollok, New York City (Michael H. Gold, Susan C. Wolfe, Hoffman & Pol-lok, New York City of counsel), for defendant-appellant Mickens.
Robert L. Ellis, New York City, for defendant-appellant Kearney.
Georgia J. Hinde, New York City (Vivian Shevitz, New York City of counsel), for defendant-appellant Jacobs.
Chris P. Termini, Melville, N.Y. (Scalzi & Nofi, of counsel), for defendant-appellant, cross-appellee Celifie.
Kirby A. Heller, Asst. U.S. Atty., E.D. N.Y. (Andrew J. Maloney, U.S. Atty., Matthew E. Fishbein, Susan Corkery, Asst. U.S. Attys., E.D.N.Y., of counsel), for ap-pellee, cross-appellant.
Before MESKILL and ALTIMARI, Circuit Judges, and METZNER, District Judge.
The Honorable Charles M. Metzner, District Judge of the United States District Court for the Southern District of New York, sitting by designation.
ALTIMARI, Circuit Judge:
Defendants-appellants Thomas Mickens, Anthony Jacobs, Shelby Kearney, and Bet-tina Jacobs Celifie appeal from judgments of conviction, entered in the United States District Court for the Eastern District of New York (Thomas C. Platt, Chief Judge).
Following a four-month jury trial, Mick-ens was convicted of conspiracy to distribute and to possess with intent to distribute cocaine, in violation of 21 U.S.C. § 846 (1988); conspiracy to defraud the United States, in violation of 18 U.S.C. § 371 (1988); four counts of income tax evasion, in violation of 26 U.S.C. § 7201 (1988); one count of filing a perjurious income tax return, in violation of 26 U.S.C. § 7206(1) (1988); eight counts of money laundering, in violation of 18 U.S.C. § 1956(a)(l)(B)(i) & (ii) (1988); and, one count of structuring a financial transaction as part of a pattern of illegal activity, in violation of 31 U.S.C. § 5324(3) (1988). Shelby Kearney and Bet-tina Jacobs Celifie were each convicted of conspiracy to defraud the United States, in violation of 18 U.S.C. § 371, and one count of money laundering, in violation of 18 U.S.C. § 1956(a)(l)(B)(i). Celifie was also convicted of one count of structuring a financial transaction as part of a pattern of illegal activity, in violation of 31 U.S.C. § 5324(3). Anthony Jacobs pleaded guilty to conspiracy to distribute cocaine, in violation of 21 U.S.C. § 846; conspiracy to defraud the United States, in violation of 18 U.S.C. § 371; and, two counts of distributing cocaine, in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(C).
On appeal, defendants-appellants Mick-ens, Kearney, and Celifie contend that comments made by the district court during trial deprived them of their constitutional right to a fair trial. They also challenge the court’s denial of a motion to suppress certain evidence, its rulings on various evi-dentiary questions posed during the course of the trial, and its instructions to the jury regarding the elements of a section 1956 violation. Moreover, they question the constitutionality of the currency reporting requirements of 31 U.S.C. § 5313 (1988). Defendant-appellant Jacobs appeals from his sentence of imprisonment. He contends that, in calculating his offense level, the district court improperly attributed to him the entire quantity of narcotics for which Mickens was found responsible. The government cross-appeals from the district court’s decision to downwardly depart in sentencing defendant-appellant Celifie.
For the reasons set forth below, the judgments of the district court are affirmed in part, reversed in part, and remanded.
BACKGROUND
Between 1984 and 1988, defendant-appellant Thomas Mickens directed a lucrative cocaine distribution network in Queens, New York. At trial, two law enforcement officers testified about numerous undercover cocaine purchases from individuals identified as Mickens’ underlings. For example, on two separate occasions undercover officer Austin Fields purchased cocaine from defendant-appellant Anthony Jacobs, a reputed “lieutenant” in the Mickens organization. On another occasion, surveillance agents spotted Mickens in the vicinity of a narcotics transaction between undercover Officer Terance Miller and another Mick-ens’ associate, George Jenkins. Officer Miller also purchased cocaine directly from Mickens while both men were seated in an undercover police car.
In addition to the direct evidence of narcotics activity, the prosecution presented evidence of Mickens’ lavish spending. The testimony of several automobile salesmen and insurance agents connected Mickens to the purchase of eighteen automobiles, costing a total of approximately $556,000. Trial evidence also established that Mickens purchased some sixteen properties, including commercial property in Queens, a $730,-000 residence in Dix Hills, New York, a residence in Miami, Florida, and a condominium in California. Mickens’ former attorney testified that he assisted Mickens in purchasing several properties using cash and money orders. He also testified that he helped Mickens launder money by preparing contracts and closing documents that significantly understated the properties’ actual purchase prices.
Additional evidence of Mickens’ automobile and real estate purchases was obtained during a warrant-authorized search of the Dix Hills residence. The warrant permitting the search was obtained on the basis of observations made by FBI agent Nerisa Pilafian during a “protective sweep” of the premises in connection with Mickens’ arrest. Mickens moved before the district court to suppress the evidence obtained from the Dix Hills residence, claiming that Agent Pilafian’s protective sweep was not justified by the circumstances of the arrest. This motion was denied.
Many of Mickens’ automobile and real estate purchases were accomplished through the use of nominees, including defendants-appellants Kearney and Celifie. For example, trial evidence established that Kearney, who was Mickens’ girlfriend, acted on Mickens’ behalf in the purchases of property in Hempstead, New York and the residence in Dix Hills, New York. The prosecution also presented evidence that Bettina Jacobs Celifie acted as Mickens’ nominee in purchasing the California condominium, as well as a $133,350 yacht.
Following a four-month jury trial, defendant-appellant Mickens was convicted of, inter alia, conspiracy to distribute and to possess with intent to distribute cocaine, conspiracy to defraud the United States, income tax evasion, and money laundering. He was sentenced to an aggregate term of imprisonment of thirty-five years, a fine of $1,000,000, and a special assessment of $800. Defendants-appellants Kearney and Celifie were each convicted of conspiracy to defraud the United States and money laundering, and Celifie was also convicted of structuring a financial transaction as part of a pattern of illegal activity. Kearney was sentenced to concurrent five-year terms of imprisonment on each count, to be followed by two years’ supervised release, a fine of $200,000, and a $100 special assessment. Celifie was sentenced, pursuant to a downward departure, to concurrent eighteen-month terms of imprisonment on each count, to be followed by two years’ supervised release, and a $150 special assessment. Defendant-appellant Anthony Jacobs, who pleaded guilty to conspiracy to distribute cocaine, conspiracy to defraud the United States, and distributing cocaine, was sentenced to 327 months’ imprisonment, to be followed by a five-year term of supervised release, and a special assessment of $200. This appeal and cross-appeal followed.
DISCUSSION
I. The Unfair Trial Claim.
Defendants-appellants Mickens, Kearney and Celifie claim that the district court’s admonitions to counsel and questions of witnesses deprived them of a fair trial. Defendants-appellants claim that the court “poisoned the courtroom atmosphere and prevented a fair trial.” We disagree.
While many of the court’s remarks were unfortunate, their cumulative effect was not a deprivation of the right to a fair trial. A trial judge “ ‘need not sit like a “bump on a log” throughout the trial.’ ” United States v. Bejasa, 904 F.2d 137, 141 (2d Cir.) (quoting United States v. Pisani, 773 F.2d 397, 403 (2d Cir.1985)), cert. denied, — U.S. -, 111 S.Ct. 299, 112 L.Ed.2d 252 (1990). As this Court recently stated:
Judges, being human, are not immune to feelings of frustration at the occasional antics or inartfulness of attorneys or impatience at the evasiveness of witnesses. Such feelings may give vent to remarks which, judged in isolation from the totality of the record through the dispassionate looking glass of hindsight, “would better have been left unsaid.” Yet, analysis of such comments, taken out of context of the entire record, is not the proper basis for review. Rather, we must make “an examination of the entire record,” in order to determine whether the defendant received a fair trial.
Id. at 141 (quoting United States v. Robinson, 635 F.2d 981, 985 (2d Cir.1980), cert. denied, 451 U.S. 992, 101 S.Ct. 2333, 68 L.Ed.2d 852 (1981), and United States v. Mazzilli, 848 F.2d 384, 389 (2d Cir.1988)). Viewing the record in the present case in its entirety, it is clear that defendants-appellants received a fair trial. The district court’s occasional intemperate remarks did not substantially taint defendants-appellants’ trial. It must be noted that these remarks were provoked to some extent by one defense counsel’s despicable verbal assault on the court. That attorney’s conduct was so egregrious that, after verdict, the court advised counsel that it intended to file a complaint with the Grievance Committee of the Eastern District of New York. Moreover, any possible prejudice to defendants-appellants was cured by the court’s cautionary instruction. See United States v. Bejasa, 904 F.2d at 141; United States v. Gurary, 860 F.2d 521, 527 (2d Cir.1988), cert. denied, 490 U.S. 1035, 109 S.Ct. 1931, 104 L.Ed.2d 403 (1989).
II. The Motion To Suppress.
Defendant-appellant Mickens argues that the district court erred in denying his motion to suppress evidence obtained in the warrant-authorized search of the Dix Hills residence. He claims that the warrant was issued on the basis of information gathered during an improper “protective sweep” of the residence, conducted by FBI agent Nerisa Pilafian in the process of arresting Mickens. Again, we disagree.
Law enforcement officers may conduct a protective sweep of a residence during the course of an arrest if they possess “a reasonable belief based on specific and articulable facts that the area to be swept harbors an individual posing a danger to those on the arrest scene.” Maryland v. Buie, 494 U.S. 325, 110 S.Ct. 1093, 1099-1100, 108 L.Ed.2d 276 (1990). This standard was satisfied in the present case. The arresting officers had reason to believe that defendant-appellant Kearney and her mother—both of whom resided in the house—were on the premises. Moreover, as the district court found, "agents had reason to believe that Mickens was a drug dealer who was known to be violent and who travelled with others.” Thus, Agent Pilafian had a reasonable basis to conduct the protective sweep of the Dix Hills residence. See United States v. Escobar, 805 F.2d 68, 71-72 (2d Cir.1986); United States v. Jackson, 778 F.2d 933, 937 (2d Cir.1985), cert. denied, 479 U.S. 910, 107 S.Ct. 308, 93 L.Ed.2d 282 (1986). Moreover, the scope of Agent Pilafian’s protective sweep did not extend beyond the “cursory inspection” deemed proper by the Supreme Court. Buie, 110 S.Ct. at 1099. Accordingly, the district court properly refused to suppress the evidence yielded by the warrant-authorized search of the Dix Hills residence.
III. The Evidentiary Rulings.
A. The admission of threat evidence.
Defendant-appellant Mickens challenges the district court’s decision to permit Mickens’ former attorney to testify that Mickens had made a hand gesture in the shape of a gun as the former attorney entered the courtroom to testify. Mickens argues that this testimony lacked probative value and that the former attorney’s testimony that Mickens had pointed at the court, not at the attorney, was unduly prejudicial. This challenge lacks merit.
Evidence, such as the former attorney’s testimony, offered under Fed.R.Evid. 404(b) may be admitted if the court: 1) determines that the evidence is offered for “a purpose other than to prove the defendant’s bad character or criminal propensity,” United States v. Colon, 880 F.2d 650, 656 (2d Cir.1989); 2) determines that the evidence is relevant under Fed.R.Evid. 401 & 402, and is more probative than unfairly prejudicial under Fed.R.Evid. 403, id. (quoting United States v. Ortiz, 857 F.2d 900, 903 (2d Cir.1988), cert. denied, 489 U.S. 1070, 109 S.Ct. 1352, 103 L.Ed.2d 820 (1989)); and 3) provides an appropriate limiting instruction to the jury, if one is requested, id. (citing Huddleston v. United States, 485 U.S. 681, 691-92, 108 S.Ct. 1496, 1502, 99 L.Ed.2d 771 (1988), and United States v. Ortiz, 857 F.2d at 903).
In the present case, the standards for admission of Rule 404(b) evidence were satisfied. The testimony about the hand gesture was not offered to prove Mickens’ bad character or criminal propensity, but rather to prove his consciousness of guilt. See United States v. Bein, 728 F.2d 107, 114 (2d Cir.), cert. denied, 469 U.S. 837, 105 S.Ct. 135, 83 L.Ed.2d 75 (1984). The testimony was relevant since an effort to intimidate a key prosecution witness was probative of Mickens’ state of mind. Mickens argues that, because the testimony was that the threat was not directed at his former attorney, but at the court, the evidence should have been excluded under Rule 403. However, the fact that Mickens’ hand gesture was directed at the court does not disprove that he attempted to threaten the witness. Indeed, Mickens’ former attorney testified that he felt intimidated by the gesture. Moreover, only a preliminary hearing on the details of the witness’ proposed testimony would have avoided the unanticipated statement that Mickens’ gesture was directed at the court. While, in retrospect, such a preliminary hearing may have been helpful, it is simply not required by Rule 404(b). See Huddleston, 485 U.S. at 686-89, 108 S.Ct. at 1499-1501. We also note that Mickens’ acquittal of two counts of distributing cocaine belies the argument that admission of the threat evidence was unduly prejudicial to Mickens. In sum, the district court’s decision to admit the testimony about Mickens’ apparent threat was not an abuse of discretion. See United States v. Qamar, 671 F.2d 732, 736 (2d Cir.1982); see also United States v. Jamil, 707 F.2d 638, 642 (2d Cir.1983).
B. The evidence of a prior narcotics conviction.
Mickens contends that the district court erred in admitting evidence, pursuant to Fed.R.Evid. 404(b), of Mickens’ prior involvement in narcotics activity, including his 1983 conviction for possessing and selling cocaine. Defendant-appellant Kearney also argues that the court improperly admitted evidence that she visited Mickens while he was serving his prison term for the 1983 conviction. We reject both challenges.
Applying the standards discussed above, we hold that this evidence was properly admitted under Rule 404(b). Mickens’ pri- or involvement in narcotics activity was relevant to the prosecution’s tax evasion and money laundering theory that narcotics sales provided the cash which Mickens spent so lavishly. In addition, Kearney’s visits to Mickens while he was incarcerated were relevant to the second element of the money laundering charge, i.e., that Kear-ney knew that the laundered funds derived from an unlawful source. The district court’s judgment that the probative value of this evidence was not substantially outweighed by its potential prejudicial effect was not an abuse of discretion. See United States v. Smith, 727 F.2d 214, 220 (2d Cir.1984); United States v. Birney, 686 F.2d 102, 106 (2d Cir.1982). Moreover, the court provided a limiting instruction to the jury, informing them of the appropriate use of this evidence. See United States v. Ortiz, 857 F.2d at 903.
C. The in-court identification.
Defendant-appellant Mickens contends that the court erred in permitting various automobile salesmen to identify him in court because those witnesses were previously shown unduly suggestive photo arrays. This contention is unpersuasive.
The pre-trial photo array procedure which Mickens challenges was not “unduly suggestive of the suspect’s guilt.” Dickerson v. Fogg, 692 F.2d 238, 244 (2d Cir.1982). Mickens’ arguments notwithstanding, the fact that his picture was the only photocopy in the array is insignificant. Cf. United States ex rel. Cannon v. Montanye, 486 F.2d 263, 267 (2d Cir.1973), cert. denied, 416 U.S. 962, 94 S.Ct. 1982, 40 L.Ed.2d 313 (1974); United States v. Fernandez, 456 F.2d 638, 641 (2d Cir.1972). Indeed, this difference was so minor that the district court did not notice that Mick-ens’ picture was a photocopy until the defense pointed it out. See United States v. Archibald, 734 F.2d 938, 940 (2d Cir.1984); see also Jarrett v. Headley, 802 F.2d 34, 41 (2d Cir.1986). Even if Mickens’ argument was accepted, it would be of little import since Mickens does not contest his involvement in the transactions in which he was identified. Mickens’ defense is not mistaken identity, but that the various purchases were not made using the proceeds of narcotics activity. Accordingly, it was not error to permit the automobile salesmen who had spotted Mickens in the array to identify him in court.
IV. The Jury Instruction Claim.
Defendants-appellants Mickens, Kearney and Celifie contend that the district court’s instructions to the jury regarding the elements of money laundering, 18 U.S.C. § 1956, constructively amended the indictment against them. We disagree.
To prove a violation of section 1956, the government must establish that a financial transaction “involves the proceeds of specified unlawful activity.” 18 U.S.C. § 1956(a)(1) (emphasis added). The government is further required to demonstrate that the defendant knew that “the property involved in [the] financial transaction represents the proceeds of some form of unlawful activity.” Id. (emphasis added). The indictment counts charging defendants-appellants with money laundering, in pertinent part, stated:
[Defendants-appellants] did knowingly and wilfully conduct and attempt to conduct a financial transaction which involved the proceeds of a specified unlawful activity, to wit: narcotics distribution, knowing that the property involved in such financial transaction, to wit: United States currency, represented the proceeds of some form of unlawful activity and knowing that the transaction was designed in whole or in part to conceal and disguise the nature, the source, the ownership and the control of the proceeds of a specified unlawful activity.
Paralleling the indictment, the district court instructed the jury, inter alia:
The first element of the offense which the government must prove beyond a reasonable doubt is that the defendant you are considering in the count you are considering conducted or attempted to conduct a financial transaction involving property constituting the proceeds of specified unlawful activity, specifically, narcotics distribution.
sk sfc * sjs *
The second element of the offense which the government must prove beyond a reasonable doubt is that the defendant you are considering in the count you are considering knew that the property involved in the financial transaction was the proceeds of some form of an unlawful activity.
This instruction accurately stated the applicable law and conformed to the terms of the indictment.
The defendants-appellants focus, however, on the court’s explanation of the second element of section 1956. In this regard, the court instructed:
I instruct you that this [second] element refers to a requirement that the defendant knew the property involved in the transaction represented proceeds from some form, though not necessarily which form, of activity that constitutes a felony under state or federal law.
I instruct you as a matter of law that narcotics distribution is a felony, as is, for example, gambling.
Again, this instruction adheres to the indictment. Moreover, since the challenged instruction pertained only to the second element of section 1956, it did not enlarge the prosecution’s theory regarding the first element, i.e., that the laundered money represented proceeds from narcotics activity. Accordingly, defendants-appellants’ contention that the indictment charging them with violating section 1956 was constructively amended must be rejected. See United States v. Weiss, 752 F.2d 777, 787-88 (2d Cir.), cert. denied, 474 U.S. 944, 106 S.Ct. 308, 88 L.Ed.2d 285 (1985).
V. The Constitutionality of 31 U.S.C. § 5313.
Defendants-appellants Mickens and Celifie moved before the district court for the dismissal of indictment counts alleging violation of 18 U.S.C. § 1956(a)(l)(B)(ii) and 31 U.S.C. § 5324 (1988), claiming that the domestic currency transaction report (“CTR”) requirements giving rise to those charges are unconstitutional. Specifically, Mickens and Celifie argued that the CTRs required under 31 U.S.C. § 5313(a) (1988) violate the fifth amendment privilege against self-incrimination. The district court denied this motion, and defendants-appellants now challenge that denial. We reject this challenge.
The fifth amendment privilege against self-incrimination protects against governmental compulsion of self-incriminating testimonial communication. See Fisher v. United States, 425 U.S. 391, 397, 96 S.Ct. 1569, 1574, 48 L.Ed.2d 39 (1976); Couch v. United States, 409 U.S. 322, 328, 93 S.Ct. 611, 615, 34 L.Ed.2d 548 (1973). Section 5313(a) and its implementing regulations, 31 C.F.R. § 103.22 (1990), require financial institutions to report certain transactions. See United States v. St. Michael’s Credit Union, 880 F.2d 579, 581-82 (1st Cir.1989). Individuals, including defendants-appellants, are not themselves compelled to report their transactions. See United States v. Hoyland, 914 F.2d 1125, 1130 (9th Cir.1990). Absent such compulsion, Mickens, Kearney, and Celifie may not complain that their fifth amendment rights were violated. See Couch v. United States, 409 U.S. at 328, 93 S.Ct. at 616 (“The Constitution explicitly prohibits compelling an accused to bear witness ‘against himself’; it necessarily does not proscribe incriminating statements elicited from another.”); see also Hoyland, 914 F.2d at 1130.
Moreover, even if 31 U.S.C. § 5313(a) were construed to compel reporting by defendants-appellants, we would find no fifth amendment violation. Reporting requirements have been considered vio-lative of the fifth amendment if they “would almost necessarily provide the basis for criminal proceedings against [the reporting individual] for the very activity that he was required to disclose.” United States v. Dichne, 612 F.2d 632, 640 (2d Cir.1979), cert. denied, 445 U.S. 928, 100 S.Ct. 1314, 63 L.Ed.2d 760 (1980); see Grosso v. United States, 390 U.S. 62, 67-68, 88 S.Ct. 709, 713, 19 L.Ed.2d 906 (1968); Marchetti v. United States, 390 U.S. 39, 55-57, 88 S.Ct. 697, 706-07, 19 L.Ed.2d 889 (1968). By contrast, section 5313(a) is a legitimate reporting requirement which targets transactions without regard to the purposes for which they are undertaken. See Dichne, 612 F.2d at 639-41. Section 5313(a) does not require the reporting of information that would necessarily be criminal. Like the foreign CTR requirements considered in Dichne, section 5313(a)’s reporting requirements do not violate the fifth amendment privilege against self-incrimination. See United States v. Kaatz, 705 F.2d 1237, 1242 (10th Cir.1983); United States v. Keller, 730 F.Supp. 151, 156 (N.D.Ill.1990); United States v. Kimball, 711 F.Supp. 1031, 1032-34 (D.Nev.1989); United States v. Scanio, 705 F.Supp. 768, 778-79 (W.D.N.Y.1988).
VI. Anthony Jacobs’ Sentence.
Defendant-appellant Anthony Jacobs, who pleaded guilty to conspiracy to distribute cocaine, conspiracy to defraud the United States, and distributing cocaine, challenges the sentence imposed on him by the district court. He contends that his sentence, which exceeds twenty-seven years’ imprisonment, resulted from misapplication of the Sentencing Guidelines. We agree and, accordingly, remand to Chief Judge Platt for resentencing.
The district court’s computation of Jacobs’ offense level followed a two-step analysis in which, (1) the court approximated that the Mickens conspiracy distributed in excess of fifty kilograms of cocaine, based on Mickens’ unexplained income of over $2,000,000 during the operation of the conspiracy; and,- (2) the court attributed the full approximated amount distributed by the conspiracy to Anthony Jacobs. This quantity was added to the 24.4 grams of cocaine that Jacobs admitted to selling, and resulted in an offense level of 36. Matching Jacobs’ Criminal History Category I with this offense level resulted in a sentence range of 262 to 327 months. The court sentenced Jacobs to the high end of that range.
The district court’s initial step in calculating Jacobs’ sentence was proper, as the commentary to the Guidelines reveals:
Where ... the amount [of drugs] seized does not reflect the scale of the offense, the sentencing judge shall approximate the quantity of the controlled substance. In making this determination the judge may consider, for example, the price generally obtained for the controlled substance, financial or other records....
U.S.S.G. § 2D1.4, application note 2. In theory, the court’s second step was also proper. Pursuant to Guidelines § 1B1.3, one convicted of a narcotics conspiracy may be sentenced on the basis of “conduct of others in furtherance of the execution of the jointly-undertaken criminal activity that was reasonably foreseeable by the defendant.” U.S.S.G. § 1B1.3, application note 1; see United States v. Schaper, 903 F.2d 891, 897-99 (2d Cir.1990); United States v. Candito, 892 F.2d 182, 185 (2d Cir.1989). However, as applied to Jacobs, attribution of the full approximated amount of cocaine distributed by the Mickens conspiracy was improper. See United States v. Cardenas, 917 F.2d 683, 687 (2d Cir.1990). As Jacobs contends, such attribution
unfairly [holds him] accountable for the narcotics equivalent of four years’ worth of unreported income of another, whose funds may have been accumulated at any prior time, and may have come from any source—including Mickens’ independent, personal transactions in the early 1980’s ..., or some other narcotics conspiracy in which Mr. Jacobs played no part, or even from some altogether different activity such as gambling.
Absent reliable evidence connecting Jacobs to the quantity of narcotics extrapolated from Mickens’ unreported income, Jacobs’ 327-month sentence is unsupportable. Moreover, ascribing “managerial” status to Jacobs without conducting a hearing— something which the probation department and prosecution originally agreed was necessary—was erroneous. See United States v. Lanese, 890 F.2d 1284, 1293 (2d Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 2207, 109 L.Ed.2d 533 (1990).
VII. Bettina Jacobs Celifie’s Sentence.
In sentencing defendant-appellant, cross-appellee Bettina Jacobs Celifie to a term of imprisonment of eighteen months, the district court downwardly departed twenty-three months from the applicable sentencing range. The government cross-appeals from that sentence, contending that the departure was improperly based on Celi-fie’s acceptance of responsibility and on the request for leniency made by the jury in announcing its guilty verdict. We agree and remand to Chief Judge Platt for resen-tencing.
A sentencing court may downwardly depart if it finds “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.” 18 U.S.C. § 3553(b) (1988). Whether a particular factor is a permissible ground for departure is a legal issue, which we review de novo. United States v. Joyner, 924 F.2d 454, 459 (2d Cir.1991); United States v. Barone, 913 F.2d 46, 50 (2d Cir.1990). “Departure authority, though not designed to prevent a sentencing judge from exercising ‘discretion, flexibility or independent judgment,’ is nonetheless a device for implementing the guideline system, not a means of casting it aside.” United States v. Joyner, at 460 (quoting United States v. Lara, 90S F.2d 599, 604 (2d Cir.1990)).
In the present case, the district court apparently believed that the two-point reduction awarded for Celifie’s acceptance of responsibility, U.S.S.G. § 3E1.1, did not adequately reflect the degree of her contrition. We do not foreclose the possibility that this rationale may, in an appropriate case, support a downward departure. However, in sentencing Celifie, the district court made no finding that the circumstances justified a departure for Ce-lifie beyond the two-point reduction she received under the guidelines.
Moreover, the court erred in relying on the jury’s recommendation of leniency for Celifie as a basis for downward departure. Sentencing decisions are solely the
Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)?
A. Trial (either jury or bench trial)
B. Injunction or denial of injunction or stay of injunction
C. Summary judgment or denial of summary judgment
D. Guilty plea or denial of motion to withdraw plea
E. Dismissal (include dismissal of petition for habeas corpus)
F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict)
G. Appeal of post settlement orders
H. Not a final judgment: interlocutory appeal
I. Not a final judgment: mandamus
J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment
K. Does not fit any of the above categories, but opinion mentions a "trial judge"
L. Not applicable (e.g., decision below was by a federal administrative agency, tax court)
Answer:
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songer_genapel1
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G
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant.
GRIFFIN v. UNITED STATES.
No. 4727.
Circuit Court of Appeals, Seventh Circuit.
June 25, 1932.
Rehearing Denied Oct. 3, 1032.
Charles S. Andrus and Lawrence Hoff, both of Springfield, 111., and Edward H. S. Martin, of Chicago, 111., for appellant.
Frank K. Lemon, U. S. Atty., and James P. Dillie, Asst. U. S. Atty., both of Springfield, 111., William Wolff Smith, Sp. Counsel, Veterans’ Administration, and Lawrence A. Lawlor, Attorney, Veterans’ Administration, both of Washington, D. C.
Before ALSOJIULER, EVANS, and SPARKS, Circuit Judges.
SPARKS, Circuit Judge.
This action was brought to recover total permanent disability installments under appellant’s two war risk insurance contracts. The government filed a plea to the petition, in which it is alleged that when the suit was instituted appellant’s claim under said policies was, and still is, pending in the United States Veterans’ Bureau, without ever having been denied by the director thereof or by any one acting in Ms name or on an appeal to the director, and for that reason there has never been any disagreement between the Bureau and appellant with, relation to the claim as contemplated by section 19 of the World War Veterans’ Act of 1924, c. 320, 43 Stat. 612, as amended July 3, 1930, section 4, e. 849, 46 Stat. 992 (38 USCA § 445).
That pait of section 19 wMch is pertinent to the questions presented is as follows: “In the event of disagreement as to claim, including claim for refund of premiums, under a contract of insurance between the burean and any person or persons claiming thereunder an action on the claim may be brought against the United States * * * in the * * * district court of the United States in and for the district in which such persons or any one of them resides, and jurisdiction is hereby conferred upon such courts to hear and determine all such controversies. * * * The term ‘disagreement’ means a denial of the claim by the director or some one acting in Ms name on an appeal to the director. This section, as amended, with the exception of this X>aragraph, shall apply to all suits now pending against the United States under the provisions of the War Risk Insurance Act, as amended, or this chapter [the World War Veterans’ Act, 1924, as amended].”
To appellee’s |>lea to the petition appellant replied that his claim was mailed to the Bureau on September 30, 1930; that on October 17, 1930, the Bureau notified him that its Rating Board had denied the claim on October 13; that on October 21, 1930, he appealed in writing to the Central Board of Appeals, and on the following day the Bureau notified him that the file in his claim would he forwarded on appeal; that on December 18, 1930, he was notified by the Bureau that the Central Board had decided adversely to his claim; that on December 23, 1930; he ap-X>ealed to the Council on Appeals and to the director of the Bureau and requested that, in case of an adverse decision, the matter be forwarded to the Administrator of Veterans’ Affairs for his ultimate decision; that on January 17, 1931, appellant was notified by the Burean that the file was being forwarded to the Council on Appeals; that on February 11, 1931, he sent to said administrator a written demand for a final decision on the claim, and notified the administrator that if appellant did not receive notice of final action on Ms claim wilhin sixty days from February 11,1931, he would institute suit. Copies of this demand wore sent to the regional office and to the director of the Bureau. There was no subsequent aetion by the government or any of its agencies on appellant’s claim, and this action was instituted on June 1, 193L
To appellant’s replication the government filed a demurrer and it was sustained.
The statute referred to is quite plain to the effect that no action shall be instituted upon the elaim until there has been a disagreement between the Bureau and claimant respecting its allowance. The statute is also quite clear that the word “ ‘disagreement’ means a denial of the claim by the director or some one acting in his name on an appeal to the director.” We do not understand that appellant controverts the meaning of the statute in this respect. His contention is that arbitrary power is not thereby granted the director to defeat a claim by inactivity, but that continued inactivity on director’s part for more than a reasonable time will be construed by the courts to amount to a denial.
We do not wish to be considered as either conceding or denying the soundness of appellant’s contention, but, if it be sound, it must be by virtue of the fact that director’s failure to act. was for a longer time than was reasonably necessary under the circumstances. We think the replication is deficient in this respect, and that the demurrer was properly sustained. Appellant’s conclusion that the delay was unreasonable is based entirely upon the. several dates of the different actions upon his claim by the various .departments . of the Bureau. This we think is not sufficient. Being charged with general knowledge of the magnitude of that department, arid the enormous and continually increasing number of claims before it, we are unable to say, without other factual enlightenment, that sixty days is a reasonable time within which the director and those acting under him shall dispose of all appeals presented to him. Indeed, the facts involved in this class of cases are usually so radically different that it would be impossible to fix a limit that would be just to claimants or to the department.
Upon appellant’s failure to plead over and his election to stand on his replication, judgment was entere^ in favor of appellee on its plea “in bar of this action.”
Perhaps this judgment was not intended to preclude appellant from prosecuting his original elaim, and certainly he is entitled to that right. This action, however, seeks judgment on his original claim, and, as a matter of precaution, the ruling of the District Court in sustaining the demurrer to the replication and rendering judgment for appellee is affirmed, with the exception of that part of the judgment which states that it shall be in bar of this action. The cause is remanded, with instructions to delete the words “in bar of this action,” and to insert in lieu thereof a provision that the judgment shall not preclude appellant from further prosecution of his original claim.
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_r_bus
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
THOMPSON et al. v. UNITED STATES.
No. 10949.
Circuit Court of Appeals, Fifth Circuit
Dec. 9, 1944.
Rehearing Denied Jan. 13, 1945.
Howard Dailey, Geo. W. Harwood, and Kent D. Allen, all of Dallas, Tex., for appellants.
Joe H. Jones, Asst. U. S. Atty., of Dallas, Tex., for appellee.
Before SIBLEY, HOLMES, and McCORD, Circuit Judges.
HOLMES, Circuit Judge.
Appellants were found guilty of possessing whiskey knowing that it had been stolen from an interstate shipment, and of conspiring to receive the stolen whiskey. Their appeal challenges the sufficiency of the evidence to sustain their conviction.
The record contains direct evidence to establish that the whiskey was stolen from a shipment in interstate commerce, and that appellants thereafter took it into possession. The crucial point under both counts is whether the evidence proved beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, that they knew the whiskey had been stolen when they received it. Measured by this exacting standard, we think the evidence warranted the verdict of the jury.
According to the uncontradicted evidence, a truck with trailer attached, containing 500 cases of whiskey consigned from Illinois to New Mexico, was stolen from a motor carrier in Dallas, Texas, on the evening of November 14, 1943. At 1:30 a.m. on November 15th, this truck and trailer were in the yard of Mae Hatch’s home in Dallas, and Duane Smith was transferring the whiskey from the trailer to the ground. After it was unloaded, Smith drove the truck and trailer to a distant roadside and abandoned it. Mrs. Hatch, who had followed him, picked him up and brought him to where his car was parked. Smith told her that he would bring some men to help him move the whiskey from the yard into the house. Shortly thereafter, he returned to the home of Mrs. Hatch accompanied by the appellants, and the three men removed the whiskey from the yard into the bedroom of the house.
The work was finished before dawn without the benefit of lights on the lawn or in the bedroom, and Mrs. Hatch was cautioned to say nothing about the matter. She testified that the occurrence so frightened her that she was afraid to stay in the house; that she tried to persuade Smith to remove the whiskey immediately, knowing that it was “hot”; and that she left on a visit to Oklahoma City the following Thursday. An agent of the F. B. I. testified that the appellant Casten told him that some unidentified man came to Cast-en’s home about three o’clock on the morning of November 15th and told Casten that he knew where two or three hundred cases of whiskey were located that could be stolen. The appellants offered no evidence to explain their conduct.
The brief lapse of time between the separation of Mrs. Hatch and Smith and his reappearance at her home with the appellants suggests the likelihood of some prearrangement with them, as did his statement to her that he would bring some men to help him move the whiskey. The possession of so huge a quantity of whiskey of the same brand, and its surreptitious concealment in the early morning hours without benefit of lights, were fraught with suspicious implications.
The only reasonable inference from these unexplained actions, considered as a whole and in their relation to each other, was that the appellants knew the whiskey had been stolen at the time they took possession of it.
The judgment appealed from is affirmed.
This is the quantum of proof required in criminal cases depending upon circumstantial evidence. Paddock v. United States, 9 Cir., 79 F.2d 872; Kassin v. United States, 5 Cir., 87 F.2d 183; Copeland v. United States, 5 Cir., 90 F.2d 78; Cooper v. United States, 5 Cir., 91 F.2d 195.
Question: What is the total number of respondents in the case that fall into the category "private business and its executives"? Answer with a number.
Answer:
|
sc_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.
NEW YORK v. CATHEDRAL ACADEMY
No. 76-616.
Argued October 3, 1977
Decided December 6, 1977
Jean M. Coon, Assistant Solicitor General of New York, argued the cause for appellant. With her on the brief were Louis J. Lefkowitz, Attorney General, Ruth Kessler Toch, Solicitor General, and Kenneth Connolly, Assistant Attorney General.
Richard E. Nolan argued the cause for appellee. With him on the brief was Thomas J. Aquilino, Jr.
Mr. Justice Stewart
delivered the opinion of the Court.
In April of 1972 a three-judge United States District Court for the Southern District of New York declared unconstitutional New York's Mandated Services Act, 1970 N. Y. Laws, ch. 138, which authorized fixed payments to nonpublic schools as reimbursement for the cost of certain recordkeeping and testing services required by state law. Committee for Public Education & Religious Liberty v. Levitt, 342 F. Supp. 439. The court’s order permanently enjoined any payments under the Act, including reimbursement for expenses that schools had already incurred in the last half of the 1971-1972 school year. This Court subsequently affirmed that judgment. Levitt v. Committee for Public Education, 413 U. S. 472.
In June 1972 the New York State Legislature responded to the District Court’s order by enacting ch. 996 of the 1972 N. Y. Laws. The Act “recognize [d] a moral obligation to provide a remedy whereby . . . schools may recover the complete amount of expenses incurred by them prior to June thirteenth [, 1972,] in reliance on” the invalidated ch. 138, and conferred jurisdiction on the New York Court of Claims “to hear, audit and determine” the claims of nonprofit private schools for such expenses. Thus the Act explicitly authorized what the District Court’s injunction had prohibited: reimbursement to sectarian schools for their expenses of performing state-mandated services through the 1971-1972 academic year.
The appellee, Cathedral Academy, sued under ch. 996 in the Court of Claims, and the State defended on the ground that the Act was unconstitutional. The Court of Claims agreed that ch. 996 violated the First and Fourteenth Amendments, and dismissed Cathedral Academy’s suit. 77 Misc. 2d 977, 354 N. Y. S. 2d 370. The Appellate Division affirmed, 47 App. Div. 2d 390, 366 N. Y. S. 2d 900, but the New York Court of Appeals, adopting a dissenting opinion in the Appellate Division, reversed and remanded the case to the Court of Claims for determination of the amount of the Academy’s claim. 39 N. Y. 2d 1021, 355 N. E. 2d 300. An appeal was taken to this Court, and we postponed further consideration of the question of our appellate jurisdiction until the hearing on the merits. 429 U. S. 1089. We conclude that the Court of Appeals’ decision finally determined the federal constitutional issue and is ripe for appellate review in this Court under 28 U. S. C. § 1257 (2).
I
The state courts and the parties have all considered this case to be controlled by the principles established in Lemon v. Kurtzman, 411 U. S. 192 (Lemon II), which concerned the permissible scope of a Federal District Court’s injunction forbidding payments to sectarian schools under an unconstitutional state statute. Previously in that same litigation we had declared unconstitutional a Pennsylvania statute authorizing payments to sectarian schools for specific secular services provided under contract with the State, and remanded the case to the trial court for entry of an appropriate decree. Lemon v. Kurtzman, 403 U. S. 602 (Lemon I). On remand, the District Court enjoined payments under the statute for any services performed after the date of this Court’s decision, but did not prohibit payments for services provided before that date. 348 F. Supp. 300, 301 n. 1 (ED Pa.). In Lemon II this Court affirmed the trial court’s denial of retroactive injunctive relief against the State, noting that “in constitutional adjudication as elsewhere, equitable remedies are a special blend of what is necessary, what is fair, and what is workable.” 411 U. S., at 200 (footnote omitted).
The primary constitutional evil that the Lemon II injunction was intended to rectify was the excessive governmental entanglement inherent in Pennsylvania’s elaborate procedures for ensuring that “educational services to be reimbursed by the State were kept free of religious influences.” Id., at 202. The payments themselves were assumed to be constitutionally permissible, since they were not to be directly supportive of any sectarian activities. Because the State’s supervision had long since been completed with respect to expenses already incurred, the proposed payments were held to pose no continued threat of excessive entanglement. Two other problems having “constitutional overtones” — the impact of a final audit and the effect of funding even the entirely nonreligious activities of a sectarian school — threatened minimal harm “only once under special circumstances that will not recur.” Ibid.
In this context this Court held that the unique flexibility of equity permitted the trial court to weigh the “remote possibility of constitutional harm from allowing the State to keep its bargain” against the substantial reliance of the schools that had incurred expenses at the express invitation of the State. The District Court, “applying familiar equitable principles,” could properly decline to enter an injunction that would do little if anything to advance constitutional interests while working considerable hardship on the schools. Cf. Hecht Co. v. Bowles, 321 U. S. 321.
In the present case, however, the District Court did not limit its decree as the court had done in Lemon II, but instead expressly enjoined payments for amounts “heretofore or hereafter expended.” See n. 1, supra (emphasis supplied). The state legislature thus took action inconsistent with the court’s order when it passed ch. 996 upon its own determination that, because schools like the Academy had relied to their detriment on the State’s promise of payment under ch. 138, the equities of the case demanded retroactive reimbursement. To approve the enactment of ch. 996 would thus expand the reasoning of Lemon II to hold that a state legislature may effectively modify a federal court’s injunction whenever a balancing of constitutional equities might conceivably have justified the court’s granting similar relief in the first place. But cf. Wright v. Council of City of Emporia, 407 U. S. 451, 467. This rule would mean that every such unconstitutional statute, like every dog, gets one bite, if anyone has relied on the statute to his detriment. Nothing in Lemon II, whose concern was to “examine the District Court’s evaluation of the proper means of implementing an equitable decree,” 411 U. S., at 200, suggests such a broad general principle.
But whether ch. 996 is viewed as an attempt at legislative equity or simply as a law authorizing payments from public funds to sectarian schools, the dispositive question is whether the payments it authorizes offend the First and Fourteenth Amendments.
II
The law at issue here, ch. 996, authorizes reimbursement for expenses incurred by the schools during the specified time period
“in rendering services for examination and inspection in connection with administration, grading. and the compiling and reporting of the results of tests and examinations, maintenance of records of pupil enrollment and reporting thereon, maintenance of pupil health records, recording of personnel qualifications and characteristics and the preparation and submission to the state of various other reports required by law or regulation.”
It expressly states that the basis for the legislation is the State’s representation in the now invalidated ch. 138 that such expenses would be reimbursed. Thus, while ch. 996 provides for only one payment rather than many, and changes the method of administering the payments, nothing on the face of the statute indicates that payments under ch. 996 would differ in any substantial way from those authorized under ch. 138.
Unlike the constitutional defect in the state law before us in Lemon I, the constitutional invalidity of ch. 138 lay in the payment itself, rather than in the process of its administration. The New York statute was held to be constitutionally invalid because “the aid that [would] be devoted to secular functions [was] not identifiable and separable from aid to sectarian activities.” Levitt v. Committee for Public Education, 413 U. S., at 480. This was so both because there was no assurance that the lump-sum payments reflected actual expenditures for mandated services, and because there was an impermissible risk of religious indoctrination inherent in some of the required services themselves. We noted in particular the “substantial risk that . . . examinations, prepared by teachers under the authority of religious institutions, will be drafted with an eye, unconsciously or otherwise, to inculcate students in the religious precepts of the sponsoring church.” Ibid. Thus it can hardly be doubted that if ch. 996 authorizes payments for the identical services that were to be reimbursed under ch. 138, it is for the identical reasons invalid.
The Academy argues, however, that the Court of Appeals has construed the statute to require a detailed audit in the Court of Claims to “establish whether or not the amounts claimed for mandated services constitute a furtherance of the religious purposes of the claimant.” 47 App. Div. 2d, at 397, 366 N. Y. S. 2d, at 906. This language is said to require the Court of Claims to review in detail all expenditures for which reimbursement is claimed, including all teacher-prepared tests, in order to assure that state funds are not given for sectarian activities. We find nothing in the opinions of the state courts to indicate that such an audit is authorized under ch. 996.
But even if such an audit were contemplated, we agree with the appellant that this sort of detailed inquiry into the subtle implications of in-class examinations and other teaching activities would itself constitute a significant encroachment on the protections of the First and Fourteenth Amendments. In order to prove their claims for reimbursement, sectarian schools would be placed in the position of trying to disprove any religious content in various classroom materials. In order to fulfill its duty to resist any possibly unconstitutional payment, see n. 2, supra, the State as defendant would have to undertake a search for religious meaning in every classroom examination offered in support of a claim. And to decide the case, the Court of Claims would be cast in the role of arbiter of the essentially religious dispute.
The prospect of church and state litigating in court about what does or does not have religious meaning touches the very core of the constitutional guarantee against religious establishment, and it cannot be dismissed by saying it will happen only once. Cf. Presbyterian Church v. Blue Hull Mem. Presb. Church, 393 U. S. 440. When it is considered that ch. 996 contemplates claims by approximately 2,000 schools in amounts totaling over $11 million, the constitutional violation is clear.
For the reasons stated, we hold that ch. 996 is unconstitutional because it will of necessity either have the primary effect of aiding religion, see Levitt v. Committee for Public Education, supra, or will result in excessive state involvement in religious affairs. See Lemon I, 403 U. S. 602.
Ill
But even assuming, as the New York Court of Appeals did, that under Lemon II a degree of constitutional infirmity may be tolerated in a state law if other equitable considerations predominate, we cannot agree that the equities support what the state legislature has done in ch. 996.
In Lemon II the constitutional vice of excessive entanglement was an accomplished fact that could not be undone by enjoining payments for expenses previously incurred. And precisely because past practices had clearly identified permissibly reimbursable secular expenses, an additional single payment was held not to threaten the additional constitutional harm of state support to religious activities. By contrast, ch. 996 amounts to a new and independently significant infringement of the First and Fourteenth Amendments.
Moreover the Academy’s detrimental reliance on the promise of ch. 138 was materially different from the reliance of the schools in Lemon II. Unlike the Pennsylvania schools, the Academy was required by pre-existing state law to perform the services reimbursed under ch. 138. In essence, the Academy could have relied on ch. 138 only by spending its own funds for nonmandated, and perhaps sectarian, activities that it might not otherwise have been able to afford. While this Court has never held that freeing private funds for sectarian uses invalidates otherwise secular aid to religious institutions, see Roemer v. Maryland Public Works Board, 426 U. S. 736, 747, and n. 14 (plurality opinion), it is quite another matter to accord positive weight to such a reliance interest in the balance against a measurable constitutional violation.
Accordingly, the judgment of the New York Court of Appeals is reversed, and the case is remanded to that court for further proceedings not inconsistent with this opinion.
It is so ordered.
The Chief Justice and Me. Justice Rehnquist believe that this case is controlled by the principles established in Lemon v. Kurtzman, 411 U. S. 192 (1973), and would therefore affirm the judgment of the Court of Appeals of New York.
The order permanently enjoined “all persons acting for or on behalf of the State of New York . . . from making any payments or disbursements out of State funds pursuant to the provisions of Chapter 138 of the New York Laws of 1970, in payment for or reimbursement of any moneys heretofore or hereafter expended by nonpublic elementary and secondary schools.” No. 70 Civ. 3251 (June 1, 1972).
At oral argument the Assistant Solicitor General of New York said that the State of New York frequently defends against claims for payment on the ground that the enabling Act authorizing suit in the Court of Claims is unconstitutional.
The dissenting judges in the Court of Appeals voted to affirm on the majority opinion in the Appellate Division. 39 N. Y. 2d, at 1022, 355 N. E. 2d 300. We shall refer to the dissenting opinion of Justice Herlihy in the Appellate Division, 47 App. Div. 2d 396, 366 N. Y. S. 2d 905, adopted by the majority in the Court of Appeals, as the opinion of the Court of Appeals.
It is clear that the New York Court of Appeals has finally determined that under the principles established in Lemon v. Kurtzman, 411 U. S. 192 (Lemon II), the Academy and other schools in similar positions are entitled to prove claims for reimbursement under ch. 996. While the Court of Appeals remanded for an audit in the Court of Claims to determine the amount of the Academy’s claim, and while the precise scope of the audit is unclear, we conclude for the reasons stated in Part II of the text below that no possible developments on remand could sufficiently minimize the risk of future constitutional harm to justify relief even under Lemon IPs balancing of constitutional and equitable considerations. Since further proceedings cannot remove or otherwise affect this threshold federal issue, the Court of Appeals’ decision is final for purposes of review in this Court. See Cox Broadcasting Corp. v. Cohn, 420 U. S. 469, 478-480.
The Court of Claims dismissed the Academy’s claim in part because it found no “enforceable standards or guidelines” in ch. 996 “which would enable this Court to separate and apportion the single per-pupil allotment among the various allowed purposes.” 77 Misc. 2d, at 985, 354 N. Y. S. 2d, at 378. Thus it did not believe that ch. 996 authorized it to reimburse schools only for clearly secular expenses, such as the cost of maintaining attendance and medical records, while refusing payments for other “allowed purposes” such as in-class examinations that this Court had held impermissible. The opinion of the Court of Appeals does not contradict this interpretation.
While the language quoted in the text is somewhat ambiguous, it appears that the Court of Appeals interpreted ch. 996 to require an audit similar to the post-audit contemplated in Lemon II, in which “the burden will be upon the claimant to prove that the items of its claims are in fact solely for mandated services . . . .” 47 App. Div. 2d, at 400, 366 N. Y. S. 2d, at 908. As was made clear in Levitt v. Committee for Public Education, 413 U. S. 472, however, limiting reimbursement to mandated services would not fully address the constitutional objections to ch. 138, since it would provide no assurance against reimbursement for sectarian mandated services. Thus, a post-audit like the one contemplated in Lemon II, which the Court characterized as a “ministerial 'cleanup’ function,” 411 U. S., at 202, would not in this case exclude payments that impermissibly aided religious purposes.
The parties have considered the Academy’s claim a test of the constitutionality of ch. 996. Claims filed by other schools have been stayed in the Court of Claims pending the resolution of this case.
Question: What is the ideological direction of the decision?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
|
songer_initiate
|
B
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff.
Clarence C. JOHNSON, Appellant v. UNITED STATES of America, Appellee.
No. 16063.
United States Court of Appeals District of Columbia Circuit.
Argued April 17,1961.
Decided June 22, 1961.
Petition for Rehearing Denied Aug. 15, 1961.
Mr. Harold F. Golding, Washington, D. C. (appointed by the District Court) for appellant.
Mr. Arnold T. Aikens, Asst. U. S. Atty., with whom Messrs. Oliver Gasch, U. S. Atty., at the time of argument, and Carl W. Belcher, Asst. U. S. Atty., at the time of argument, were on the brief, for appellee. Mr. Donald S. Smith, Asst. U. S. Atty., also entered an appearance for appellee.
Before Wilbur K. Miller, Chief Judge, and Bazelon and Burger, Circuit Judges.
BURGER, Circuit Judge.
Appellant was convicted of “forging and uttering” under 22 D.C.Code § 1401 (1951). At his own request he was tried without a jury. A motion to suppress the victim’s stolen credit card was denied and the appellant contends this was error because the search warrant which authorized search of his dwelling did not describe the credit card but only other stolen articles which were recovered in the search.
A police officer engaged in searching appellant’s bedroom under a warrant which described numerous articles of stolen personal property opened a dresser drawer in the process of search. In the drawer he saw a credit card issued in the name of the complaining witness whose other stolen personal property had just been found in appellant’s possession. With the credit card was a statement from Lansburgh’s Department Store also in the complaining witness’ name. Neither the credit card nor the statement was specified in the warrant.
Appellant contends that it was reversible error for the District Court to refuse to suppress the card and statement as evidence. He argues that the police could not seize the credit card and statement without securing a new warrant as provided by Rule 41(c) Fed.R.Crim.P., 18 U.S.C.A. With the credit card were documents of purchase of merchandise in the name of the same person. Appellant’s brief states that the searching officer “discovered what ostensibly appeared to be forged documents * * An officer engaged in a lawful search is not confined to seizing only those items described in the warrant, especially where the unlisted items seized are instrumentalities of a crime. “The Fourth Amendment provides that the warrant must particularly describe the ‘things to be seized.’ But it is well established that given a lawful search some things may be seized in connection therewith which are not described in the warrant * Palmer v. United States, 1953, 92 U.S. App.D.C. 103, 104, 203 F.2d 66, 67. See also Bryant v. United States, 5 Cir., 1958, 252 F.2d 746. “This Court has frequently recognized the distinction between merely evidentiary materials, on the one hand, which may not be seized either under the authority of a search warrant or during the course of a search incident to arrest, and on the other hand, those objects which may validly be seized including the instrumentalities and means by which a crime is committed * * Harris v. United States, 1947, 331 U.S. 145, 154, 67 S.Ct. 1098, 1103, 91 L.Ed. 1399.
Affirmed.
. Appellant lias been tried and convicted for housebreaking and larceny of the personal property described in the warrant. Johnson v. United States, 110 U.S.App. 193, 290 F.2d 384. After the complaining witness had reported theft of the listed articles he learned that someone had forged his name to purchase agreements and he promptly reported this to the police.
In No. 16073 appellant challenged the validity of the instant search warrant under which certain goods later admitted into evidence were seized. He contended that the warrant was obtained upon information derived in executing an arrest warrant which was based upon a fatally defective complaint. No such contention was advanced in the instant case.
. The warrant included a maroon colored Atlas vacuum cleaner, a black and white Sylvania clock radio, wood cabinet radio, 2 hats, 15 shirts, blue suit, etc.
Question: What party initiated the appeal?
A. Original plaintiff
B. Original defendant
C. Federal agency representing plaintiff
D. Federal agency representing defendant
E. Intervenor
F. Not applicable
G. Not ascertained
Answer:
|
songer_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".
ÆTNA CASUALTY & SURETY CO. v. YEATTS et al.
No. 4404.
Circuit Court of Appeals, Fourth Circuit.
Nov. 10, 1938.
Robert G. Butcher, of Richmond, Va. (Parrish, Butcher & Parrish, of Richmond, Va., on the brief), for appellant.
G. E. Mitchell, Jr., of South Boston, Va., and R. Paul Sanford, of Danville, Va. (Wm. M. Tuck, of South Boston, Va., and A. M. Aiken, of Danville, Va., on the brief), for appellees.
Before NORTHCOTT and SOPER, Circuit Judges, and WEBB, District Judge.
SOPER, Circuit Judge.
The Surety Company, as plaintiff in the District Court, sought a declaratory decree under 28 U.S.C.A. § 400 adjudicating that a policy issued by it to Dr. W. C. Yeatts of Danville, Virginia, did not cover a claim asserted against the physician by the administrator of Elizabeth W. Burton, deceased, in a suit in the Corporation Court of Danville, and that consequently the company was under no obligation to defend and indemnify the' assured against loss arising from the claim. Both parties to the suit in the state court were joined as defendants in the federal court. Pending adjudication the surety prayed the District Court to issue an injunction restraining the defendants from further prosecution of the suit in the state court. After the institution of its suit, the surety moved the District Court to issue the injunction, but after hearing, the court overruled the motion ; and also overruled a motion pursuant to Rule 62(c) of the Rules of Civil Procedure, 28 U.S.C.A. following section 723c, that pending appeal, the parties to the suit in the state court be enjoined from proceeding therein for thirty days. The question now before this court is whether the District Court erred in refusing to issue an injunction as prayed.
The Surety Company agreed in its policy to defend and indemnify the assured against actual loss and expenses not exceeding $5000 resulting from any claim for damages on account of any malpractice, error or mistake committed, or alleged to have been committed by the assured in the practice of his profession during the policy period, excepting where it should have been legally established that the damage was caused by the assured while engaged in or in consequence of the performance of a criminal act. The policy also provided that the assured, whenever required by the company, should aid in securing information and evidence and the attendance of witnesses, but should not voluntarily assume any liability or interfere in any legal proceeding without the written consent of the company previously given; and that if any person should obtain final judgment against the assured because of any such injuries, and execution thereon should be returned unsatisfied, or if such judgment should not be satisfied within thirty days after its rendition, then such person might proceed against the company to recover the amount of the judgment.
The declaration in the suit in the state court filed in August, 1938 was laid in trespass on the case and alleged that on July 1, 1938 the physician performed an operation upon the deceased in a negligent and unsuccessful manner so that peritonitis developed, and death ensued. The nature of the malady from which the deceased was suffering was not set out. Damages were claimed in the sum of $10,000.
The complaint in the case now before us, which was filed on September 12, 1938, charged that on July 1, 1938 the deceased woman visited the office of the physician and requested that he perform an abortion upon her so as to put an end to an existing pregnancy; that in consideration of a fee of $50 he attempted to perform the operation and in consequence thereof, the deceased developed peritonitis and on July 4, 1938 died. Thereafter, it was charged, the doctor paid to the father of the deceased the sum of $495.70 without the knowl-* edge and consent of the Surety Company, with the understanding that this payment would constitute a settlement of all the claims that could be made against him by reason of the death of the deceased, and it was alleged that the successful defense of the action now pending in the state court had been seriously harmed by the payment and that in consequence thereof the right of the physician to protection under the policy had been forfeited.
The Surety Company also asserted in its complaint that it had no liability under the policy in the event that the. death of the deceased resulted from the performance of a criminal abortion; but that the physician had denied that he had performed an abortion and had demanded that the company, by virtue of the provisions of the policy, defend him in the action instituted against him in the state court, at the same time refusing to sign a non-waiver agreement permitting the surety company to defend the action and later contest its liability under the policy. In proof of the charge of criminal abortion, it was alleged that on July 28, 1938 attorneys, acting on behalf of. the administrator of the estate of the deceased, had written to the physician charging that the deceased died as the result of an unlawful and negligent performance of an abortion upon her and had demanded prompt settlement of the claim upon penalty of the institution of a civil action in the amount of $10,000 in the Corporation Court of the City of Danville.
The Surety Company expressly pointed out the difficulty under which it would labor if. it should undertake the defense of the action in the state court in that while it would be to the interest of both parties therein to show that the physician was engaged in the lawful practice of his profession in performing the operation, it would be to the interest of the Surety Company to prove the charge that the deceased died as the fesult of a criminal abortion; and that the difficulty would be increased if the assured, in view of the fact that the amount of-the claim against him exceeds the maximum liability under the policy, should employ counsel on his own account to participate in the defense. Therefore, the Surety Company asserted its right to a decree determining its obligations under the policy, and in the meantime forbidding the prosecution of the suit in the state court.
We shall discuss the questions (1) whether the District Court had jurisdiction to determine the controversy; (2) whether the facts disclose a case proper for the passage of a declaratory decree; and (3), if an affirmative answer should be given to the first two questions, whether the District Court should have issued an injunction as prayed. It is contended that the jurisdictional amount under 28 U.S.C.A. § 41 (1) is lacking because the Surety Company is not obliged to indemnify the insured until a judgment has been rendered against him, and in the meantime the only point to be decided is whether the Surety Company is obligated by its policy to defend the suit in the state court; and there is no showing that the expense involved in the defense would exceed the sum of $3000. But the investigation goes deeper. It is intended to disclose that the Surety Company has no obligation to defend the insured against the claim for $10,000 because he has been guilty of criminal misconduct not covered by the policy. If this is shown, it will be necessarily determined thereby that the Surety Company has no obligation to indemnify him in the event of an adverse decision; and since its obligation to indemnify, if found to exist, extends to the sum of $5,000, the amount in controversy is sufficient. Stephenson v. Equitable Life Assurance Society, 4 Cir., 92 F.2d 406, 407; United States Fidelity & Guaranty Co. v. Pierson, 8 Cir., 97 F.2d 560; Commercial Casualty Ins. Co. v. Humphrey, D.C., 13 F. Supp. 174; Travelers Insurance Co. v. Young, D.C., 18 F.Supp. 450; Builders & Manufacturers Mutual Casualty Co. v. Paquett, D.C., 21 F.Supp. 858.
It is also suggested that true diversity of citizenship does not exist in the federal court although the plaintiff company is a Connecticut corporation and the individual defendants were citizens of Virginia. It is said that the parties should be rearranged, as was done in City of Dawson v. Columbia Ave. Saving Fund, Safe Deposit, Title & Trust Co., 197 U.S. 178, 25 S.Ct. 420, 49 L.Ed. 713, with the insured and the Surety Company on the same side and the claimant on the other, thus placing citizens of the same state on opposite sides of the case and defeating the jurisdiction of the court. It is often true that the interest of the defendant in a suit for damages and the interest of his indemnitor under a policy of insurance are identical, since each desires to defeat the claim; but in this case the Surety Company has raised a question of coverage and its position can be sustained only by a decision hostile to the interests of both the insured and the adverse claimant, and so they were properly joined as parties defendant.
Objections are raised to a decree declaring the rights of the parties, even if the matter lies within the jurisdiction of the court and within the discretion lodged in the court by the statute. The discretion should not be exercised, it is said, for a number of reasons which may be outlined as follows: There is no privity o ^contract between the claimant and the surety, and there is as yet no actual controversy between them. No controversy can arise between them on the facts disclosed unless the claimant obtains a judgment against the doctor in the state court and he fails to satisfy it. Hence that which the surety now seeks is not the decision of an actual controversy, but an opinion upon a hypothetical state of facts which may never come to pass. Moreover, a decision in the suit in the federal court would not necessarily put an end to litigation between all of the parties to the suit, because the surety merely asks the court to say that it has no liability to defend or indemnify the insured, and if it fails to maintain this position, it will still be necessary to try the case between the administrator and the physician in the state court in order to determine the questions of negligence and of damages. Hence a decision of the instant suit may amount only to a piecemeal determination of the questions involved and may interfere with the trial of the preexisting litigation by anticipating a decision of only one of the defenses that may be urged therein. Therefore the questions involved should await the trial of the pending state suit which may put an end to the entire controversy by a decision favorable to the insured; and if the claimant is successful therein, and subsequently makes demand upon the surety, it will have a full and adequate opportunity to set up its defense.
It is no answer to a suit for a declaratory judgment that the plaintiff may have an adequate remedy elsewhere or that he seeks to establish a defense to a pending claim rather than affirmative relief; but it is well established that the benefits of the statute should not be extended unless there is an actual present controversy between the parties, and even then the court should not decide the disputed question if the result would be merely to anticipate the trial of an issue involved in a pending case or to determine the validity of a defense ■which could be tried equally well therein or to try a controversy piecemeal without complete decision of the matters in dispute. Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 57 S.Ct. 461, 81 L.Ed. 617, 108 A.L.R. 1000; Anderson v. Aetna Life Ins. Co., 4 Cir., 89 F.2d 345; Columbian Nat. Life Ins. Co. v. Foulke, 8 Cir., 89 F.2d 261; Stephenson v. Equitable Life Assur. Corp., 4 Cir., 92 F.2d 406; Farm Bureau Mut. Auto. Ins. Co. v. Daniel, 4 Cir., 92 F.2d 838; Aetna Casualty & Surety Co. v. Quarles, 4 Cir., 92 F.2d 321.
Bearing these considerations in mind, we are nevertheless' of the opinion that a case is made on the facts recited for the relief afforded by a declaratory judgment. The immediate question which the surety must decide is whether it is obliged to defend the suit against the insured in the state court. Obviously its decision cannot await the determination of that suit,’nor need the determination of its duty in this respect interfere with the trial of the state suit. An actual controversy as to its contractual duty has arisen between it and the holder of its policy, and hence such a situation exists as is contemplated by the terms of the statute. Moreover, a question of coverage is involved, for the duty to defend and the duty to indemnify are both absolved by criminal conduct on the part of the insured, and this question may not be conclusively decided in the state suit to which the company is not a party, even though it undertakes the defense. See Carpenter v. Edmonson, 5 Cir., 92 F.2d 895. In similar situations it has been held in a number of recent cases that the insurer is entitled to be advised by the court whether or not it is obligated to defend and indemnify the insured against claims upon which suits are threatened or have already been brought. Central Surety & Ins. Corp. v. Caswell, 5 Cir., 91 F.2d 607; Associated Indemnity Corp. v. Manning, 9 Cir., 92 F.2d 168; Western Casualty & Surety Co. v. Beverforden, 8 Cir., 93 F.2d 166; United States Fidelity & Guaranty Co. v. Pierson, 8 Cir., 97 F.2d 560; Ohio Casualty Ins. Co. v. Plummer, D.C., 13 F.Supp. 169; Western Casualty & Surety Co. v. Odom, D.C., 21 F.Supp. 574; Standard Accident Ins. Co. v. Alexander, Inc., D.C., 23 F.Supp. 807; Maryland Casualty Co. v. Tighe, D.C., 24 F.Supp. 49; American Motorists Ins. Co. v. Busch, D.C., 22 F.Supp. 72; Employers’ Liability Assur. Corp. v. C. E. Carnes & Co., D.C., 22 F.Supp. 259; Maryland Casualty Co. v. Hubbard, D.C., 22 F. Supp. 697.
The District Court, therefore, would have been justified in retaining jurisdiction of the instant case in order to determine the question of coverage; but it does not follow that the order of the court appealed from, which overruled the motion for an interlocutory injunction, was incorrect. It is true that injunctions restraining the prosecution of a pending case against an insured have been granted in some instances in connection with suits by an insurer seeking a declaratory judgment of non-coverage, Central Surety & Ins. Corp. v. Caswell, 5 Cir., 91 F.2d 607; Standard Accident Ins. Co. v. Alexander, Inc., D.C., 23 F.Supp. 807; Maryland Casualty Co. v. Tighe, D.C., 24 F.Supp. 49, but in our opinion this course should not be followed in the pending case. We should be guided rather by the principles enunciated in Kline v. Burke Construction Co., 260 U.S. 226, 43 S.Ct. 79, 67 L.Ed. 226, 24 A. L.R. 1077, wherein the court considered the Act of Congress, 28 U.S.C.A. § 379, which provides that the writ of injunction shall not be granted by any court of the United States to stay proceedings in any court of a state, in connection with the statute, 28 U.S.C.A. § 377, which authorizes the federal courts to issue all writs necessary for the exercise of their respective jurisdictions. It was held in substance that while a federal court, which has first acquired jurisdiction of the subject matter •of a cause, may enjoin the parties from proceeding in a state court of concurrent jurisdiction wfiere the effect would b'e to •defeat or impair the jurisdiction of the-federal court, yet there is no basis for such an injunction where the actions in both •cases are in personam and the jurisdiction in one is not affected by the other. In the •latter situation, it was said, the rank and 'authority of both courts are equal and each may proceed without interference from the •other.
This decision rules the application for injunction in the pending case. See, also, Pacific Indemnity Co. v. Hite, D.C., 24 F.Supp. 662. The claimant was completely within his rights in instituting his action for damages in the state court, and that court, of course, had complete and independent jurisdiction to entertain the liti;gation. Even without the prohibition of the federal statute, a federal court possesses no power to interfere with a proceeding in a state tribunal when there is 'no interference with subject matter in the possession of the federal court and no impairment of its jurisdiction. It may be embarrassing for the insurer here either to defend the action in the state court or to decline to do so, but that is a difficulty inherent in the provisions of its policy which requires it to defend the insured generally, but relieves it of the obligation in the event that the insured has been engaged in the commission of a crime. For like reasons, the fear of the insurer, that it may be es-topped from setting up the defense of non-coverage if it defends the suit in the state court, furnishes no reason to restrain the injured party in the exercise of his undoubted right to press the suit against the alleged tort feasor.
Moreover, as we have already shown, the suits respectively pending in the state and federal courts do not cover the same ground. The claimant is not a party to the insurance contract and is not now suing thereon, whereas the insurer bases its suit on the provisions of the policy, confines itself to the question of coverage and does not ask the court to determine the validity of the claim of the administrator of the deceased woman against the physician. Obviously the existence of a controversy between the parties to the insurance policy should not preclude the injured party, a stranger to the contract, from pressing his claim against the insured with all diligence in the state court. Nor will such action on his part interfere with the proceedings in the federal court. In short, each .court may proceed with the case before it without reference to the other, except insofar as a prior decision in one tribunal may constitute res adjudicata on one or more questions involved in a subsequent trial in the other.
The order of the District Court overruling the motion for an interlocutory injunction will be affirmed, and the case remanded for further proceedings in accordance with this opinion.
Affirmed and Remanded.
it was held in Western Casualty & Surety Co. v. Beverforden, 8 Cir., 93 F. 2d 166, that an insurer is not estopped from denying liability to the injured party on a judgment obtained against the insured by merely defending a suit brought by the injured party, if the insurer gives notice before the trial that because of non-coverage, it will not pay the judgment if recovered. Cf. Aetna Life Ins. Co. v. Maxwell, 4 Cir., 89 F. 2d 988.
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:
|
songer_treat
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals.
Evelyn COTTO and Edwin Torres, etc., et al., Plaintiffs, Appellants, v. UNITED STATES of America, Defendant, Appellee.
No. 92-2440
United States Court of Appeals, First Circuit.
Heard May 4, 1993.
Decided May 19, 1993.
Peter John Porrata, Hato Rey, PR, for plaintiffs, appellants.
Fidel A. Sevillano del Rio, Asst. U.S. Atty., with whom Daniel F. Lopez Romo, U.S. Atty., Hato Rey, PR, was on brief, for defendant, appellee.
Before SELYA, Circuit Judge, FEINBERG, Senior Circuit Judge, and STAHL, Circuit Judge.
Of the Second Circuit, sitting by designation.
SELYA, Circuit Judge.
This appeal arises out of an action brought against the United States by family members and personal representatives of an injured minor under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671-2680 (1990). Long after the district court dismissed the case, plaintiffs sought to revivify it but failed. Believing, as we do, that the district court appropriately rebuffed the attempted resurrection, we affirm the judgment below.
I. BACKGROUND
The incident that sparked this case occurred on December 13, 1987, when a small child, Alexis Agosto, caught his hand in a conveyer belt operated by an employee of the United States Department of Agriculture (DOA). On February 24,1989, Agosto’s parents and grandparents filed FTCA claims on Agosto’s and their own behalf. On April 21, DOA responded, requesting medical records, itemized bills, and other details. Plaintiffs retained counsel. On November 29, 1989, their attorney notified DOA that he would supply pictures of Agosto’s injured hand, apparently believing that the photographs would satisfy DOA’s curiosity anent the extent of injury. He was wrong. DOA, unmol-lified, wrote to the lawyer on March 5, 1990, reiterating its need for the information previously requested and mentioning that plaintiffs’ claim forms were incomplete. The letter also stated:
Please bear in mind that the claims must be substantiated and that we must have the information requested before a determination can be made by [the appropriate official]. No further action will be taken on these claims until the information requested has been received (emphasis in original).
Instead of submitting further particulars, plaintiffs brought suit. They alleged, inter alia, that “[n]o affirmative action as to any settlement or responsibility has been taken by [DOA], although a copy of the medical record has been provided to them [sic].” This allegation was seemingly an endeavor to show that, despite the lack of an explicit denial, DOA had implicitly denied plaintiffs’ claim, thus satisfying the FTCA’s exhaustion requirement. See 28 U.S.C. § 2675(a).
The government answered the complaint, asserting inter alia that plaintiffs had yet to file a substantiated, completed administrative claim, and, therefore, had not exhausted their administrative remedy. On August 27, 1990, a magistrate judge stayed proceedings for ninety days to allow plaintiffs a final opportunity “to provide defendant’s claim specialist with the necessary documentation so that defendant may either accept or reject the claim.” The stay proved unproductive. On November 28, 1990, the magistrate convened the next scheduled conference, noted plaintiffs’ counsel’s absence, and reported to the district judge that “the government will shortly move to dismiss the complaint for failure to exhaust administrative remedy.” Even so, some settlement negotiations continued.
To make a tedious tale tolerably terse, the government, prodded by the district judge, moved for dismissal on May 15, 1991. The motion papers averred that plaintiffs had failed to prosecute their claims diligently at either the administrative or judicial levels. Among other things, the government proffered the affidavit of a local DOA staffer attesting to plaintiffs’ failure to perfect their administrative claims. Without waiting for plaintiffs’ objection, the district court dismissed the ease with prejudice under Fed. R.Civ.P. 41(b). Judgment entered on May 28, 1991.
At that point, plaintiffs and their lawyer, figuratively speaking, played the ostrich, burying their heads in the sand and ignoring the adverse judgment. They did not ask that the dismissal be vacated so that their opposition, see supra note 1, might be more fully considered; they did not move for reconsideration of the order; they did not take an appeal; they did not seasonably seek post-judgment relief. Withal, plaintiffs suggest that they continued to pursue negotiations, eventually reaching what plaintiffs’ counsel describes as a tentative agreement (ironically, with the same DOA representative who had executed the aforementioned affidavit) for a $60,000 settlement. They concede, however, that the United States Attorney’s office declined to approve any settlement, presumably because the lawsuit had been dismissed with prejudice. They also concede that they never asked the district court to enforce the supposed settlement. Rather, plaintiffs resumed their struthionine pose. It was not until September 28, 1992 — sixteen months to the day after judgment entered— that they filed a motion under Fed.R.Civ.P. 60(b)(6). The court below denied the motion without fanfare. This appeal followed.
II. ANALYSIS
District courts enjoy considerable discretion in deciding motions brought under Civil Rule 60(b). We review such rulings only for abuse of that wide discretion. See Teamsters, Chauffeurs, Warehousemen & Helpers Union, Local No. 59 v. Superline Transp. Co., 953 F.2d 17, 19 (1st Cir.1992); Rodriguez-Antuna v. Chase Manhattan Bank Corp., 871 F.2d 1, 3 (1st Cir.1989); Ojeda-Toro v. Rivera-Mendez, 853 F.2d 25, 28 (1st Cir.1988).
In this case, plaintiffs’ theory seems to be that, because DOA’s representative continued to negotiate after judgment entered, the lower court should have excused plaintiffs’ failure to appeal or otherwise contest the dismissal. This contention has a variety of flaws. Without endeavoring to cover the waterfront, we offer four reasons why plaintiffs’ theory is unavailing. In the course of that recital, we assume the truth of the fact-specific statements contained in plaintiffs’ motion, but do not credit “bald assertions, unsubstantiated conclusions, periphrastic circumlocutions, or hyperbolic rodomontade.” Superline, 953 F.2d at 18.
First: Rule 60(b) seeks to balance the importance of finality against the desirability of resolving disputes on the merits. See id. at 19. The rule’s first five subsee-tions delineate specific grounds for relief. In keeping with the policy that “there must be an end to litigation someday,” Ackermann v. United States, 340 U.S. 193, 198, 71 S.Ct. 209, 211-212, 95 L.Ed. 207 (1950), the rule imposes a one-year limit on motions that invoke clauses (1) — (3). While this limit does not apply in haec verba to clause (6) — as the rule states, motions invoking clauses (4) — (6) must only “be made within a reasonable time” — clause (6) is designed as a catchall, and a motion thereunder is only appropriate when none of the first five subsections pertain. See Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 863 & n. 11, 108 S.Ct. 2194, 2204 & n. 11, 100 L.Ed.2d 855 (1988); Klapprott v. United States, 335 U.S. 601, 613, 69 S.Ct. 384, 389, 93 L.Ed. 266 (1949); Lubben v. Selective Serv. Sys. Local Bd., 453 F.2d 645, 651 (1st Cir.1972).
Here, plaintiffs’ attempt to garb their motion in the raiment of clause (6) runs aground on the bedrock principle that clause (6)may not be used as a vehicle for circumventing clauses (1) through (5). The essence of plaintiffs’ argument is that, under all the circumstances, their failure to contest the dismissal constituted understandable, ergo, excusable, neglect. On its face, that theory falls squarely within the encincture of Rule 60(b)(1) and, as such, plaintiffs’ motion, filed more than one year after the entry of judgment, was time-barred. See Pioneer Inv. Servs. Co. v. Brunswick Assoc., — U.S. -, -, 113 S.Ct. 1489, 1497, 123 L.Ed.2d 74 (1993) (explaining that, where “a party is partly to blame for the delay,” post-judgment relief “must be sought within one year under subsection (1)”).
Second: Plaintiffs’ belated effort to set aside the adverse judgment also runs afoul of the admonition that Rule 60(b)(6) may not be used to escape the consequences of failure to take a timely appeal. See Ackermann, 340 U.S. at 197-200, 71 S.Ct. at 211-212; Mitchell v. Hobbs, 951 F.2d 417, 420 (1st Cir.1991); Lubben, 453 F.2d at 651; see also Ojedar-Toro, 853 F.2d at 28-29 (collecting cases). In our adversary system of justice, each litigant remains under an abiding duty to take the legal steps that are necessary to protect his or her own interests. See Ackermann, 340 U.S. at 197, 71 S.Ct. at 211. Thus, Rule 60(b)(6) may not be used as a back-door substitute for an omitted appeal, and, in all but the most exceptional circumstances, a party’s neglect to prosecute a ti-meous appeal will bar relief under the rule. See Ackermann, 340 U.S. at 197-202, 71 S.Ct. at 211-213; Mitchell, 951 F.2d at 420; United States v. Parcel of Land, Etc. (Woburn City Athletic Club, Inc.), 928 F.2d 1, 5 (1st Cir.1991); Lubben, 453 F.2d at 651.
There are no sufficiently exceptional circumstances here. To be sure, plaintiffs strive to show the contrary. Citing United States v. Baus, 834 F.2d 1114 (1st Cir.1987), they argue that DOA acted in a Svengali-like manner, lulling them to sleep with settlement songs while the sands of time drained and the appeal period expired. This deception, they say, justifies relief under Rule 60(b)(6). The district court did not agree. Nor do we.
Baus is readily distinguishable. There, defendants (the guarantors of a debt owed to a federal agency) moved, long after the fact, for relief from a judgment entered pursuant to a settlement agreement they had made with the United States. Id. at 1115— 16. We determined that the government had been dilatory in performing its side of the bargain and had probably breached its obligations under the settlement agreement. Id. at 1124-25. We also noted that three Assistant United States Attorneys had assured the defendants that a further judicial determination of indebtedness was necessary before the United States could collect on the guarantees, and that the defendants relied on these assurances. Id. at 1117. In such straitened circumstances, we ruled that the government, by virtue of a combination of dilatory practices, disregard of contractual obligations, and repeated assurances, had so muddied the waters that it “would result in manifest unfairness to deny relief’ under Rule 60(b)(6). Id. at 1128.
The case at bar is far removed from Bans. The plaintiffs’ Rule 60(b)(6) motion makes no claim that, but for some misleading conduct attributable to the government, plaintiffs would have prosecuted a timely appeal. There is nothing in the present record to demonstrate that the government stalled the processing of the claims, breached any promise, or otherwise acted in bad faith; even in this court, plaintiffs do not suggest that the government ever said it would waive the exhaustion requirement or overlook the judgment’s legal effect. There is, moreover, nothing to indicate any kind of impediment to plaintiffs’ ability to protect their legal interests in a timely manner. Unlike in Bans, the plaintiffs instigated the litigation. They knew the status of their claims at all stages. They could have appealed from the entry of judgment, but did not. And, finally, the plaintiffs appreciated the significance of the judgment.
Because plaintiffs advance neither an objectively reasonable basis for not challenging the judgment in a timely manner nor evidence indicating a pattern of affirmative action on the government’s part which would have led a reasonably prudent person to believe that the dismissal order was something other than it was, Bans does not assist their cause. Rather, we think that plaintiffs’ situation is much more akin to Ackermann. After suffering an adverse judgment in denaturalization proceedings and failing to prosecute a timely appeal, Ackermann sought relief under Rule 60(b)(6). 340 U.S. at 194-95, 71 S.Ct. at 209-210. He alleged, inter alia, that he relied upon advice from a government official who assured him there was no need to appeal as he would ultimately be released. See id. at 196, 71 S.Ct. at 210. In affirming the denial of Ackermann’s Rule 60(b)(6) motion, the Court stated:
It is not enough for petitioner to allege that he had confidence in [the government official] ... [A]nything said by [the government official] could not be used to relieve petitioner of his duty to take legal steps to protect his interest in litigation in which the United States was a party adverse to him.
Id. at 197, 71 S.Ct. at 211 (citations omitted). In language which appears patently pertinent to the pitiful predicament of the present plaintiffs, the Court concluded that, since Ackermann had made “a considered choice not to appeal,” he “cannot not be relieved of such a choice because hindsight seems to indicate to him that his decision not to appeal was probably wrong, considering the [final] outcome.” Id. at 198, 71 S.Ct. at 212. So here. Even if plaintiffs reasonably believed that DOA’s representative had authority to negotiate a settlement, this belief in no way gave them an indeterminate carte blanche to ignore the district judge’s entry of a final judgment. See, e.g., Lubben, 453 F.2d at 652 (suggesting that, so long as the decision not to take an appeal was one of unfettered choice and free will, courts should refrain from speculating on the reasons why a laggard party did not seasonably pursue an attack on an adverse judgment).
We will not paint the lily. “[T]o justify relief under subsection (6), a party must show extraordinary circumstances suggesting that the party is faultless in the delay.” Pioneer, — U.S. at -, 113 S.Ct. at 1497. The instant plaintiffs do not qualify under so rigorous a standard. Their unilateral assumption that they could negotiate and settle their claims notwithstanding the court’s decree falls woefully short of establishing either their own lack of fault or the kind of exceptional circumstances necessary for relief under Rule 60(b)(6).
Third: Assuming, for argument’s sake, that plaintiffs’ motion was otherwise within the rule’s purview, it would nevertheless fail on temporal grounds. We explain briefly.
A Rule 60(b)(6) motion “must be made within a reasonable time.” What is “reasonable” depends on the circumstances. Cf, e.g., Sierra Club v. Secretary of the Army, 820 F.2d 513, 517 (1st Cir.1987) (explaining that “reasonableness is a mutable cloud, which is always and never the same”) (paraphrasing Emerson). Thus, a reasonable time for purposes of Rule 60(b)(6) may be more or less than the one-year period established for filing motions under Rule 60(b)(1) — (3). See Planet Corp. v. Sullivan, 702 F.2d 123, 125-26 (7th Cir.1983) (“The reasonableness requirement of Rule 60(b) applies to all grounds; the one year limit on the first three grounds enumerated merely specifies an outer boundary.”).
Here, plaintiffs waited sixteen months before filing their motion. This delay — overlong in virtually any event — must be juxtaposed in this case against plaintiffs’ bold assertion that the supposed $60,000 settlement figure was agreed upon “within two months of the entry of the order of dismissal.” Appellants’ Brief at 7. If, as plaintiffs allege, they achieved so prompt a meeting of the minds, there is no valid excuse for having dawdled an additional fourteen months before alerting the district court to the changed circumstances. Such protracted delay scuttles any claim that plaintiffs’ motion was “made within a reasonable time.” See, e.g., Planet Corp., 702 F.2d at 126 (holding, on particular facts, that a six-month delay in making a Rule 60(b)(6) motion was unreasonably dilatory); Central Operating Co. v. Utility Workers of America, AFL-CIO, 491 F.2d 245, 253 (4th Cir.1974) (similar; four-month delay after notice of default judgment). Having failed to move for relief from the judgment within a reasonable time, plaintiffs’ attempt to bootstrap the alleged settlement agreement onto their “exceptional circumstance” argument is futile.
Fourth: An additional precondition to relief under Rule 60(b)(6) is that the movent make a suitable showing that he or she has a meritorious claim or defense. See Superline, 953 F.2d at 20; Woburn City Athletic Club, 928 F.2d at 5. The plaintiffs stumble over this hurdle. Their motion for relief from judgment is utterly silent on the exhaustion issue and the record is devoid of any indication that they, to this day, have ever complied with the FTCA’s administrative claim requirements. Exhaustion of plaintiffs’ administrative remedies is a jurisdictional prerequisite to the prosecution of their FTCA claims. See 28 U.S.C. § 2675(a); see also Swift v. United States, 614 F.2d 812, 814-15 (1st Cir.1980). Thus, notwithstanding plaintiffs’ assertion that they received some settlement offer from DOA, the district court was entitled to conclude “that vacating the judgment [would] be an empty exercise.” Superline, 953 F.2d at 20.
III. CONCLUSION
We are not unsympathetic to plaintiffs’ plight. It appears that a young boy suffered severe injuries; that at least one federal official believes the boy’s claim should be compensated; and that, as matters stand, plaintiffs have quite likely been victimized by a series of blunders on their lawyer’s part (for which they may have a claim against him). But in our adversary system, the acts and omissions of counsel are customarily visited upon the client in a civil case, see, e.g., Link v. Wabash R.R., 370 U.S. 626, 632-34, 82 S.Ct. 1386, 1389-90, 8 L.Ed.2d 734 (1962); United States v. $25,721. 938 F.2d 1417, 1422 (1st Cir.1991); Woburn City Athletic Chib, 928 F.2d at 6; United States v. 3,888 Pounds of Atlantic Sea Scallops, 857 F.2d 46, 49 (1st Cir.1988), and we see no legally cognizable basis for departing from this well-established principle here. On this poorly cultivated record, we cannot say that the district court abused its discretion in refusing to reopen the final judgment.
We do not believe, however, that the lawyer’s conduct should go unremarked. A judge has an abiding obligation to take or initiate appropriate disciplinary measures against a lawyer for unprofessional conduct of which the judge becomes aware. See ABA Code of 'Judicial Conduct Canon 3(D)(2) (1990). We are of the opinion that plaintiffs’ counsel’s handling of this matter before the lower court raises serious questions from start to finish. We therefore direct the district judge to review the record, conduct such further inquiry as he may deem appropriate, and take or initiate such disciplinary action, if any, as is meet and proper, the circumstances considered. The clerk of the district court shall also mail a copy of this opinion (translated into the Spanish language if the district judge believes such translation would be advisable) to each of the plaintiffs, at their respective home addresses. See, e.g., Doyle v. Shubs, 905 F.2d 1, 3 (1st Cir.1990) (per curiam).
Affirmed. Remanded to the district court, with instructions, for consideration of a collateral matter.
. Plaintiffs filed an opposition to the dismissal motion one day after the judge granted the government’s motion but five days before final judgment entered.
. It is transparently clear that the DOA staffer had no authority to settle the claim without the approval of an appropriate Justice Department official or, perhaps, the Secretary of Agriculture. See 28 U.S.C. § 2672 (providing that FTCA settlements in excess of $25,000 may only be effected with the prior written approval of the Attorney General or his designee; providing further that, apart from Justice Department personnel, only "the head of the agency" may serve as the Attorney General’s delegee).
.Plaintiffs’ motion for relief from judgment mentioned the negotiations, but contained no substantiation for the claimed settlement: no confirmatory correspondence, no affidavit from the DOA official who allegedly participated in the negotiations, no affidavit from plaintiffs’ lawyer.
. The rule states:
On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application, or
(6) any other reason justifying relief from the operation of the judgment.
The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment order or proceeding was entered or taken.
Fed.R.Civ.P. 60(b).
. Furthermore, the judgment in Bans entered pursuant to a stipulation; thus, the defendants had no right of direct appeal. After all, a party who has agreed to the entry of a judgment without any reservation may not thereafter seek to upset the judgment, save for lack of actual consent or a failure of subject matter jurisdiction. See Dorse v. Armstrong World Indus., Inc., 798 F.2d 1372, 1375 (11th Cir.1986); 9 James W. Moore et al., Moore's Federal Practice ¶ 203.06 (2d ed. 1993) (“A party that consents to entry of a judgment waives the right to appeal from it.”).
. The motion papers contain no allegation either that the DOA official who ostensibly conducted the negotiations knew about the entry of judgment or that plaintiffs' counsel discussed that subject with DOA personnel.
.'It is beyond peradventure that plaintiffs recognized the import of the order dismissing the case with prejudice. It was for this very reason that plaintiffs, in their opposition to the Rule 41 motion, argued vociferously that they should be allowed to take a voluntary dismissal without prejudice under Rule 41(a)(1) rather than having their case dismissed with prejudice under Rule 41(b). In support of this position, plaintiffs claimed that negotiations were ongoing and settlement was "imminent.” Given these contemporaneous statements, it is disingenuous of plaintiffs’ counsel to suggest that the continuation of settlement negotiations led him to forgo an appeal, thinking that the judgment could not block the realization of a negotiated settlement.
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:
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sc_issue_1
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22
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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.
SHANNON v. UNITED STATES
No. 92-8346.
Argued March 22, 1994
Decided June 24, 1994
Thomas, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O’Connor, Scalia, Kennedy, Souter, and Ginsburg, JJ., joined. Stevens, J., filed a dissenting opinion, in which Blackmun, J., joined, post, p. 588.
Thomas R. Trout, by appointment of the Court, 510 U. S. 943, argued the cause and filed briefs for petitioner.
Amy L. Wax argued the cause for the United States. With her on the brief were Solicitor General Days, Assist ant Attorney General Harris, Deputy Solicitor General Bryson, and Deborah Watson
Peter Margulies filed a brief for the Coalition for the Fundamental Rights of Ex-Patients urging reversal.
Justice Thomas
delivered the opinion of the Court.
In this case, we consider whether a federal district court is required to instruct the jury regarding the consequences to the defendant of a verdict of “not guilty by reason of insanity,” either under the Insanity Defense Reform Act of 1984 or as a matter of general federal practice. We conclude that such an instruction is not required, and therefore affirm.
I
A
Prior to the enactment of the Insanity Defense Reform Act of 1984 (IDRA or Act), 18 U. S. C. §§17, 4241-4247, federal courts generally did not recognize a verdict of “not guilty by reason of insanity” (NGI). Defendants who mounted a successful insanity defense — that is, those who raised a reasonable doubt as to their sanity at the time of the offense — were simply found “not guilty.” See, e. g., United States v. McCracken, 488 F. 2d 406, 409, 418 (CA5 1974); Evalt v. United States, 359 F. 2d 534, 537 (CA9 1966). In addition, there was no general federal civil commitment procedure available to ensure that an insanity acquittee would receive proper care and treatment. Only in the District of Columbia was a defendant who successfully presented an insanity defense to a federal criminal charge subject to a federal commitment process — a process governed by a 1955 congressional enactment. See 69 Stat. 609, as amended, D. C. Code Ann. §24-301 (1981). Elsewhere, federal authorities were forced to rely on the willingness of state authorities to institute civil commitment proceedings. Reliance on state cooperation was “at best a partial solution to a serious problem,” however, and federal courts “[t]ime and again . . . decried this gaping statutory hole.” McCracken, supra, at 417.
Before the IDRA was enacted, the Federal Courts of Appeals generally disapproved of instructing the jury concerning the post-trial consequences of an insanity acquittal. Thus, jurors typically were given no information with regard to what would happen to a defendant acquitted by reason of insanity. The courts in general gave two reasons for disapproving such instructions. First, they pointed out that, given the absence of a federal commitment procedure, the consequences of an insanity acquittal were far from certain. Second, they concluded that such instructions would run afoul of the well-established principle that a jury is to base its verdict on the evidence before it, without regard to the possible consequences of the verdict. See, e. g., McCracken, supra, at 423; Evalt, supra, at 546; United States v. Borum, 464 F. 2d 896, 900-901 (CA10 1972).
The only Court of Appeals to endorse the practice of instructing the jury regarding the consequences of an insanity acquittal was the District of Columbia Circuit. See Lyles v. United States, 254 F. 2d 725 (1957) (en banc), cert. denied, 356 U. S. 961 (1958). In Lyles, the District of Columbia Circuit addressed the jury instruction question in the context of D. C. Code Ann. §24-301 (1951 ed., Supp. V), which, unlike generally applicable federal law, provided for a special verdict of NGI and, as noted above, a civil commitment procedure. The Lyles court recognized the “well established and sound” doctrine “that the jury has no concern with the consequences” of a verdict, but stated that the doctrine “d[id] not apply” to the situation before it. 254 F. 2d, at 728. According to the court, although jurors generally were “aware of the meanings of verdicts of guilty and not guilty,” they were unfamiliar with the meaning of an NGI verdict. Ibid. The court concluded that jurors had “a right to know” the meaning of an NGI verdict “as accurately as [they] kno[w] by common knowledge the meaning of the other two possible verdicts.” Ibid.
The acquittal of John Hinckley on all charges stemming from his attempt on President Reagan’s life, coupled with the ensuing public focus on the insanity defense, prompted Congress to undertake a comprehensive overhaul of the insanity defense as it operated in the federal courts. The result of this effort was the IDRA. In the IDRA, Congress made insanity an affirmative defense to be proved by the defendant by clear and convincing evidence, and created a special verdict of “not guilty only by reason of insanity.” 18 U. S. C. §§ 17 and 4242(b). In addition, Congress filled the “statutory hole” that had been identified by federal courts, see McCracken, supra, by creating a comprehensive civil commitment procedure. §4243. Under that procedure, a defendant found NGI is held in custody pending a court hearing, which must occur within 40 days of the verdict. § 4243(c). At the conclusion of the hearing, the court determines whether the defendant should be hospitalized or released. §§ 4243(d), (e).
B
At about 4 a.m. on August 25,1990, a police officer stopped petitioner Terry Lee Shannon, a convicted felon, on a street in Tupelo, Mississippi. For reasons not explained in the record before us, the officer asked Shannon to accompany him to the station house to speak with a detective. After telling the officer that he did not want to live anymore, Shannon walked across the street, pulled a pistol from his coat, and shot himself in the chest.
Shannon survived his suicide attempt and was indicted for unlawful possession of a firearm by a felon in violation of 18 U. S. C. § 922(g)(1). At trial, he raised the insanity defense, and asked the District Court to instruct the jury that he would be involuntarily committed if the jury returned an NGI verdict. The District Court refused to give Shannon’s proposed charge. Instead, it instructed the jury “to apply the law as [instructed] regardless of the consequence,” and that “punishment . . . should not enter your consideration or discussion.” App. A-27 to A-28. The jury returned a guilty verdict.
The Court of Appeals for the Fifth Circuit affirmed Shannon’s conviction. 981 F. 2d 759 (1993). The court noted that under its pre-IDRA precedent, juries were not to be instructed concerning the consequences of an insanity acquittal. Id., at 761-762 (discussing United States v. McCracken, 488 F. 2d 406 (CA5 1974)). Turning to the text of the IDRA, the court observed that Congress had “said nothing about informing juries of the consequences” of an NGI verdict. 981 F. 2d, at 764. Because there was no “statutory requirement” to the contrary, the court “adhere[d] to the established axiom that it is inappropriate for a jury to consider or be informed about the consequences of its verdict.” Ibid.
We granted certiorari, 510 U. S. 943 (1993), in order to consider whether federal district courts are. required to instruct juries with regard to the consequences of an NGI verdict.
II
It is well established that when a jury has no sentencing function, it should be admonished to “reach its verdict without regard to what sentence might be imposed.” Rogers v. United States, 422 U. S. 35, 40 (1975). The principle that juries are not to consider the consequences of their verdicts is a reflection of the basic division of labor in our legal system between judge and jury. The jury’s function is to find the facts and to decide whether, on those facts, the defendant is guilty of the crime charged. The judge, by contrast, imposes sentence on the defendant after the jury has arrived at a guilty verdict. Information regarding the consequences of a verdict is therefore irrelevant to the jury’s task. Moreover, providing jurors sentencing information invites them to ponder matters that are not within their province, distracts them from their factfinding responsibilities, and creates a strong possibility of confusion. See Pope v. United States, 298 F. 2d 507, 508 (CA5 1962); cf. Rogers, supra, at 40.
Despite these familiar precepts, Shannon contends that an instruction informing the jury of the consequences of an NGI verdict is required under the IDRA whenever requested by the defendant. He also argues that such an instruction is required as a matter of general federal criminal practice. We address each argument in turn.
A
To determine whether Congress intended courts to depart from the principle that jurors are not to be informed of the consequences of their verdicts, we turn first, as always, to the text of the statute. The IDRA refers to the subject of jury instructions only once, and that reference occurs in its description of the possible verdicts a jury may return. Under the Act, “the jury shall be instructed to find . . . the defendant — (1) guilty; (2) not guilty; or (8) not guilty only by reason of insanity.” 18 U. S. C. § 4242(b). The text of the Act gives no indication that jurors are to be instructed regarding the consequences of an NGI verdict. As the court below observed, the Act “leaves the jury solely with its customary determination of guilt or innocence.” 981 F. 2d, at 763. The Act’s text thus gives no support to Shannon’s contention that an instruction informing the jury of the consequences of an NGI verdict is required.
Shannon asserts, however, that an express statutory directive is not necessary because, by modeling the IDRA on D. C. Code Ann. §24-301 (1981), Congress impliedly adopted the District of Columbia Circuit’s decision in Lyles and the practice endorsed by that decision of instructing the jury as to the consequences of an NGI verdict. For this argument he relies on Capital Traction Co. v. Hof 174 U. S. 1, 36 (1899), in which we stated:
“By a familiar canon of interpretation, heretofore applied by this court whenever Congress ... has borrowed from the statutes of a State provisions which had received in that State a known and settled construction before their enactment by Congress, that construction must be deemed to have been adopted by Congress together with the text which it expounded, and the provisions must be construed as they were understood at the time in the State.”
See also Carolene Products Co. v. United States, 323 U. S. 18, 26 (1944) (“[T]he general rule [is] that adoption of the wording of a statute from another legislative jurisdiction carries with it the previous judicial interpretations of the wording”); Cathcart v. Robinson, 5 Pet. 264, 280 (1831). The canon of interpretation upon which Shannon relies, however, is merely a “presumption of legislative intention” to be invoked only “under suitable conditions.” Carotene Products, supra, at 26. We believe that the “conditions” are not “suitable” in this case. Indeed, although Congress may have had the District of Columbia Code in mind when it passed the IDRA, see United States v. Crutchfield, 893 F. 2d 376, 378 (CADC 1990), it did not, in the language of Hof, “borrow” the terms of the IDRA from the District of Columbia Code. Rather, Congress departed from the scheme embodied in D. C. Code Ann. §24-301 in several significant ways.
The IDRA, for example, requires a defendant at trial to prove insanity by clear and convincing evidence, 18 U. S. C. § 17(b); the District of Columbia statute, by contrast, employs a preponderance standard, D. C. Code Ann. § 24 — 301(j). A commitment hearing must be held under the IDRA within 40 days of an NGI verdict, 18 U. S. C. § 4243(c); the period is 50 days under the District of Columbia scheme, D. C. Code Ann. § 24-301(d)(2)(A). Under the IDRA, a defendant whose offense involved bodily injury to another or serious damage to another’s property, or the substantial risk thereof, must demonstrate at the hearing by clear and convincing evidence that he is entitled to release, 18 U. S. C. § 4243(d); under the District of Columbia scheme, an acquittee, regardless of the character of his offense, need only meet the preponderance standard, D. C. Code Ann. § 24-301(k)(3). The IDRA provides that an acquittee, once committed, may be released when he no longer presents a substantial risk of harm to others or to their property, 18 U. S. C. § 4243(f); an acquittee under the District of Columbia system may be released from commitment when he “will not in the reasonable future be dangerous to himself or others,” D. C. Code Ann. §24-301(e). Finally, in the IDRA, Congress rejected the broad test for insanity that had been utilized under the District of Columbia provision, and instead adopted a more restrictive formulation under which a person is deemed insane if he is unable “to appreciate the nature and quality or the wrongfulness of his acts.” 18 U. S. C. § 17(a). We believe that these significant differences between the IDRA and D. C. Code Ann. § 24-301 render the canon upon which Shannon relies inapplicable in this case.
Alternatively, Shannon contends that a provision explicitly requiring the instruction is unnecessary for a different reason: namely, that Congress made its intention to adopt the Lyles practice crystal clear in the IDRA’s legislative history. In particular, Shannon points to the following statement in the Senate Report:
“The Committee endorses the procedure used in the District of Columbia whereby the jury, in a case in which the insanity defense has been raised, may be instructed on the effect of a verdict of not guilty by reason of insanity. If the defendant requests that the instruction not be given, it is within the discretion of the court whether to give it or not.” S. Rep. No. 98-225, p. 240 (1983) (footnotes omitted).
Members of this Court have expressed differing views regarding the role that legislative history should play in statutory interpretation. Compare County of Washington v. Gunther, 452 U. S. 161, 182 (1981) (Rehnquist, J., dissenting) (“[I]t [is] well settled that the legislative history of a statute is a useful guide to the intent of Congress”), with Wisconsin Public Intervenor v. Mortier, 501 U. S. 597, 617 (1991) (Scalia, J., concurring in judgment) (legislative history is “unreliable ... as a genuine indicator of congressional intent”). We are not aware of any case, however (and Shannon does not bring one to our attention), in which we have given authoritative weight to a single passage of legislative history that is in no way anchored in the text of the statute. On its face, the passage Shannon identifies does not purport to explain or interpret any provision of the IDRA. Rather, it merely conveys the Committee’s “endorsement” of the Lyles “procedure” — a procedure that Congress did not include in the text of the Act. To give effect to this snippet of legislative history, we would have to abandon altogether the text of the statute as a guide in the interpretative process. We agree with the District of Columbia Circuit that “courts have no authority to enforce [a] principle] gleaned solely from legislative history that has no statutory reference point.” International Brotherhood of Elec. Workers, Local Union No. 474, AFL-CIO v. NLRB, 814 F. 2d 697, 712 (1987) (emphasis deleted). We thus conclude that there is no support in the Act for the instruction Shannon seeks.
B
Setting the Act aside, Shannon argues that the instruction he proposes is required as a matter of general federal criminal practice. Presumably, Shannon asks us to invoke our supervisory power over the federal courts. According to Shannon, the instruction is necessary because jurors are generally unfamiliar with the consequences of an NGI verdict, and may erroneously believe that a defendant who is found NGI will be immediately released into society. Jurors who are under this mistaken impression, Shannon continues, may also fear that the defendant, if released, would pose a danger to the community. Shannon concludes that such jurors, in order to ensure that the defendant will not be released, may be tempted to return a guilty verdict in a ease in which an NGI verdict would be appropriate.
Even assuming Shannon is correct that some jurors will harbor the mistaken belief that defendants found NGI will be released into society immediately — an assumption that is open to debate — the jury in his case was instructed “to apply the law as [instructed] regardless of the consequence,” and that “punishment... should not enter your consideration or discussion.” App. A-27 to A-28. That an NGI verdict was an option here gives us no reason to depart from “the almost invariable assumption of the law that jurors follow their instructions.” Richardson v. Marsh, 481 U. S. 200, 206 (1987). Indeed, although it may take effort on a juror’s part to ignore the potential consequences of the verdict, the effort required in a case in which an NGI defense is raised is no different from that required in many other situations. For example, if the Government fails to meet its burden of proof at trial, our judicial system necessarily assumes that a juror will vote to acquit, rather than to convict, even if he is convinced the defendant is highly dangerous and should be incarcerated. We do not believe that the situation involving an NGI verdict should be treated any differently.
We also are not persuaded that the instruction Shannon proposes would allay the fears of the misinformed juror about whom Shannon is concerned. “[I]f the members of a jury are so fearful of a particular defendant’s release that they would violate their oaths by convicting [the defendant] solely in order to ensure that he is not set free, it is questionable whether they would be reassured by anything short of an instruction strongly suggesting that the defendant, if found NGI, would very likely be civilly committed for a lengthy period.” United States v. Fisher, 10 F. 3d 115, 122 (CA3 1993), cert. pending, No. 93-7000. An accurate instruction about the consequences of an NGI verdict, however, would give no such assurance. Under the IDRA, a postverdict hearing must be held within 40 days to determine whether the defendant should be released immediately into society or hospitalized. See 18 U. S. C. §§ 4243(c), (d). Thus, the only mandatory period of confinement for an insanity acqúittee is the period between the verdict and the hearing. Instead of encouraging a juror to return an NGI verdict, as Shannon predicts, such information might have the opposite effect — that is, a juror might vote to convict in order to eliminate the possibility that a dangerous defendant could be released after 40 days or less. Whether the instruction works to the advantage or disadvantage of a defendant is, of course, somewhat beside the point. Our central concern here is that the inevitable result of such an instruction would be to draw the jury’s attention toward the very thing — the possible consequences of its verdict— it should ignore.
Moreover, Shannon offers us no principled way to limit the availability of instructions detailing the consequences of a verdict to cases in which an NGI defense is raised. Jurors may be as unfamiliar with other aspects of the criminal sentencing process as they are with NGI verdicts. But, as a general matter, jurors are not informed of mandatory minimum or maximum sentences, nor are they instructed regarding probation, parole, or the sentencing range accompanying a lesser included offense. See United States v. Thigpen, 4 F. 3d 1573, 1578 (CA11 1993) (en banc), cert. pending, No. 93-6747; United States v. Frank, 956 F. 2d 872, 879 (CA9 1991), cert. denied, 506 U. S. 932 (1992). Because it is conceivable that some jurors might harbor misunderstandings with regard to these sentencing options, a district court, under Shannon’s reasoning, might be obligated to give juries information regarding these possibilities as well. In short, if we pursue the logic of Shannon’s position, the rule against informing jurors of the consequences of their verdicts would soon be swallowed by the exceptions.
Finally, Congress’ recent action in this area counsels hesitation in invoking our supervisory powers. As noted above, the IDRA was the product of a thorough and exhaustive review of the insanity defense as used in the federal courts. Given the comprehensive nature of the task before it, Congress certainly could have included a provision requiring the instruction Shannon seeks. For whatever reason, Congress chose not to do so. Under these circumstances, we are reluctant to depart from well-established principles of criminal practice without more explicit guidance from Congress.
Ill
Although we conclude that the IDRA does not require an instruction concerning the consequences of an NGI verdict, and that such an instruction is not to be given as a matter of general practice, we recognize that an instruction of some form may be necessary under certain limited circumstances. If, for example, a witness or prosecutor states in the presence of the jury that a particular defendant would “go free” if found NGI, it may be necessary for the district court to intervene with an instruction to counter such a misstatement. The appropriate response, of course, will vary as is necessary to remedy the specific misstatement or error. We note this possibility merely so that our decision will not be misunderstood as an absolute prohibition on instructing the jury with regard to the consequences of an NGI verdict. Our observations in this regard are not applicable to Shannon’s situation, however, for there is no indication that any improper statement was made in the presence of the jury during his trial.
* * *
Because the District Court properly refused to give the instruction Shannon requested, we affirm.
So ordered.
See also United States v. Brawner, 471 F. 2d 969, 996 (CADC 1972) (en banc); United States v. Cohen, 733 F. 2d 128, 129-131 (CADC 1984) (en banc); United States v. Thigpen, 4 F. 3d 1573, 1576, and n. 1 (CA11 1993) (en banc), cert. pending, No. 93-6747.
Shannon asked the court to give either of the two following instructions: (1) “Tn the event it is your verdict that [Shannon] is not guilty only by reason of insanity, it is required that the Court commit [him]’ or (2) “ ‘[Y]ou should know that it is required that the Court commit [Shannon] to a suitable hospital facility until such time as [he] does not pose a substantial risk of bodily injury to another or serious damage to the property of another.’ ” App. A-22.
In addition to the court below, the Ninth and Eleventh Circuits recently have reaffirmed their pre-IDRA holdings that juries generally should not be instructed concerning the consequences of an insanity acquittal. See United States v. Frank, 956 F. 2d 872, 880-882 (CA9 1991), cert. denied, 506 U. S. 932 (1992); Thigpen, 4 F. 3d, at 1578. The Third Circuit has held that the decision to give such an instruction should be left to “the sound discretion of the trial judge.” United States v. Fisher, 10 F. 3d 115, 122 (1993), cert. pending, No. 93-7000. A panel of the Second Circuit recently divided three ways on the issue. See United States v. Blume, 967 F. 2d 45, 50 (1992) (Newman, J., concurring) (“I believe the instruction should always be given unless the defendant prefers its omission. Judge Winter believes the instruction should normally not be given. Judge Lumbard believes that the decision whether to give the instruction should be left to the discretion of the trial judge”).
Particularly in capital trials, juries may be given sentencing responsibilities. See, e. g., Simmons v. South Carolina, ante, p. 154. It is undisputed that the jury had no such responsibilities in Shannon’s case.
In Rogers, the jury had been deliberating for almost two horn’s without reaching a verdict. After the trial court informed the jury that it would accept a verdict of “Guilty as charged with extreme mercy of the Court,” the jury returned such a verdict within minutes. 422 U. S., at 36-37 (internal quotation marks omitted). We concluded that, instead of giving the jurors information about sentencing (that is, that they could recommend “extreme mercy”), the trial court should have “admoni[shed] [them] that [they] had no sentencing function and should reach [their] verdict without regard to what sentence might be imposed.” Id., at 40.
District of Columbia Code Ann. §24-301 continued to govern the operation of the insanity defense in federal criminal prosecutions in the District of Columbia until the passage of the IDRA. Cf. United States v. Crutchfield, 893 F. 2d 376, 377-379 (CADC 1990) (holding that the IDRA applies prospectively to insanity acquittees committed after its enactment).
Under the District of Columbia system, the courts had defined insanity as either the lack of substantial capacity to conform one’s conduct to the requirements of the law or the lack of substantial capacity to appreciate the wrongfulness of one’s acts. See Brawner, 471 F. 2d, at 973-995.
In addition, we note that the canon upon which Shannon relies is a canon of statutory construction. It stems from the notion that a court, in interpreting “borrowed” statutory language, should apply the same construction to that language that was placed upon it by the courts in the jurisdiction from which it was borrowed. In this case, however, the court in the jurisdiction from which the statutory text was supposedly borrowed — that is, the Lyles court — did not purport to construe the language of the District of Columbia Code provision; rather, in holding that jurors should be informed of the consequences of an NGI verdict, the court appears to have relied on its supervisory power over the Federal District Courts in the District of Columbia. Cf. infra, at 584. Thus, we conclude that the canon is also inapplicable in this case because there was no “known and settled construction,” Capital Traction Co. v. Hof, 174 U. S. 1, 36 (1899), of the statute that Congress could have adopted by virtue of borrowing language from the District of Columbia statutory scheme.
In the court below, Shannon made the additional argument that because Congress filled the “gap” that had been identified by the Federal Courts of Appeals prior to the IDRA with a general federal civil commitment procedure, “the practice announced in Lyles must now be applied nationwide.” 981 F. 2d 759, 763 (CA5 1993). We find this argument (which Shannon makes only implicitly before this Court) unpersuasive. As noted above, although the lack of a federal commitment procedure before the passage of the IDRA was one reason for rejecting a Lyles-type instruction, courts generally, and properly, relied additionally on the principle that juries are not to be concerned with the consequences of their verdicts. This principle is not altered by the fact that Congress established a civil commitment procedure. See Thigpen, 4 F. 3d, at 1577.
We are not convinced that jurors are as unfamiliar with the consequences of an NGI verdict as Shannon suggests. It may have been the case in 1957 that, in contrast to verdicts of guilty and not guilty, “a verdict of not guilty by reason of insanity ha[d] no . . . commonly understood meaning.” Lyles v. United States, 254 F. 2d 725, 728 (CADC 1957) (en banc), cert. denied, 356 U. S. 961 (1958). Today, however, there is no reason to assume that jurors believe that defendants found NGI are immediately set free. See Fisher, 10 F. 3d, at 122 (“[H]ighly publicized cases, such as that involving John Hinckley, have dramatized the possibility of civil commitment following an NGI verdict”). See also Blume, 967 F. 2d, at 54 (Winter, J., concurring in result).
As the court below observed, “a jury could assume that due to overcrowded mental hospitals, strapped social services budgets, sympathetic judges, etc., a defendant will be released after only a short period of commitment. To combat the prospect of early release, the jury could simply opt to find him guilty.” 981 F. 2d, at 763, n. 6. Indeed, depending upon the content of the instruction, information regarding the consequences of an NGI verdict could influence a juror’s decision in countless — and unpredictable — ways. See, e. g., Fisher, supra, at 121-122, and n. 7 (describing various scenarios in which sentencing information could induce compromise verdicts in the NGI context).
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_stpolicy
|
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 state or local law, executive order, administrative regulation, doctrine, or rule of procedure by the court favor the appellant?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
DE KORWIN v. FIRST NAT. BANK OF CHICAGO et al. DE KORWIN v. KOCH et al. DE KORWIN v. PRATT et al.
Nos. 9958-9960.
United States Court of Appeals Seventh Circuit.
Dec. 30, 1949.
Rehearing Denied Feb. 1, 1950.
J. F. Dammann, Chicago, 111., Edward R. Johnston, Chicago, 111., Harold V. Amberg, Chicago, 111., Cranston Spray, ¡Chicago, 111., Winfield T. Durbin, Chicago, 111., David A. Watts, Chicago, 111., Charles T. Martin, Jr., Chicago, 111., for appellant.
Kenneth F. Burgess, Howard Neitzert, Lloyd S. McClelland, Chicago, 111., William G. Blood, Chicago, 111., Thomas Dodd Healy, Chicago, 111., Charles R. Aiken, Chicago, 111., Homer F. Carey, Chicago, 111., Vernon R. Loucks, Chicago, 111., Howard D. Moses, Chicago, 111., for appellee.
Before DUFFY, FINNEGAN and LINDLEY, Circuit Judges.
LINDLEY, Circuit Judge.
The issues presented upon these three appeals are essentially the same, namely, (1), whether plaintiff Margaret De Korwin, individually and as executrix of the will of Joseph De Korwin, deceased, has such an interest in the trust estate of Otto Young, deceased, as justifies her maintenance of the cause of action, and, (2), whether defendant First National Bank of Chicago has been acting as trustee of the estate without 'authority so to do. Each of these questions was resolved in favor of plaintiff by the District Court, which held that plaintiff is devisee of an heir of a vested remainder-man and has standing to maintain the suit; that the trusteeship has become vacant, and that defendant bank should account as a trustee de son tort. The facts essential to a thorough consideration of these questions appear in the District Court’s opinion reported in De Korwin v. First National Bank of Chicago, D.C., 84 F.Supp. 918. Related details appear in the decision of this court in De Korwin v. First National Bank, 7 Cir., 156 F.2d 858. Consequently we shall not reiterate except so far as necessary to clarify our reasons and conclusions.
Appellants’ contention that plaintiff owns no such interest in the estate of Otto Young as endows her with the right to maintain this suit turns upon whether Stanley De-Korwin or Stanley Young, as he was sometimes known, received under the Young will a vested estate. In other words, appellants contend that the District Court erroneously interpreted the sixth clause of Otto Young’s will in concluding that it conferred upon the grandchildren of the testator vested rather than contingent remainders. That clause, insofar as pertinent, reads: “Sixth:—When the last survivor of my daughters shall have deceased and the youngest surviving child of my daughters shall have attained the age of twenty-one (21) years all of said trust estate then remaining in the hands of said trustee shall be divided in equal shares between my grand-children, the surviving issue of any deceased grand-child to stand in the place of and receive the share which such deceased grand-child would have been entitled to receive if then living.”
We are of the opinion that this clause contains no such clear expression of the testator’s intent as to enable a court to say, without resort to precedent or rules of construction, that the remainders thereby created are contingent. On the contrary, since no contingency is expressed in the language of the gift itself, it seems clear that, unless that portion of the clause following the word “grand-children” imports a contingency, the remainders were vested in the testator’s grandchildren at the time of his death.
Although appellants argue that the language “the surviving issue of any deceased grand-child to stand in the place of and receive the share which such deceased grand-child would have been entitled to receive if then living” definitely evinces an intent upon the part of the testator that the gifts to her grandchildren should be contingent upon their surviving the termination of the trust, an examination and analysis of Illinois cases dealing with the effect of language substantially like that quoted impels the conclusion that the contention must be rejected. It is true that, prior to 1915, a number of Illinois cases held that the existence of a clause providing that the children or descendants of a deceased remainderman should take the parent’s share made the remainder contingent. Bates v. Gillett, 132 Ill. 287, 24 N.E. 611; Spendler v. Kuhn, 212 Ill. 186, 72 N.E. 214; Cummings v. Hamilton, 220 Ill. 480, 77 N.E. 264; Brownback v. Keister, 220 Ill. 544, 77 N.E. 75; People v. Byrd, 252 Ill. 223, 97 N.E. 293; Of these, Bates v. Gillett has since been overruled, in part at least; Dustin v. Brown, 297 Ill. 499, 508, 130 N.E. 859; Crowley v. Engelke, 394 Ill. 264, 272, 68 N.E.2d 241, and the extent to which People v. Byrd can be relied upon is somewhat clouded by the fact that the will there involved was construed on the basis of the law of New York rather than that of Illinois, even though the court held the law of the two states to be the same. And that the view expressed in those cases was not then the settled view of the Illinois court seems evident from the decisions in Siddons v. Cockrell, 131 Ill. 653, 23 N.E. 586; Knight v. Pottgieser, 176 Ill. 368, 52 N.E. 934, and Northern Trust Co. v. Wheaton, 249 Ill. 606, 94 N.E. 980, 34 L.R.A.,N.S., 1150, all decided prior to 1915, in which remainders were held vested despite the presence of a clause providing that the children or descendants of a deceased remainderman should take the deceased parent’s share.
Since 1915, we think, the Illinois cases have uniformly held that such a provision as that under discussion does not prevent the remainder from vesting on the death of the testator but rather fixes the conditions upon which divestiture will occur and the executory gift over, i. e., the gift to the descendants of the deceased remainderman —take effect. Remmers v. Remmers, 280 Ill. 93, 117 N.E. 474; McBride v. Clemons, 294 Ill. 251, 128 N.E. 383; Warrington v. Chester, 294 Ill. 524, 128 N.E. 549; Weberpals v. Jenny, 300 Ill. 145, 133 N.E. 62; Boye v. Boye, 300 Ill. 508, 133 N.E. 382; People v. Allen, 313 Ill. 156, 144 N.E. 800; Smith v. Shepard, 370 Ill. 491, 19 N.E.2d 368. See also Hodam v. Jordan, D.C., 82 F.Supp. 183.
Of course the District Court, in construing the Young will, was bound to follow the law of Illinois as last announced by the Supreme Court of that state, Erie Railroad v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487; Vandenbark v. Owens-Illinois Glass Co., 311 U.S. 538, 61 S.Ct. 347, 85 L.Ed. 327. Thus, in determining the effect to be given the clause, “the surviving issue of any deceased grand-child to stand in the place of and receive the share which such deceased grand-child would have been entitled to receive if then living,” we think the court below properly relied on the rule announced in Warrington v. Chester, 294 Ill. 524, 128 N.E. 549, and Smith v. Shepard, 370 Ill. 491, 19 N.E.2d 368, rather than that of People v. Byrd, 253 Ill. 223, 97 N.E. 293. The decisions in those cases, considered in conjunction with the settled Illinois rules preferring vested rather than contingent interests, Riddle v. Killian, 366 Ill. 294, 300, 8 N.E.2d 629, and favoring the early vesting of estates, Murphy v. Westhoff, 386 Ill. 136, 140, 53 N.E.2d 931, led the District Court to the conclusion that the remainders involved in the present case were vested rather than contingent. The same considerations seem to us to require this court to affirm the judgment in that respect.
Appellants strongly urge that the words “would have been entitled to receive if then living” reflect an intent upon the part of the testator to make survivorship a condition of the gift to his grandchildren. We think that the language quoted is merely descriptive of the “share” the surviving issue of a deceased grandchild are to take and that it is just another way of saying that the distribution is to be per stirpes. In this connection, it must be observed that, although substantially identical language was used in the will in Warrington v. Chester, 294 Ill. 524, 526, 128 N.E. 549, the Illinois court failed to adopt the construction now urged by appellants. Nor does the fact that the substitutionary gift is to the “surviving” issue of a deceased grandchild enable us to attribute to the testator an intent to make survivorship a condition precedent in the original gift to his grandchildren, an end which could very easily have been attained by the insertion of the word “surviving” immediately before the word “grand-children”' in the sixth clause.
Appellants argue that to hold the remainders vested is to frustrate the intent of the testator, as evidenced by a consideration of the entire will. They insist that his central purpose was to keep his estate in the hands of his lineal descendants, and point to the provisions of clauses four and five, which provide for disposition of the income from the testamentary trust, as illustrative of such a purpose. But to argue that the testator, because he limited the enjoyment of the trust income to his lineal descendants, intended to follow the same pattern in disposing of the corpus is to indulge, we think, in a non sequitwr. Indeed, the clarity of the language with which the testator expressed his intention to restrict to his lineal descendants the enjoyment of the trust income, in contrast with the language employed by him in disposing of the trust corpus, weighs against appellants’ contention that he was attempting to follow the same scheme in both instances. And finally, it must be remembered that ihe best guide to the testator’s intent is the particular dispositive language used by him. Here, that language, though perhaps not as plain as some might desire, is substantially equivalent to that which Illinois construes as creating a vested remainder, subject to divestiture only by death with issue in the period prior to distribution. Knight v. Pottgieser, 176 Ill. 368, 52 N.E. 934; Warrington v. Chester, 294 Ill. 524, 128 N.E. 549; Smith v. Shepard, 370 Ill. 491, 19 N.E. 2d 368. In the case of Stanley Young, the event upon which divestiture was conditioned never occurred, and his interest in the corpus passed, on his death intestate, to his heirs at law, through one of whom (his father) the present plaintiff claims.
We have remaining for determination the question of the propriety of the District Court’s judgment to the effect that the trusteeship created by Otto Young’s will is vacant and that defendant National Bank and its predecessors should account de son tort.
Otto Young died November 30, 1906, testate, his will having been executed in 1905. Therein he named the First Trust and Savings Bank of Chicago as trustee of his residuary estate. This banking institution had been organized and was then being conducted in behalf of the stockholders and directors of the First National Bank. Young was one of its directors. The purpose of its organization was to provide the First National with a trust department, inasmuch as at that time the power of a national bank to administer trust was questioned. Despite the fact that it was a separate corporate entity organized under the laws of Illinois, the First Trust & Savings was under the same ownership, control and management as the First National. Promptly upon Young’s death, the First Trust entered upon the execution of its powers and duties as trustee under his will and continued so to do until February 11, 1929, when, in accord with Section 12 of the Illinois Banking Act, Ill.Rev.Stat.1949, c. § 12, it 'Consolidated with the Union Trust Company, another Illinois corporation endowed with statutory power to administer trusts. The consolidated corporation, First Union Trust and Savings Bank, continued to administer the trust. It, too, was owned, controlled and managed by the same persons who owned, controlled and managed the First National. On July 17, 1933, pursuant to the authority granted by the McFadden Act, 44 Stat. 1224—1226 as amended, 48 Stat. 190, 12 U.S.C.A. § 34a, the First Union was consolidated with the First National and thence afterward the consolidated bank, the present defendant, the First National, continued to perform the duties of the trustee imposed by the will of Otto Young exactly as had been done by the predecessor corporations.
Under this state of facts, plaintiff contended and the trial court found that when the First Trust was consolidated with the Union Trust Company, the office of trustee, under the terms of the will, thereby automatically became vacant and that the successor, from that time on, acted as trustee de son tort.
No one questions the validity of either of the consolidations or that all assets belonging to the trust estate did in fact pass in each instance to the successor consolidated corporation. It is undisputed also that the consolidation of July 17, 1933, under the McFadden Act, whereby the assets of the First Union Trust and Savings passed to the First National, was approved both by the Auditor of Public Accounts of the State of Illinois and the Comptroller of the Currency of the United States.
The pertinent clause in the will is as follows: “In the event that said trustee shall refuse to qualify or act, or further act, as trustee under this will, for any cause, a successor in trust, or a new trustee, may be appointed by any court of competent jurisdiction * * It is plaintiff’s theory that at the time of the merger in 1929, the original trustee, thereby, as a matter of law, refused “to act” or to “further act” and that, therefore, under the terms of the will, no new authorized trustee could come into existence except by appointment by a court of competent jurisdiction. In other words, plaintiff can not complain, if the contingency mentioned in the will never occurred. That issue, in turn, becomes entirely one of whether, under the pertinent laws, the consolidations mentioned produced a contingency contemplated by the testator in his will, upon the happening of which the office of trustee became vacant. Stated otherwise, a court of equity is without power to appoint a trustee to fill a vacancy under this will if a vacancy never existed.
In an early Illinois decision, Robertson v. City of Rockford, 1859, 21 Ill. 451, the city had authority to lend money to a certain railroad but before the loan had been effectuated the railroad entered into a consolidation. The court held the suit of taxpayers to enjoin the proposed loan to the consolidated corporation to be without merit, saying: “When the legislature by the same act which conferred the power on the city to lend its credit to each of these companies, also empowered them to consolidate their roads, it must have been intended that the power of the city might be exercised after such consolidation, as effectually as before that event occurred.” The same thought persists throughout subsequent Illinois decisions and in the public policy reflected by various acts of the legislature governing corporations and banking and trust companies. Thus, the present Banking Act, enacted in 1887, Illinois Revised Stats. (1947), Chap. \&/z, Sec. 12, is: “Such change of name, place of business, increase or decrease or change of par value of capital stock, increase or decrease of number of directors, managers or trustees, * * * or consolidation of one corporation with another, shall not affect suits pending in which such corporation or corporations shall be parties; nor shall such changes affect causes of action, nor the rights of persons in any particular; nor shall suits brought against such corporation by its former name be abated for that cause.”
A decision typical of the Illinois courts’ reasoning in interpreting this statute is Albers v. McNichols, 301 Ill.App. 551, 23 N.E.2d 220, 222. There, a nonassignable guaranty in favor of one of the constituent banks was held to pass automatically upon consolidation to the consolidated bank, the court saying: “The scheme is that the corporation which is merged with another should lose its identity only so far as its separate existence is concerned and that it should he swallowed, up in the other and become an integral pm't thereof, carrying into the corporation which survived all its rights, powers, liabilities, and assets. * * * The resulting bank is possessed of all the interests of the former banks * * (Emphasis supplied.) See also Scheidel Coil Co. v. Rose, 242 Ill. 484, 90 N.E. 221, and Chicago Title & Trust Co. v. Doyle, 259 Ill. 489, 102 N.E. 790, 47 L.R.A.,N.S., 718. In the first of the two cases last cited the court said: “A new corporation comes into existence having all the property, rights, powers and franchises, and subject to all the duties and obligations, of both the constituent companies.” [242 Ill. 484, 90 N.E. 222.]
The essential, indeed, the decisive thought reflected by legislation and decisions of Illinois is that, though the separate legal existence of a merging corporation may terminate, its corporate powers pass to the consolidated corporation, and its functions are continued in the new corporation of which it is a constituent component part. It is not surprising, therefore, to find the Supreme Court saying, in Chicago Title & Trust Company v. Zinser, 264 Ill. 31, 105 N. E. 718, 719, Ann.Cas.1915D, 931, that where a corporate trustee named in a will is merged with another corporation, the consolidated corporation receives and retains all the property and functions of each of the original corporations which have become integral parts of the new corporation. There Etta Nelson had appointed the Real Estate Title and Trust Company executor of her will and, before her death, that company had been consolidated with the Chicago Title and Trust Company. Pursuant to and in accord with the provisions of the corporation statute of Illinois, which are to all intents and purposes, the same as those of the Banking Act, the consolidated corporation, as executor, sought to procure a decree of specific performance upon a contract belonging to the original executor. Defendant contended that the Chicago Title & Trust Company had no power or authority to act as the testamentary trustee. The court disposed of the contention by saying first: “By the consolidation of the Real Estate Title & Trust Company and the Chicago Title & Trust Company, the original corporations ceased to exist, and the appellee, as the consolidated corporation, acquired and succeeded to all the faculties, property, rights and franchises of its component parts and became subject to all the duties, obligations, and conditions imposed upon them. Robertson v. City of Rockford, 21 Ill. 451; Chicago, Rock Island Pac. RR Co. v. Moffitt, 75 Ill. 524.” Then, after referring to the rule that a trustee may not delegate his authority, the court continued: “The rule, however, cannot be applied to the case of a corporation, because the element of trust in the judgment and discretion of an individual is entirely wanting. A corporation is without personality, and if it is selected as trustee or executor there can be no reliance upon individual discretion or even upon the continuance of the same administration. Etta Nelson, in naming the Real Estate Title & Trust Company as executor and trustee, knew that its directors, officers, and stockholders might change from time to time, and that the statute authorized * * * consolidation of the corporation with any other corporation then existing or that might thereafter be organized. She therefore contemplated that these changes might occur, and that the Real Estate Title & Trust Company might be consolidated with some other corporation such as the Chicago Title & Trust Company, and that it would thereby cease to exist and become a component part of a new corporation. A consolidation took place and a new corporation was created from the original corporations, with an enlarged capital stock and unimpaired franchises. The appellee was entitled to execute the trust, and the chancellor did not err in overruling the demurrer.”
The underlying reason for this decision, obviously, is that every testator is presumed to know that changes in the structure of a corporate trustee may occur and to have contemplated the possibility of consolidation, change of name or other mechanical improvement or modification of the corporate structure. That a testator is bound by such presumption is in accord with the general doctrine that every citizen contracts and conveys property with the knowledge in mind that the government of the sovereignty under which he lives may, within its constitutional limits, authorize changes in the public policy, whether it be determination of the gold content of the dollar or of other matters growing out of the police power of the state or the constitutional power of the United States, in their respective fields. So, when Otto Young executed his will, he knew that the statute of Illinois had authorized consolidation of corporations authorized to administer trusts. Therefore, he contemplated that such consolidation might occur under that statute for, under the law, he was bound so to contemplate. When the original trust company merged with the second company in 1929, each of the merging companies became an integral part of the new corporation which succeeded to all the rights of and became bound to discharge all obligations imposed upon each of the integral component parts.
It is said that the Zinser case is distinguishable from this case. We think it can not be distinguished in underlying principle. True, there the consolidation took place before the decedent died, but, if the consolidated corporation was not a legal continuing existence of the corporate trustee actually named in the will, if it did not stand in its shoes, then the probate court had no authority to designate it as executor, for, under the statutes, that court may name as executor only the person nominated by the testator. If the testator has designated no executor or the one named refuses or fails to act, the probate court can only appoint an administrator with the will annexed. Consequently, the act of the probate court, in designating the successor corporation as trustee, was a recognition of the continued existence of the merging corporation, so far as functions and obligations were concerned, in the new corporation as a part thereof. The provisions of the will in the Zinser case are not precisely the same as those in the present case, so far as naming a trustee is concerned, but the differences are not such as to distinguish the two cases in principle.
The significant thought, as we gather it from the Illinois authorities, is that, upon consolidation of banking corporations and trust companies, the merging corporations, though they cease to exist as individual entities are merged into and become integral parts of the new corporation and that, though they therefore lack formal legal existence, for the purpose of performance of their trust duties and obligations, they remain alive, by permission of the legislative body, in a new corporate entity. In this we are corroborated by then Attorney General Kerner of the State of Illinois, in Illinois Attorney General Reports and Opinions 1934 p. 380. It follows that, inasmuch as the testator was presumed to know that consolidation might occur, he necessarily contemplated that it would occur and that, when consolidation did occur, he intended what the laws says, namely, that the functions of the merging corporations would pass to the new corporation. Therefore the contingency upon the happening of which the right of a chancellor to appoint a trustee would come into existence has never occurred.
Thus far we have dealt only with the effect of the merger of 1929. We pass to the consolidation of the First Union with the First National in 1933, when, pursuant to the McFadden Act, Title 12, U.S.C.A., § 34a, the former merged with the First National. This statute provides that any banking corporation under the laws of any state may be consolidated with national banking organizations located in the same city and that “ * * * the corporate existence of each of the constituent banks and national banking associations participating in such consolidation shall be merged into and continued in the consolidated national banking association and the consolidated association shall be deemed to be the same corporation as each of the constituent institutions.” The statute provides further' that “ * * * such consolidated national banking association, by virtue of such consolidation and without any order or other action on the part of any court or otherwise, shall hold and enjoy the same and all rights of property, franchises, and interests, including appointments, designations, and nominations and all other rights and interests as trustee, executor, administrator, registrar of stocks and bonds, guardian of estates, assignee, receiver, committee of estate of lunatics and in every other fiduciary capacity, in the same manner and to the same extent as sitcli rightsj franchises, and interests were held or enjoyed by any such constituent institution ■ at the time of such consolidation”. (Emphasis supplied.)
The only restriction is that the act shall not apply' if the consolidation would contravene the laws of the state where the banks are located. Our attention has been directed to no laws of the state of Illinois of which it can be said that such a consolidation contravenes them. Indeed, Illinois had recognized the validity of consolidation of state and national banks prior to enactment of the McFadden Act. Thus, in McRoberts v. Minier, 270 Ill.App. 1, the court said: “The Banking Act of this State, Cahill’s St. ch. 16a, grants to State banks the right to consolidate with each other and also with a national bank upon complying with certain conditions.” And in First National Bank v. Lindberg, 293 Ill.App. 474 at page 481, 12 N.E.2d 917, 920, the court announced: “It does not appear from anything called to our attention that it was necessary to specifically authorize the consolidation of a state bank with a national bank to give effect to the powers and authorities conferred by the national act. Therefore, in the absence of a state statute prohibiting such consolidation, the national act applies and is the basis of the authority for the consolidation.” The Attorney General of Illinois, in his opinions in 1927, said: “ * * * by such consolidation the constituent corporations by operation of law cease to exist and the new corporation accedes to all the rights, property, franchise and interest, including the right of succession as trustee, executor or in any other fiduciary capacity in the same manner and to the same extent as was held and enjoyed by the constituent banks.” We conclude that there is no statute in Illinois which in any wise contravenes such consolidation.
The language of the Act is clear and explicit. Under it the right of the merging bank to act as trustee and its obligations as trustee, are continued in the new corporation “to the same extent and in the same manner” “as they were held and enjoyed by any constituent institution at the time of such consolidation.” Thus, when Otto Young made his will, he was charged with the knowledge not only that a consolidation might occur in Illinois under Illinois law but also that it might occur likewise by virtue of a federal statute thereafter enacted. Having been charged with such notice, he is presumed to have contemplated that, in case of any such consolidation, the duties of the trustee under his will would inevitably pass, as functions of an integral part of the new corporation, to the consolidated corporation and continue in existence in it. We conclude that the court erred in finding that the First National is not the duly authorized qualified trustee under the will of Otto Young, within the testator’s intention and contemplation.
That portion of the judgment declaring the trusteeship vacant, ordering the First National Bank and its predecessors to account as trustees de son tort and appointing “special trustees pendente lite” is reversed with directions to proceed in conformity with the views expressed in this opinion. In all other respects the judgment is affirmed. The costs of this appeal shall be taxed one-half to appellants and one-half to appellees.
Question: Did the interpretation of state or local law, executive order, administrative regulation, doctrine, or rule of procedure by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_respond1_8_3
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "miscellaneous", specifically "fiduciary, executor, or trustee". Your task is to determine which of the following specific subcategories best describes the litigant.
HOOD, Com’r of Banks of North Carolina v. BROWNLEE. In re PATTERSON.
No. 3301.
Circuit Court of Appeals, Fourth Circuit.
Jan. 10, 1933.
"William C. Meekins, of Hendersonville, N. C. (M. M. Redden, of Hendersonville, N. C., on the brief), for appellant.
Thomas H. Franks, of Hendersonville, N. C. (Lipscomb & Lipscomb, of Asheville, N. C., on the brief), for appellee.
Before PARKER and NORTHCOTI, Circuit Judges, and CHESNUT, District Judge.
PARKER, Circuit Judge.
This is a controversy between the trustee of a bankrupt estate and the State Commissioner of Banks, who is in charge of an insolvent bank and has succeeded to its assets. The bankrupt at the time of his adjudication in bankruptcy was indebted to the bank in the sum of $41,250 in excess of the value of the property held as security for the debt. Some time after the adjudication, the trustee in bankruptcy deposited in the bank, which had been designated as a depositary of bankrupt estates, the cash derived from the sale of assets of the bankrupt. Later the bank became insolvent and suspended business, having on deposit to the credit of the trustee in bankruptcy the sum of $15,757.64, which was reduced by collections from the sureties on the bank’s bond to the sum of $5,888.95. On proof of debt in the bankruptcy proceeding by the Commissioner of Banks, the question of the right of set off was raised, the commissioner contending that ha was entitled to set off the $41,250 debt o£ the bankrupt against the $5,888.95 balance on deposit and have claim allowed against the bankrupt estate for the balance, or that he was at least entitled to an order directing that the trustee in bankruptcy be allowed to set off merely the dividends on the claim against the insolvent bank against the dividends due on the claim, against the bankrupt estate. The judge below, after allowing the claim against the bankrupt estate in the sum of $41,250, ordered that no dividend should be paid thereon until other unsecured creditors of the bankrupt should have received in .dividends on their claims pro rata amounts equivalent to a dividend of $5,888.95 on the $41,250' claim- of the bank; and from'this order the Commissioner of Banks has appealed.
The effect of the order appealed from is to deny the light to set off claim against claim or dividend against dividend, and to allow the trustee 'in bankruptcy to set off against the amount to which the Commissioner of Banks may be entitled in dividends from the bankrupt estate the amount due the trustee by the bank as a deposit balance. We have listened with interest to the able argument of counsel for appellant and have carefully considered the authorities cited in his brief, but we think that the action of the learned judge below was correct. The position of the Commissioner of Banks is not different from what that of the bank would have been if insolvency had not occurred; for the receiver of -an insolvent bank, which is the position that the commissioner occupies, merely succeeds to the rights of the bank and has no right with respect to its assets wdiieh the bank itself would not have had. Gardner v. Chicago Title & Trust Co., 261 U. S. 453, 456, 43 S. Ct. 424, 67 L. Ed. 741, 29 A. L. R. 622; Burrowes v. Nimocks (C. C. A. 4th) 35 F.(2d) 152, 159; Schumacher v. Eastern Bank & Trust Co. (C. C. A. 4th) 52 F.(2d) 925, 928 ; 3 R. C. L. 641; Funk v. Young, 138 Ark. 38, 210 S. W. 143, 5 A. L. R. 79; Gilbertson v. Northern Trust Co., 53 N. D. 502, 207 N. W. 42, 42 A. L. R. 1353.
It is perfectly clear that the bank had no right to set off the debt of the bankrupt against the deposit of the trustee, for the reason that the debt due by the bankrupt to the bank and the debt owing by the bank to the trustee on account of the deposit were not mutual debts or credits within the meaning of section 68 of the Bankruptcy Act, 11 USCA § 108; Western Tie & Timber Co. v. Brown, 196 U. S. 502, 25 S. Ct. 339, 49 L. Ed. 571. And see note in 71 A. L. R. at page 806 and cases, there cited. They were not owing by and to the bank “in the same right.” The elaim of the bank arose out of the individual debt of the bankrupt, and the only liability of the trustee with respect thereto was to apply upon it a pro rata portion of the assets of the bankrupt estate under the order of the court of bankruptcy. The liability o-f the bank on the deposit made by the trustee was to the trustee as representative, not of the bankrupt alone, but also of the creditors of the bankrupt estate. If the bankrupt himself had made the deposit with a view of giving the bank a preferential payment on its elaim, the bank would not have had the right of set off. Citizens’ Nat. Bank v. Lineberger (C. C. A. 4th) 45 F.(2d) 522, 529. A fortiori, the bank may not obtain a preference by setting off a debt due by the bankrupt against estate funds deposited by the trustee.
The question that next arises is whether the trustee in bankruptcy may set off the liability of the bank for the balance of the deposit against dividends to which the bank may become entitled on its elaim allowed against the bankrupt estate, which is what the order appealed from virtually allows. As above indicated, we think that he may. the deposit is due by the bank to the trustee as representative of the estate of the bankrupt. Dividends are payable by him in the same capacity. The debts arising out of the deposit and the liability for dividends are, therefore, mutual and in the same right; and there is no reason for denying to the trustee the right of set off. To look at the matter in another way, the bank received funds of the estate when the deposit was made. Now, when its insolvency has precluded the trustee from recovering these funds, it should not receive additional funds by way of dividends until other creditors of the estate have shared on a pro rata basis to an equal extent.
A ease which we regard as “on all fours” with the case at bar is Gardner v. Chicago Title & Trust Co., supra, 261 U. S. 453, 43 S. Ct. 424, 67 L. Ed. 741, 29 A. L. R. 622. In that ease the trustees in bankruptcy had deposited funds belonging to a bankrupt estate in a bank to which the bankrupt was indebted on á note and which had filed a elaim against the estate. The bank later became insolvent. On a petition by the trustee in-bankruptcy to set off the deposit against the claim of the bank, the Supreme Court reversed the aetion of the lower court in denying the set off and authorized the bankruptcy court to withhold dividends on the elaim of the bank until the debt due the trustee on account of the deposit of funds should be repaid. This was precisely what was done in the ease at bar. The court in that ease, speaking through Mr. Justice Holmes, said: “We assume that when money is deposited in a designated bank under § 61 of the Bankruptcy Law of July 1, 1898, c. 541, 30 Stat. 562 [11 USCA § 101], it is deposited as other money is, and becomes the property of the bank, leaving the bank a debtor for the amount. But when this money was deposited with this Bank it seems that the Bank had notice that it was part of a fund appropriated to paying the Coal Company’s debts, of which the note held by the Bank was one. We think that it would be inequitable to allow the Bank to proceed to diminish that fund without accounting for the portion that it had received. When the Bank accepted deposits from a fund against which it had a credit it must be taken to have known that it could not profit by the fact at the expense of other claimants. The Bank knew the whole situation. There is nothing to show that the Trustees of the Coal Company when they made their deposits knew that the Bank held the Coal Company’s note. If they had known this fact it would be going far to say that they altered or eould alter the position of their eestuis que trust for the worse. On the other hand the creditors of the Bank can stand no better than the Bank. The Bankruptcy Court may allow the Bank’s claim for such sum only as may seem to the Court to be owing above the value of the security, § 57e [11 USCA § 93], and may withhold dividends upon that sum until, the debt due to the trustee has been paid. Western Tie & Timber Co. v. Brown, 196 U. S. 502, 511, 25 S. Ct. 339, 49 L. Ed. 571.”
We have carefully examined the case of Peurifoy v. Gamble, 145 S. C. 1, 142 S. E. 788, 71 A. L. R. 783, which denied to the receiver of an insolvent bank the right to set off a deposit made by him in another bank which later became insolvent against dividends due on a claim of the latter bank. But the majority of the Supreme Court of South Carolina refused to follow in that case the decision of the Supreme Court of the United States in Gardner v. Chicago Title & Trust Co., supra, by which we are bound; and the dissenting opinion of Mr. Justice Cothran contains an able discussion of the principles involved with an exhaustive review of the authorities, and, we think, lays down correctly the principle which should be applied in cases such as this.
The trustee’s liability to the bank is not for the face of the claim but for dividends which may be allowed upon it; and it is but equitable that against this liability he bo allowed to set off the deposit which was made by him in the same capacity as that in which he is charged with liability for dividends. There can be no doubt that an individual who had deposited funds in the failed bank would have had the right to set off the deposit against a liability to the bank; and we see no reason why a fiduciary, such as a trustee in bankruptcy, would not have the same right. A receiver who had borrowed from a bank on receiver’s certificates would certainly be allowed to set off a deposit against his liability on the certificates; and the same principle would permit the trustee in bankruptcy to sot off the deposit against dividends.
For the reasons stated, we think that the order appealed from is correct and same will accordingly be affirmed.
Affirmed.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "miscellaneous", specifically "fiduciary, executor, or trustee". Which of the following specific subcategories best describes the litigant?
A. trustee in bankruptcy - institution
B. trustee in bankruptcy - individual
C. executor or administrator of estate - institution
D. executor or administrator of estate - individual
E. trustees of private and charitable trusts - institution
F. trustee of private and charitable trust - individual
G. conservators, guardians and court appointed trustees for minors, mentally incompetent
H. other fiduciary or trustee
I. specific subcategory not ascertained
Answer:
|
songer_r_bus
|
2
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
PAN-AM TRADE & CREDIT CORPORATION et al. v. THE CAMPFIRE et al.
No. 299, Docket 20223.
Circuit Court of Appeals, Second Circuit.
July 12, 1946.
Gay & Behrens, of New York City (Russell C. Gay and Edward J. Behrens, both of New York City, of counsel), for appellants other than United States.
John F. X. McGohey, U. S. Atty., of New York City (Arnold W. Knauth, of New York City, of counsel), for appellant United States.
Hill, Rivkins & Middleton, of New York City (Arthur O. Louis, Robert E. Hill, and Gregory S. Rivkins, all of New'York City, of counsel), for appellees.
Kirlin, Campbell, Hiclcox & Keating, of New York City (L. de Grove Potter, of New York City, of counsel), for Fulton Shipoperators, P. & I. Service, Inc., amicus curia.
Bigham, Englar, Jones & Houston, of New York City (Henry N. Longley and F. Herbert Prem, both of New York City, of counsel), for American Institute of Marine Underwriters, amicus curia.
Before SWAN, CLARK, and FRANK, Circuit Judges.
SWAN, Circuit Judge.
This appeal presents the question whether the Carriage of Goods by Sea Act, 46 U.S.C.A. § 1300 et seq., invalidates a bill of lading provision for pro-rating in case of the partial loss by the carrier of a package to which the statute ascribes a value of $500. We are told that it is a case of first impression.
The facts were stipulated. On July 8, 1943 Pan-Am Trade & Credit Corporation, one of the libellants, delivered to the respondents as common carriers a package of rayon goods to be carried from the port of New York to the port of Guayaquil, Ecuador. The package was consigned to the other libellant, Saman Hnos. The actual value of the package was $1,619.47 but, as the shipper did not declare the value, the carrier’s liability in case of any loss of or damage to the goods was limited by the statute, 46 U.S.C.A. § 1304(5), to an amount not exceeding $500 per package. When discharged from the vessel the package was short nine pieces of rayon, having a value of $676.94 and representing 41.8% of the value of the shipment. The libellants concede that they can recover no more than $500 because of the statute; the respondents contend that their liability is only $209 (41.8% of $500) because of a pro-rating clause in the bill of lading. The district court sustained exceptions to the pro-rata defense set up in the respondents’ answer, and, pursuant to the stipulation, entered a final decree for the libellants in the amount of $500 with interest and costs. The respondents have appealed.
The appellants argue that section 4(5) of the Carriage of Goods by Sea Act, 46 U.S.C.A. § 1304(5), printed in the margin states only a maximum recovery for the loss of goods whose value the shipper has not declared, thus leaving the parties free to contract with respect to a lesser recovery; and that, although the carriers have persistently continued to incorporate the pro-rata clause in their bills of lading issued after enactment of the statute in 1936, no judicial decision, except the one at bar, has ever held the clause invalid. The point as to the carrier’s practice and the absence of judicial authority, both here and in foreign countries whose legislation has adopted the Hague Rules, is well answered by the appellees’ statement that the many suits for partial losses have all been settled by the carriers in order to avoid the test. They say that the appellants will not question this statement, and in fact they have not in their reply briefs. The argument that the statute prescribes only a maximum recovery is met by section 3(8), 46 U.S.C.A. § 1303(8), printed in the margin, which invalidates any clause “lessening” the carrier’s liability “otherwise than as provided in this chapter.” Under section 4(5) the general rule for measuring the carrier’s liability for “any” loss is the “amount of damage actually sustained,” but not to exceed $500 per package unless the shipper has declared the value of the goods before shipment. We agree with the district judge that to give effect to the pro-rata clause would “lessen” the carrier’s liability in a manner not authorized by any provision of “this chapter.”
The appellants’ argument that the shipper cheats the carrier out of an increased freight rate when he fails to declare the value of a package worth more than $500 is without merit. If the shipper is willing to bear the risk of loss above that sum, he is privileged to ship at the normal rate; he owed the carrier no duty to declare the. value and pay a higher rate.
The briefs contain much learning concerning the history of the Hague Rules (1921) and the Brussels Convention (1924) from which stems the Carriage of Goods by Sea Act. The Hague Rules represented a compromise between hull and cargo interests. In a hearing before the United States Shipping Board in September 1922, several eminent members of the Admiralty Bar as representatives of the shipowners declared very definitely that the provision in the Hague Rules corresponding to section 4(5) of the present Act does away with pro-rating. The view' was again expressed in 1925 before the Committee on Merchant Marine and Fisheries of the 68th Congress. At a hearing before the same Committee of the 74th Congress in 1936, Mr. Haight stated that the shippers “get a tremendous advantage in raising the limit per package to $500,” and that “it does mean a great deal” to have the shipowner know “that he cannot limit his liability for less than $5007’ So far as appears no one at any time of these hearings ever expressed a contrary opinion. With this historic background and bearing in mind that the purpose of the legislation was to accomplish “uniformity and agreement with many other nations as to the text of those clauses of ocean bills of lading with which the bill deals,” we think the district court was correct in construing the Act to prohibit a carrier from limiting its liability for a partial loss to a pro-rata share of the statutory limitation of $500 per package prescribed by section 4(5).
Decree affirmed.
“17. In ease of any loss or damage to or in connection with goods exceeding in actual value $500 lawful money of the United States, per package, or in case of goods not shipped in packages, per customary freight unit, the value of the goods shall be deemed to be $500 per package or per unit, on which basis the freight is adjusted and the Carrier’s liability, if any, shall be determined on the basis of a value of $500 per package or per customary freight unit, or pro rata in case of partial loss or damage, unless the nature of the goods and a valuation higher than $500 shall have been declared in writing by the shipper upon delivery to the Carrier and inserted in this bill of lading and extra freight paid if required and in such case if the actual value of the goods per package or per customary freight unit shall exceed such declared value, the value shall nevertheless be deemed to be the declared value and the Carrier’s liability, if any, shall not exceed the declared value and any partial loss or damage shall be adjusted pro rata on the basis of such declared value.
“Whenever the value of the goods is less than $500 per package or other freight unit, their value in the calculation and adjustment of claims for which the Carrier may be liable shall for the purpose of avoiding uncertainties and difficulties in fixing value, be deemed to be the invoice value, plus freight and insurance if paid, irrespective of whether any other value is greater or less.”
“(5) Neither the carrier nor the ship shall in any event be or become liable for any loss or damage to or in connection with the transportation of goods in an amount exceeding $500 per package lawful money of the United States, or in case of goods not shipped in packages, per customary freight unit, or the equivalent of that sum in other currency, unless the nature and value of such goods have boon declared by the shipper before shipment and inserted in the bill of lading. This declaration, if embodied in the bill of lading, shall be prima facie evidence, but shall not bo conclusive on the carrier.
“By agreement between the carrier, master, or agent of the carrier, and the shipper another maximum amount than that mentioned in this paragraph may be fixed: Provided, That such maximum shall not be less than the figure above named. In no event shall the carrier be liable for more than the amount of damage actually sustained.
“Neither the carrier nor the ship shall be responsible in any event for loss or damage to or in connection with the transportation of the goods if the nature or value thereof has been knowingly and fraudulently misstated by the shipper in the bill of lading.”
“ (8) Any clause, covenant, or agreement in a contract of carriage relieving the carrier or the ship from liability for loss or damage to or in connection with the goods, arising from negligence, fault, or failure in the duties and obligations provided in this section, or lessening such liability otherwise than as provided in this chapter or section 25 of Title 49, shall be null and void and of no effect. A benefit of insurance in favor of the carrier, or similar clause, shall be deemed to be a clause relieving the carrier from liability. Apr. 16, 1936, c. 229, § 3, 49 Stat. 1208.”
Bar Association of New York Pamphlet, Vol. 421, Pamphlet 7, pp. 4, 20.
Ibid. p. 67.
Ibid. p. 70.
Senate Report No. 742, 74th. Cong. 1st Sess., May 13, 1935, p. 4.
Question: What is the total number of respondents in the case that fall into the category "private business and its executives"? Answer with a number.
Answer:
|
songer_casetyp1_7-3-4
|
G
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation - bankruptcy, antitrust, securities".
ROBERT DOLLAR CO. v. WENTWORTH SECURITIES CORPORATION.
Circuit Court of Appeals, Ninth Circuit.
January 14, 1929.
No. 5579.
Hugh Montgomery, of San Francisco, Cal., for appellant.
Gavin McNab, Schmulowitz, Wyman, Aikins & Brune, Nat Schmulowitz, and Frederick T. Hyde, all of San Francisco, Cal., for appellee.
Before GILBERT and DIETRICH, Circuit Judges, and NORCROSS, District Judge.
DIETRICH, Circuit Judge.
On June 27, 3923, the appellant entered into a written contract with the appellee, under the terms of which the latter agreed to sell, and the former agreed to buy, 2,000 shares of the preferred capital stock of the Dollar Portland Lumber Company, a corporation. The agreed purchase price was $200,000, “payable in four (4) annual installments of fifty thousand dollars ($50,000) each, on the first days of May, in each of the years 3924 to 1927 inclusive, plus in the ease of each payment to be made hereunder, a sum equal to all unpaid accrued cumulative dividends upon the stock.” Pursuant to the terms of the agreement, the appellee deposited the four certificates for 500 shares each with the Central Trust Company of Illinois, with instructions to deliver one to the appellant when and as each payment was made to it for the account of appellee.
The contract also contains the following provisions: “In the event that default be made in any payment by the purchaser, and said default shall continue for the period of ten (10) days, then and in that event said Bank (the trust company) shall, upon the demand of the Seller, return to the Seller all certificates of stock not theretofore delivered, or as to which said Buyer shall not then be entitled to deliver, but otherwise said Seller shall not be entitled to the redelivery of said stock. * * * Prior to the delivery of any of said stock the Seller shall be entitled to receive any and all dividends declared and paid thereon and to exercise any and all rights of stockholders in connection therewith. * * * In the event that the Buyer default in any payment made on account of the purchase price, the Seller may, at its election, terminate this contract as to the purchase and sale of stock not theretofore delivered and paid for, or at its election may continue this agreement in full force and effect and declare the entire balance of the purchase price immediately duo, owing and unpaid, and sue to collect the balance of the purchase price as declared due.”
Appellant paid the first three installments, but on the 1st day of May, 3.927, refused payment of the last one. Such refusal having continued for a period of ten days, by letter appellee demanded of appellant the sum of $50,000, plus $7,000, which latter amount represented the unpaid accrued cumulative dividends. By the letter appellee further advised appellant that it elected to continue the contract in force and effect and to declare the entire balance of the purchase price immediately due and payable, and further that the remaining certificate for 500 shares would remain on deposit with the trust company under the agreement subject to appellant’s order. No further payment having been made, the seller brought this suit, and from a judgment for $57,000 defendant appeals.
The only contention of appellant was and is that the contract was merely an option whereby it could purchase the stock in controversy at its will. We are of the opinion that a proposition so clearly devoid of merit does not warrant discussion. The contract definitely expresses an absolute obligation to sell and an absolute obligation to buy, and the appellant could not by its own default convert such an agreement into a mere option, without the consent of the appellee.
Affirmed.
The opinion not only failed to include the essential finding, but indicated that the evidence did not justify.
Question: What is the specific issue in the case within the general category of "economic activity and regulation - bankruptcy, antitrust, securities"?
A. bankruptcy - private individual (e.g., chapter 7)
B. bankruptcy - business reorganization (e.g., chapter 11)
C. other bankruptcy
D. antitrust - brought by individual or private business (includes Clayton Act; Sherman Act; and Wright-Patman)
E. antitrust - brought by government
F. regulation of, or opposition to mergers on other than anti-trust grounds
G. securities - conflicts between private parties (including corporations)
H. government regulation of securities
Answer:
|
songer_state
|
11
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the state or territory in which the case was first heard. If the case began in the federal district court, consider the state of that district court. If it is a habeas corpus case, consider the state of the state court that first heard the case. If the case originated in a federal administrative agency, answer "not applicable". Answer with the name of the state, or one of the following territories: District of Columbia, Puerto Rico, Virgin Islands, Panama Canal Zone, or "not applicable" or "not determined".
UNITED STATES of America, Plaintiff-Appellee, v. John Thomas ALLEN et al., Defendants-Appellants.
No. 72-2084
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
Jan. 5, 1973.
Lucian Lamar Sneed, Atlanta, Ga. (Court-Appointed), for defendants-appellants.
John W. Stokes, Jr., U. S. Atty., P. Bruce Kirwan, Asst. U. S. Atty., Atlanta, Ga., for plaintiff-appellee.
Before JOHN R. BROWN, Chief Judge, and GOLDBERG 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.
JOHN R. BROWN, Chief Judge:
Appellants were convicted of willful and knowing possession of an illegal firearm, that is, a double barrel 12 gauge shotgun sawed-off to a total length of less than 26 inches. Appellants complain only of the denial of their motion to suppress. They contend that the discovery of the illegal weapon occurred during an unconstitutional search. Finding their contention to be without merit we affirm the judgment of the District Court.
At approximately 2:30 in the morning of September 30, 1970 officers Williams and Loudermilk were patrolling the Peachtree Circle area of Atlanta. They noticed one of the trio of appellants standing in the office of a service station while another stood just outside the door. There was no car in the service area of the station and the officers circled the block to see if anything was afoot.
While making their second swing past the service station the officers observed that Orr and Sterling who were in the gas station were standing with the receiver of the pay telephone between their heads, and they appeared as if they were talking to someone. The officers also noted a Cadillac automobile parked down Peachtree Circle approximately 300 feet from the service station, far out from the curb. One of the defendants — who was subsequently identified as Allen— was at the wheel.
The officers again circled the block. As they passed the parked car, which they had seen before, they noted the two appellants who had been in the service station were walking toward this car. The service station manager was motioning the officers into the station.
He related to them that although the pair in the service station had acted as though they were speaking to someone, when they hung up the two nickels had returned down the coin chute. He told the officers that the pair were acting “awfully suspicious” and that he thought they were up to something. The officers proceeded to the parked auto and spoke to appellants.
At some time before the two officers approached the Cadillac automobile, they placed a call for assistance. The record does not disclose exactly when this call was placed, but it was before the officers drove their car to the parked Cadillac.
As the officers pulled up behind the automobile they noted that its license tag was expired by over a month. One officer pointed this out to appellant Allen, the driver, who seemed surprised to receive this information. He and the other two appellants and the police officer walked to the back of the car. At this time Detective McConnel who had answered Officer Williams’ call for assistance arrived on the scene. He parked his car on the wrong side of the street, the front bumper of his car against the front bumper of the Cadillac. He got out of the car and began walking towards the rear of the Cadillac where the others stood. At this instant, the officers testified, no one was planning to arrest any of the appellants nor were they being investigated for any particular crime.
As Detective McConnel reached the middle of the Cadillac he stopped and flashed his night light inside the car. He immediately saw the illegal shotgun on the right rear floorboard of the car. Appellants were placed under arrest for possession of an illegal weapon. They now contend that a search occurred and that the search was illegal. We find however that no search occurred since the weapon was in plain view.
If the officers were — as appellants contend — in a position that they had no right to enter save by authority of a warrant or probable cause plus exigent circumstances then a search occurred. Appellants apparently wish us to hold that a police officer must have probable cause before he can begin investigating persons or circumstances which to him appear suspicious. This contention is unacceptable.
In United States v. West, 5 Cir., 1972, 460 F.2d 374, 375-376, the appellant challenged the fruit of a policeman’s observation, of a sawed-off shotgun lying on the floor of an automobile, which occurred during a routine investigation. We held that an officer answering an official call had not only a right but a duty to investigate suspicious circumstances. We phrased it this way. “The local policeman * * * is also in a very real sense a guardian of the public peace and he has a duty in the course of his work to be alert for suspicious circumstances, and, provided that he acts within constitutional limits, to investigate whenever such circumstances indicate to him that he should do so.”
We believe that these Georgia officers would have been derelict in carrying out their appointed duties had they neglected to investigate given all of the circumstances at hand, not the least of which was the cautious patience which on each circling of the block uncovered new suspicious facts.
Answering an official call, Detective McConnel certainly had a right to be in the position from which he discovered the illegal weapon. The shotgun was in plain view from that position. As Judge Goldberg has stated, “the plain view rule does not go into hibernation at sunset,” Marshall v. United States, 5 Cir., 1970, 422 F.2d 185, 189; United States v. Hanahan, 7 Cir., 1971, 442 F.2d 649, nor should we hold that the nighttime, friend as it is to the criminal element, should be made an impenetrable shield behind which criminal activities, though they would be the height of folly in the daytime, are invulnerable.
Our conclusion, that the discovery and seizure of the contraband weapon was justified under our plain view cases, makes it unnecessary to consider whether there existed at the time of the seizure the requisite probable cause plus exigent circumstances necessary to support a search.
Affirmed.
. 26 U.S.C.A. § 5861(d) makes criminal the possession of such a weapon when it is unregistered. The shotgun we are concerned with here was not registered.
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_appbus
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Ezra H. BARNES, Jr., Appellant, v. LITTON INDUSTRIAL PRODUCTS, INC., Appellee, v. SULTAN CHEMISTS, INC., Third-Party Defendants; Samuel HEISLER and Robert S. Whitley, Appellants, v. LITTON INDUSTRIAL PRODUCTS, INC., Appellee, v. SULTAN CHEMISTS, INC., Appellee.
Nos. 76-1398, 76-1831.
United States Court of Appeals, Fourth Circuit.
Argued Dec. 8, 1976.
Decided May 25, 1977.
F. Guthrie Gordon, III, Charlottesville, Va. (John C. Lowe, Lowe & Gordon, Ltd., Charlottesville, Va., on brief), for appellant.
Albert D. Bugg, Jr., Richmond, Va. (Nathan H. Smith, Sands, Anderson & Marks, Richmond, Va., on brief), for appellee.
Before CLARK, Associate Justice, and WINTER and RUSSELL, Circuit Judges.
Associate Justice, Supreme Court of the United States, Retired.
WINTER, Circuit Judge:
In these diversity actions, plaintiffs Barnes, Heisler and Whitley sought damages for loss of sight caused by their drinking “burning alcohol,” a product which is predominantly methanol (wood alcohol), sold by defendant Litton Industrial Products Company. From orders granting summary judgment for defendants, plaintiffs appeal. We affirm in part, reverse in part, and remand.
I.
The district court decided two suits: one, a suit by Barnes against Litton Industrial Products Company, Inc. (Litton), the distributor of the burning alcohol, and the other a suit by Heisler and Whitley against Litton. In both cases, Litton impleaded Sultan Chemists, Inc., the manufacturer of the product. Since the parties agree that the facts and issues in both suits are identical, we consolidated the appeals.
Barnes, Heisler and Whitley were inmates at the State Penal Farm in Gooch-land County, Virginia. The hospital facility at the institution contained a laboratory where a supply of burning alcohol was kept. Burning alcohol is used to fuel bunson burners and for melting wax to form wax bits and rims. The burning alcohol was kept in cylindrical, opaque bottles bearing a label as set forth in the margin. The alcohol was kept under lock and key, but dental assistants (who were prisoners) could request a bottle from stock and had unsupervised access to a bottle in use.
Whitley and Barnes, both dental assistants, learned from a part-time dentist, Dr. Alexander, about a test that Dr. Alexander had utilized when he was in the army to determine whether alcohol products were potable. Using defendants’ product, Dr. Alexander performed a burning test and told them that poisonous alcohol burned yellow and non-poisonous alcohol burned clear blue. On that occasion the product burned blue. Whitley and Barnes thus concluded that the alcohol was safe for consumption. They, along with a third inmate, Heisler, consumed two bottles of the alcohol. All three were totally blinded.
Litton’s sales are almost exclusively to dentists and professional dental laboratories. At its Richmond, Virginia store, where the prison farm made its purchases, only one-tenth of one percent of Litton’s gross sales were made to the general public, and these consisted primarily of nondangerous products such as dental floss. Litton’s policy is that all sales are to be restricted to dentists or dental laboratories, and the sale of burning alcohol to nonprofessionals is strictly prohibited. However, plaintiffs submitted affidavits by three persons who attempted to purchase burning alcohol at the store. Two were successful, both purchasing from the same employee, though in purchasing one stated he was purchasing on his dentist’s account. The third person was told such sales were for dentists and other professionals alone.
In the district court, plaintiffs relied on two theories of recovery: first, that the defendants were liable as a matter of law to the plaintiffs for failure to label the alcohol as required by federal and state laws, and, second, that the defendants violated a common law duty to provide an adequate warning of the dangers of drinking the alcohol. The district court granted summary judgment for defendants holding that, as a matter of law, labeling was not required by federal and state statutory law, there was no duty to warn of the dangers of consuming the alcohol, and even if there was a duty to warn, defendants discharged that duty. Barnes v. Litton Indus. Prods. Co., 409 F.S. 1353 (E.D.Va.1976). While we agree with the district court that defendants breached no duty of labeling imposed by federal or state law, we think that it cannot be said that defendants are entitled to summary judgment as a matter of law on plaintiffs’ claim that defendants violated their common law duty to give adequate warning.
II.
Both the Virginia Hazardous Household Substances Law, Va.Code §§ 3.1-250 to 3.1-261 (Repl.Vol.1973), and the Federal Hazardous Household Substances Act, 15 U.S.C. §§ 1261 to 1274 (1970), require that, under defined circumstances, “hazardous substances” be labeled in a particular fashion.
“Hazardous substances” not properly labeled if “intended, or packaged in a form suitable, for use in the household or by children” become “misbranded hazardous substances.” 15 U.S.C. § 1261(p) (1970); Va.Code § 3.1-250(q) (Repl.Vol.1973). Regulations promulgated pursuant to the federal and state statutes clarify the packaging or type of sale prerequisite for a hazardous substance to become a misbranded hazardous substance, stating
the test shall be whether under any reasonably foreseeable condition of sale, purchase, storage, or use the article may be found in or around a dwelling
and noting the following exception to the labeling requirement
[a]n article labeled as, and marketed solely for, industrial use does not become subject to this act because of the possibility an industrial worker may take a supply for his own use.
16 C.F.R. § 1500.3(c)(10)(i)(1976); see Rules and Regulations for the Enforcement of the Virginia Hazardous Household Substances Law § 1(c) (1968) (almost identical language).
The legislative history of the federal law makes even clearer that its purpose is to require labeling for substances that will in ordinary course be found in homes. See H.R.Rep.1861, 86th Cong., 2d Sess., reprinted in [1960] U.S.Code Cong. & Ad.News, p. 2833, (“The purpose of this bill is to provide nationally uniform requirements for adequate cautionary labeling of packages of hazardous substances which are sold in interstate commerce and are intended or suitable for household use”); H.R.Rep.No.2166, 89th Cong., 2d Sess., reprinted in [1966] U.S.Code Cong. & Ad.News pp. 4095, 4095-96 (passage of act inspired by large number of children injured in the home by coming in contact with these substances).
Since defendant sells burning alcohol only to professional dentists and professional dental laboratories for professional use, and plaintiffs have failed to show, and do not contend they can show, that consumers regularly purchase the alcohol for household use, we agree with the district court that neither federal nor state statutory law requires labeling as a hazardous substance. At best, plaintiffs have shown that, at a representative outlet, only two individuals who sought to purchase burning alcohol for their own use were able to do so. Given this small number of sales, and the fact that the regulations under both federal and state law specifically provide that isolated instances are not sufficient to require labeling, the alcohol was not subject to their requirements as to labeling. We reject plaintiffs’ contention that since the prison is a household and sales are made to a prison, labeling must be required. We do not think sales to a laboratory located in a prison can be considered sales to a household. Even if the prison were a household, plaintiffs have failed to show such sales are significant in number.
III.
In Spruill v. Boyle-Midway, Inc., 308 F.2d 79 (4 Cir. 1962), we agreed with the contention that a manufacturer is liable only for injuries caused in the course of the intended use of its product, but we added:
“Intended use” is but a convenient adaptation of the basic test of “reasonable foreseeability” framed to more specifically fit the factual situations out of which arise questions of a manufacturer’s liability for negligence. “Intended use” is not an inflexible formula to be apodictically applied to every case. Normally a seller or manufacturer is entitled to anticipate that the product he deals in will be used only for the purposes for which it is manufactured and sold; thus he is expected to reasonably foresee only injuries arising in the course of such use.
However, he must also be expected to anticipate the environment which is normal for the use of his product and where, as here, that environment is the home, he must anticipate the reasonably foreseeable risks of the use of his product in such an environment. These are risks which are inherent in the proper use for which his product is manufactured. 308 F.2d at 83-84.
See also Gardner v. Q.H.S., Inc., 448 F.2d 238 (4 Cir. 1971); McClanahan v. California Spray-Chemical Corp., 194 Va. 842, 75 S.E.2d 712 (1953).
The intended use of burning alcohol is not as a beverage, but as a fuel. However, it is well known that alcohol is a component of many beverages, as well as many foods, and many beverages are consumed primarily because of their alcohol content. The label did not warn of the dangers of drinking burning alcohol. It is true, as the district court noted, that the label did state that the alcohol was for use in a torch and it was an adult inmate dental assistant who first drank the alcohol, but it does not follow that plaintiffs were necessarily aware of their peril. Dr. Hurowitz, a dentist at the prison laboratory, did not know whether the substance was potable, and there was evidence from which it could be inferred that Dr. Alexander believed it was potable. If a dentist did not know the danger of ingesting burning alcohol, the knowledge possessed by a technician or untrained assistant in a dental laboratory is even more speculative.
Defendants were bound to know that their product would be used in a dentist’s office or in a dental laboratory, including the laboratory at the prison farm. Indeed, defendants’ label states that the product is “For Professional Dental Use Only.” We think that a jury might reasonably conclude that defendants also knew that access to the product would not be limited to dentists and their trained assistants, but would include some untrained and unsophisticated personnel, including maintenance workers. Because of the word “alcohol” in the label, a jury might well conclude also that the product was an "attractive possibility for beverage purposes for many. In short, we think that it cannot be said that as a matter of law a jury might not conclude that defendants should reasonably have foreseen that an inmate assistant in a penal farm laboratory might attempt to drink a substance so plainly labeled as alcohol and that therefore there was a duty to warn that consumption of the substance could lead to blindness or death and that the warning given by defendants was inadequate. Cf. Olgers v. Sika Chemical Corp., 437 F.2d 90 (4 Cir. 1971).
In disagreement with the district court, we also do not think that Litton can be held as a matter of law to have met any obligation to warn that was imposed on it. Restatement of Torts, 2d 388, Comment n. (1965) (various factors determine whether the means that have been chosen to notify of the harm are sufficient); Weekes v. Michigan Chrome & Chemical Co., 352 F.2d 603 (6 Cir. 1965); Bertone v. Turco Prods., Inc., 252 F.2d 726 (3 Cir. 1958); see also Reeves v. Power Tools, Inc., 474 F.2d 375 (6 Cir. 1973). We therefore reverse the entry of summary judgments for defendants and remand the cases for trial on the plaintiffs’ alleged cause of action that defendants breached a common law duty to warn. We, of course, do not indicate any opinion on the merits, nor do we foreclose the interposition of any defenses such as contributory negligence or intervening cause.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
. BURNING ALCOHOL
FOR USE IN THE ALCOHOL TORCH AND TO FLAME INSTRUMENTS BEFORE USE For Professional Dental Use Only Caution: Federal law prohibits dispensing without a prescription Keep away from open flames and heat
. The district court first granted summary judgment for defendant in Barnes v. Litton Indus. Prods. Co., No. 76-1398, and it is that opinion which was published. The court then granted summary judgment for defendants in No. 76-1831, involving Heisler and Whitley, based upon its decision in Barnes.
. 15 U.S.C. § 1261(f) (1970); Va.Code § 3.1-250(g) (Repl.Vol.1973) set forth definitions of hazardous substances. Under these definitions, burning alcohol is a hazardous substance.
. Dr. Hurowitz stated that burning alcohol was many times ethanol and not methanol. Ethanol, if swallowed, may be intoxicating but is not otherwise harmful.
. Inasmuch as Dr. Hurowitz testified that he did not know whether such alcohol was drinkable and that he was nobody’s boss at the laboratory, this case cannot be decided on the basis of Littlehale v. E. I. duPont de Nemours & Co., 268 F.Supp. 791, 799 (S.D.N.Y.1966), aff’d, 380 F.2d 274 (2 Cir. 1967) (per curiam), and Marker v. Universal Oil Prod. Co., 250 F.2d 603, 606-07 (10 Cir. 1957), since the inherent danger of the product was not equally within the knowledge of the manufacturer and “employer.” Restatement of Torts 2d § 388(b) (1965).
. While we have treated all three plaintiffs alike for the purpose of determining whether summary judgment was appropriate, the record suggests differences in their situations which might preclude recovery by some but not all. For instance, there are statements to the effect that Whitley and Heisler were warned not to drink the substance, but there is no evidence indicating Barnes was given such a warning.
Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number.
Answer:
|
songer_direct1
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for 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.
UNITED STATES of America, Appellant, v. Lucy Thomas POWELL, Nellie Louise Powell and Elmer E. Fox, as Co-Executors under the will and of the Estate of Leonidas Hudson Powell, deceased, Appellees.
No. 6920.
United States Court of Appeals Tenth Circuit.
July 13, 1962.
William Jay Howard, Atty., Dept. of Justice, (Louis F. Oberdorfer, Asst. Atty. Gen., Dept. of Justice, Lee A. Jackson and I. Henry Kutz, Attys., Dept. of Justice, Newell A. George, U. S. Atty., and Robert M. Green, Asst. U. S. Atty., were with him on the brief) for the United States of America.
John F. Eberhardt, Wichita, Kan. (George B. Powers, Carl T. Smith, Stuart R. Carter, Robert C. Foulston, Malcolm Miller, Robert N. Partridge, Robert M. Siefkin, Richard C. Harris and Gerald Sawatzky, Wichita, Kan., were with him on the brief) for appellees.
Before PHILLIPS, PICKETT and LEWIS, Circuit Judges.
PHILLIPS, Circuit Judge.
Lucy Thomas Powell, Nellie Louise Powell and Elmer E. Fox, coexecutors of the estate of Leonidas Hudson Powell, deceased, brought this action against the United States to recover federal estate taxes paid by them on the Powell estate. The action was tried to the court without a jury and judgment was entered in favor of the taxpayers in the sum of $55,-762.46. The United States has appealed.
On June 4, 1932, Leonidas Hudson Powell created an irrevocable living trust. The trust instrument designated Powell and the Fourth National Bank in Wichita as cotrustees. Under it, Powell’s wife is the life tenant and his two daughters are the remaindermen. The income of the trust is payable to the wife at her request, but if not so requested, it is added to the principal. On the death of the wife, the residue of the trust is to be divided into equal shares for the benefit of the two daughters, or their surviving issue, per stirpes. Upon reaching the ages of 37, 47, 52, 57 and 62, each daughter is to receive a one-fifth portion of her share of the trust corpus. The trust also makes provision for alternative dispositions in the event of the death of the daughters without issue prior to final distribution.
Powell died on May 16, 1954. An estate tax return was filed which did not include the assets of the trust in the gross estate. The Commissioner of Internal Revenue assessed a deficiency predicated upon the inclusion of such trust assets in the gross estate, which was paid under protest by the taxpayers. A claim for refund was duly filed, which was disallowed by the Commissioner. The instant action was then commenced.
The trust instrument provides, in part, as follows:
“Second: * * *
“During the lifetime of the grantor and while he is acting as a Joint-Trustee hereunder the said Trustees are expressly authorized and empowered to sell, contract for sale, mortgage, pledge, hypothecate, or otherwise deal with the assets comprising this trust estate, and to invest, or re-invest the said trust property or any part thereof in such securities or other property, real or personal, as in the discretion of said Trustee-may be deemed most advisable for the benefit of the trust estate herein-created, including the right to purchase life insurance, annuity contracts or income bearing contracts, issued by legal reserve life insurance companies authorized to do-business in the State of Kansas.
“Upon the death of the grantor or upon his incapacity to act, or resignation as Joint-Trustee hereunder, thereafter the Trustees shall invest or re-invest only in high grade municipal, Government, or other bonds, or any loans secured by first mortgages on farm lands or improved’ City real estate located in a productive part of the country, such mortgage loans not to exceed forty per cent (40%) of the fair market value of such real estate as in the discretion of the Trustees shall be deemed' most advisable in order to assure a reasonably safe investment, and to produce satisfactory income, the protection of the principal however to be more important than securing: higher rate of income.
# * , •* * * *
“The Trustees of this estate shall not be held responsible for any loss resulting to this trust estate by reason of retaining any previous investments made by the said Trustees while the grantor is acting as one of the Trustees hereunder.
“Fifth: If, at any time during the continuance of this trust, it is necessary or advisable to use some portion of the principal for the maintenance, luelfare, comfort or happiness of the •Grantor’s wife, * * * or Grant- or’s daughters, * * * or for the education of Grantor’s said daughters, the Trustee is hereby authorized and empowered to use so much of the principal as in the discretion of the Trustee is necessary or advisable to be used to meet such conditions, and provided that the Trustee shall deem that the purpose for which the payments are to be made, justifies the reduction in the principal of the trust properties. * * * ” (Emphasis added.)
The trust instrument contained no exculpatory clause, other than that quoted above.
At the time of the creation of the trust, June 4, 1932, the corpus had a value of approximately $60,000. Mr. Powell’s income for each of the years of 1931 and 1932, before taxes, was approximately $100,000 and his net worth in 1932 was-$502,628. Mrs. Powell’s net worth in 1932 was $59,452. In the period between the creation of the trust and Powell’s death, Mrs. Powell withdrew $32,000 of trust income and left the balance of such income in the trust. At the death of Powell, the accumulated and reinvested trust income totalled approximately $210,000 and the value of the trust corpus was approximately $170,000. From time to time during his life Powell made gifts to his wife and daughters from his personal assets, totalling over .$200,000.
The taxpayers called five witnesses, who testified that during his life Powell was an extremely conservative, frugal and thrifty person. In 1940 Powell hired his son-in-law to work in his grain elevator business at a salary of $100 per month. At this time such son-in-law had no outside income and was required to support his family on this amount. Such salary had been raised to $400 per month when the son-in-law left the business in 1945 or 1946.
Powell was 63 years old when he created the trust. He actively engaged in the grain elevator business until 1944, at which time he sold his business and retired. Until a few years before his death, he remained vigorous and actively managed his investments.
In its findings of fact the court, in part, found:
“10. * * * in all of his business, personal, and family affairs Mr. Powell was an extremely conservative, frugal and thrifty person to whom the thought of making distributions to his wife or daughters from the corpus of the June 4, 1932, living trust for the purpose of administering to their subjective pleasures or ‘happiness’ — as distinguished from distributions necessary to maintain them according to the conservative standard of living to which they had been accustomed — would have been repugnant. * * *
“11. * * * that * * * paragraph Fifth of the * * * living trust was intended by the settlor, * * *, to mean only that distributions might be made to his wife and two daughters from the corpus of the trust if, but only if, such use of the corpus were required to maintain them in the conservative mode of living to which they had been accustomed during his lifetime, and that as used by Mr. Powell the word ‘happiness’ in the phrase ‘maintenance, welfare, comfort or happiness’ was intended to and must be equated with basic maintenance and welfare, not with ‘pleasure’ or subjective ‘delight.’ ”
Section 811 of the Internal Revenue Code of 1939, 26 U.S.C.A. § 811, in part provides:
Ҥ 811. Gross estate
“The value of the gross estate of the decedent shall be determined by including the value at the time of his death of all property, real or personal, tangible or intangible, wherever situated, * * *.
******
“(d) Revocable transfers
******
“(2) Transfers on or prior to June 22, 1936. To the extent of any interest therein of which the decedent has at any time made a transfer, by trust or otherwise, where the enjoyment thereof was subject at the date of his death to any change through the exercise of a power, either by the decedent alone or in conjunction with any person, to alter, amend, or revoke, * *
The court concluded that the investment powers and the power to invade the corpus did not reserve to the settlor power to “alter, amend, revoke, or terminate” the trust within the meaning of § 811(d) (2) of the Internal Revenue Code of 1939 and that the deficiency was improperly determined.
The contentions of counsel for the United States are:
1. The decedent’s power to invest in life insurance or annuities constituted power to alter or amend the corpus of the trust, within the meaning of § 811(d) (2);
2. The decedent’s power to invade the trust corpus for the benefit of his family’s “happiness” constituted a power to alter and amend the trust, within the meaning of § 811(d) (2); and
3. The powers retained, if not sufficiently broad individually, were sufficiently extensive cumulatively to require inclusion of the trust corpus in the gross estate.
I
The Investment Powers
It will be observed that the trustees were to exercise their power of investment, including the power to purchase life insurance, annuity contracts, or income bearing contracts in a manner deemed by them in the exercise of their discretion to be for the benefit of the trust estate. It will be further observed that the trust instrument gave the set-tlor no direct power to alter or amend the corpus of the trust or the trust instrument, itself, and if it did give the settlor power to affect beneficial interests, it did so indirectly, as a secondary consequence of the exercise of administrative investment powers. It should be noted, also, that there were no provisions in the trust instrument manifesting an intent to give the trustees broad powers of investment without limitation or restraint, to exculpate them from improper exercise of those powers, to authorize them to act individually, rather than as fiduciaries, in the exercise of such powers, or to prevent a court of equity from reviewing their exercise of such powers and correcting any abuses of discretion.
The trust instrument was executed and was to be carried out in the State of Kansas, for the benefit of persons who were citizens and residents of that state. It was governed, therefore, by Kansas law.
It is well settled, under the law of Kansas, that a court of equity has power to review the exercise of discretionary powers conferred upon trustees and to correct any abuse in the exercise of such discretion. The Supreme Court of Kansas so held in Keeler v. Lauer, 73 Kan. 388, 85 P. 541, 543, with respect to a trust instrument which gave large discretionary powers to the trustee. It reiterated that doctrine in In re Porter’s Estate, 164 Kan. 92, 187 P.2d 520, 525, in which the court said: “Notwithstanding the powers and discretion given to the trustee he is subject to the direction and control of a court of equity, which will have full power to prevent mismanagement of the estate and to correct any abuses of the trust.” Counsel for the United States assert that the investment power, with respect to life insurance, annuities and income bearing contracts, authorized the trustees to invest the corpus so as to deprive the life tenant, the wife, of all income and of all benefits of the trust and, conversely, to invest the corpus in annuities for the term of the wife’s life and thereby deprive the re-maindermen, the daughters, of all benefits of the trust.
In our opinion, the instrument gave the trustees no such unbridled discretionary power or authority. It is well settled that where there are two or more beneficiaries of a trust, it is the duty of the trustee to administer the trust impartially, as between the beneficiaries, and where a trustee under a trust is directed to pay the income to a beneficiary during his life and on his death to pay the income from the trust or the corpus to another beneficiary, it is the duty of the trustee so to administer the trust as to preserve a fair balance between them.
Accordingly, it was the duty of the trustees in the exercise of their discretion to invest the corpus for the benefit of the trust estate and in such a manner as to preserve a fair balance between the life tenant and the remainder beneficiaries. That constituted an ascertainable, external and judicially established standard, enforceable by courts of equity in the exercise of their powers to review the action of trustees in administering trusts. We have no doubt that the courts of Kansas, in the event the trustees under the instant trust so exercised their investment powers partially as between the life tenant and the remainder beneficiaries and so as not to preserve a fair balance between them, would hold that the trustees had abused their discretion and were subject to judicial review and control.
Counsel for the United States rely heavily on State Street Trust Company v. United States, 1 Cir., 263 F.2d 635. That case was predicated upon § 811(c) (1) (B) of the Internal Revenue Code of 1939. It involved three spendthrift trusts, established in 1925. The trusts gave to the trustees these extraordinarily broad powers:
“ * * * to retain and invest and reinvest in securities or properties although of a kind or in an amount which ordinarily would not be considered suitable for a trust investment, including, but without restriction, investments that yield a high rate of income or no income at all and wasting investments, intending hereby to authorize the Trustees to act in such manner as it is believed by them to be for the best interests of the Trust Fund, regarding it as a whole, even though particular investments might not otherwise be proper; * * * to determine what shall be charged or credited to income and what to principal notwithstanding any determination by the courts and specifically, but without limitation, to make such determination in regard to stock and cash dividends, rights, and all other receipts in respect of the ownership of stock and to decide whether or not to make deductions from income for depreciation, amortization or waste and in what amount; * * * and generally to do all things in relation to the Trust Fund which I, the Donor, could do if living and the Trust had not been executed.”
Each contained the following exculpatory clause:
“All such acts and decisions made by the Trustees in good faith shall be conclusive on all parties at interest and my Trustees shall be liable only for their own wilful acts or defaults, but in no case for acts in error of judgment.”
In holding that the trust came within the provisions of § 811(c), the court said:
“Perhaps no single power conferred by the decedent on the trustees would be enough to warrant inclusion of the corpora of the trusts in his estate. But we believe that the powers conferred on the trustees, considered as a whole, are so broad and all inclusive that within any limits a Massachusetts court of equity could rationally impose, the trustees, within the scope of their discretionary powers, could very substantially shift the economic benefits of the trusts between the life tenants and the remaindermen. We therefore conclude that under the trusts the decedent as long as he lived, in substance and effect and in a very real sense, * * * ‘retained for his life * * * the right * * to designate the persons who shall possess or enjoy the property or the income therefrom; * * * ’ ”
The case, in our opinion, is clearly distinguishable on the facts. In that case, the First Circuit held that the powers of the trustees were so broad and all inclusive that they were not within any limitation the Massachusetts court of equity could rationally impose.
In contrast with the broad powers given the trustees in the State Street Trust case, it should be noted that the trust instrument in the instant case did not give the trustees any power to exchange trust property for other property, to invest and reinvest “without restriction” in speculative securities yielding a high rate of income, in “no income” producing securities, or in wasting assets, or to allocate receipts, including stock dividends and stock rights, as between principal and income, nor “generally to do all things in relation to the Trust Fund,” which the settlor “could do if living and the Trust had not been executed,” and in the instant case, the trust instrument did not, as in the State Street Trust case, undertake to exculpate the trustees from liability, other than for wilful acts or defaults.
We conclude the investment power given to the trustees by the trust instrument was subject to and limited by a judicially established and judicially enforceable external and ascertainable-standard and, hence, was no more than-a management or administrative power, and that in exercising it the settlor acted in a fiduciary capacity, as trustee, and not individually.
It follows that the granting of the investment power did not give the settlor power to alter and amend the corpus of the trust, within the meaning of § 811 (d) (2), supra.
II
The Power to Invade the Corpus
The trust instrument gave the trustees power to invade the corpus, if they deemed it necessary or advisable to provide for “the maintenance, welfare, comfort or happiness of the Grantor’s wife, * * * or Grantor’s daughters, * There is nothing in the context in which the term “happiness” is found, or in the instrument as a whole, that indicates an intent that it should be given a broader connotation than its usual and ordinary meaning. Rather, the contrary is indicated by the qualifying language that resort to principal should not be made, unless the need “justifies the reduction in the” corpus.
The usual and ordinary meaning of “happiness” is “a state of well-being characterized by relative permanence.” Webster’s New International Dictionary, Second Ed., Unabridged, p. 1136. It is synonymous with “comfort” or “welfare.” Macmillan’s Modern Dictionary, Rev.Ed.1944; Webster’s New International Dictionary, Second Ed., Unabridged, p. 2900. It is “That more permanent enjoyment of life which attends on, and is almost identical with, welfare.” 39 C.J.S. Happiness p. 773. Webster’s New Collegiate Dictionary, 11th Ed., 1959, p. 375, defines “happy” as “enjoying well-being, peace, and comfort.”
Webster’s New International Dictionary, Second Ed., Unabridged, p. 2900, defines “welfare” as “state or condition in regard to well-being; esp., condition of health, happiness, prosperity, or the like.” In its ordinary sense “happiness” has the characteristic of permanence or endurance, as distinguished from pleasure, which is transitory. Funk & Wag-nail’s Synonyms, Antonyms and Prepositions, Rev.Ed.1947, delineates the objective qualities of “happiness,” as contrasted with “pleasure,” as follows:
“Happiness is * * * more serene and rational than pleasure; pleasure is of necessity transient; happiness is abiding; thus, we speak of pleasures, but the plural of happiness is scarcely used. Happiness, in the full sense, is mental or spiritual or both, and is viewed as resulting from some worthy gratification or satisfaction; we can speak of vicious pleasure or delight, but not of vicious happiness * *
There are many adjudicated cases holding that the terms “happiness,” “welfare,” and “comfort” are synonymous.
It is true that the United States Supreme Court in Merchants Nat. Bank of Boston v. Commissioner, 320 U.S. 256, 64 S.Ct. 108, 88 L.Ed. 35, construed the word “happiness,” as used in the trust there involved, as having a broader meaning than “welfare” and “comfort.” In that case the will authorized the trustee to invade the corpus:
“ * * * at such time or times as my said Trustee shall in its sole discretion deem wise and proper for the comfort, support, maintenance, and/ or happiness of my said wife, and it is my wish and will that in the exercise of its discretion with reference to such payments from the principal of the trust fund to my said wife, * * * my said Trustee shall exercise its discretion with liberality to my said wife, and consider her welfare, comfort and happiness prior to claims of residuary beneficiaries under this trust.”
It is clear, we think, that the court accorded such broader connotation to the word “happiness,” because of the context in which it was found and, particularly, the instructions to the trustee to exercise its discretion with liberality to the wife and to consider her welfare, comfort and happiness prior to the claims of the residuary beneficiaries.
In the opinion the court said:
“ * * * Introducing the element of the widow’s happiness and instructing the trustee to exercise its discretion with liberality to make her wishes prior to the claims of residuary beneficiaries brought into the calculation elements of speculation too large to be overcome, * * *>>
Here, the trust instrument not only did not provide that the power to invade the corpus should be exercised with liberality and to gratify the wishes of the beneficiaries, but, on the contrary, indicated that the power should be exercised with restraint and only when the purpose justified a reduction of the corpus. Of course, the exercise of discretion to invade the corpus with liberality and in accordance with the wishes of a beneficiary is not a power restricted by a fixed standard. Likewise, Henslee v. Union Planters Bank, 335 U.S. 595, 69 S.Ct. 290, 93 L.Ed. 259, is distinguishable from the instant case. There, the will authorized and empowered the trustees to invade or wholly utilize the corpus for the life tenant’s (the mother of the decedent) “pleasure, comfort and welfare” and stated that “The first object to be accomplished * * * is to take care of and provide for my mother in such manner as she may desire” and directed the trustees to manage the estate “primarily for this purpose.”
We are of the opinion that the word “happiness,” in the sense it is used in the trust instrument, is synonymous with “welfare” and “comfort.”
It is well settled that the words “welfare” and “comfort” provide an ascertainable and judicially enforceable external standard.
We conclude that the provisions in the trust instrument giving the trustees power to use the corpus “for the maintenance, welfare, comfort or happiness” of the beneficiaries and for the “education” of the daughters, the remaindermen, “provided * * * the purpose for which the payments are to be made, justifies the reduction in” the corpus, established an ascertainable, external and judicially enforceable standard and that the trustees, in exercising such power, were limited by such standard and the supervision and control of the courts of Kansas in the exercise of their equity powers.
Hence, the authority given the trustees to invade the corpus did not give to the settlor power to alter or amend the trust, within the meaning of § 811(d) (2).
Ill
The Cumulative Effect of Such Powers
In view of the conclusion we have reached, with respect to the investment power and the power to invade the corpus, it is our opinion that their combined or cumulative effect would not bring the trust within § 811(d) (2). Here, the whole is no greater than the sum of its parts.
The judgment is affirmed.
. See Scott on Trusts, 2nd Ed., Vol. II, § 183; Redfield v. Critchley, 252 App.Div. 568, 300 N.Y.S. 305, 310, affirmed, 277 N.Y. 366, 14 N.E.2d 377; Restatement of the Law of Trusts, § 183.
. Pennsylvania Co., Etc. v. Gillmore, 137 N.J.Eq. 51, 43 A.2d 667, 670, 671; Security Trust Co. v. Mahoney, 307 Ky. 661, 212 S.W.2d 115, 119; In re Simpson’s Will, Sur., 33 N.Y.S.2d 614, 616; Restatement of the Law of Trusts, § 232; Scott on Trusts, 2nd Ed., Vol. III, § 232, p. 1744.
. Cf. Estate of Willard P. King, 37 T.C. 973 (decided February 21, 1962).
. National Surety Co. v. Jarrett, 95 W.Va. 420, 121 S.E. 291, 295, 36 A.L.R. 1171; Combs v. Carey’s Trustee, Ky., 287 S.W.2d 443; Industrial Trust Co. v. Commissioner of Int. Rev., 1 Cir., 151 F.2d 592, 594, 169 A.L.R. 144, c. d. 327 U.S. 788, 63 S.Ct. 807, 90 L.Ed. 1014; Estate of Albert E. Nettleton, 4 T.C. 987, 993; Gannert v. Rupert, 2 Cir., 127 F. 962, 963; Wiseman v. Tanner, D.C.Wash., 221 F. 694, 698, reversed on other grounds, 244 U.S. 590, 37 S.Ct. 662, 61 L.Ed. 1336; In re Buell’s Estate, 198 Misc. 358, 66 N.Y.S.2d 180, 185; English v. English, 32 N.J.Eq. 738, 750, 751; 39 C.J.S. Happiness p. 773.
. The interpretation we have placed on the opinion in the Merchants Bank case finds support in the following adjudicated cases:
Commissioner of Int. Rev. v. Wells Fargo B. & U. Tr. Co., 9 Cir., 145 F.2d 130, 132; Blodget v. Delaney, 1 Cir., 201 F.2d 589, 592; Lincoln Rochester Tr. Co. v. Commissioner of Int. R., 2 Cir., 181 F.2d 424, 425; Lincoln Rochester Trust Company v. McGowan, 2 Cir., 217 F.2d 287, 291.
. In the following cases the quoted language was held to provide an ascertainable, external and judicially enforceable standard:
Ithaca Trust Co. v. United States, 279 U.S. 151, 154, 49 S.Ct. 291, 73 L.Ed. 647, “from the principal any sum ‘that may be necessary to suitably maintain her in as much comfort as she now enjoys’”; Hartford-Connecticut Trust Co. v. Eaton, 2 Cir., 36 E.2d 710, “to pay over to * * * my said wife (the life tenant) any part of the principal * * * which it (the trustee) may deem necessary or advisable for her comfortable maintenance and support”; Berry v. Kuhl, 7 Cir., 174 F.2d 565, 566, payment from principal to life tenant for “treatment, support or maintenance”; Lincoln Rochester Trust Co. v. Commissioner of Int. R., 2 Cir., 181 F.2d 424, 425, 427, to advance to the life tenant “such sums of principal as may be necessary for her proper care, support and maintenance”; Blodget v. Delaney, 1 Cir., 201 F.2d 589, 591, to pay to the life tenant “from the principal any amount in their discretion for her comfort and welfare”; Jennings v. Smith, 2 Cir., 161 F.2d 74, 75, 76, to use net income “to enable the beneficiary * * * to maintain himself and his family * * * in comfort and in accordance with the station in life to which he belongs”; Blunt v. Kelly, 3 Cir., 131 F.2d 632, to use such portion of the principal as the trustees may deem proper “for the support, care or benefit of” the settlor; Estate of Walter E. Frew, 8 T.C. 1240, 1241, 1244, 1245, power of the trustees “in their sole discretion, if at any time * * * the net income payable to any beneficiary shall, in their opinion, be insufficient for the proper maintenance and support of said beneficiary, apply to such purposes so much of the respective part of the principal from which said income is derived as they may deem proper”; Estate of Horace G. Wetherill, 4 T.C. 678, 679, 681-684, invasion of corpus for “care, maintenance and support” of life tenant, Petition to Review dismissed 150 F.2d 1019; Estate of Lucius H. Elmer, 6 T.C. 944, invasion of corpus for “comfortable support” of life tenant.
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_usc1
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18
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title.
UNITED STATES of America, Plaintiff-Appellee, v. James Vincent AGUILAR, Defendant-Appellant.
No. 91-8643.
United States Court of Appeals, Fifth Circuit.
July 14, 1992.
Henry J. Bemporad, Asst. Federal Public Defender, San Antonio, Tex., Lucien B. Campbell, Federal Public Defender, Michael S. McDonald, Asst. Federal Public Defender, El Paso, Tex., for defendant-appellant.
Richard L. Durbin, Jr., David Landel Nichols, Asst. U.S. Atty., Ronald F. Ederer, U.S. Atty., San Antonio, Tex., for plaintiff-appellee.
Before GOLDBERG, JONES, and DeMOSS, Circuit Judges.
DeMOSS, Circuit Judge:
James Vincent Aguilar (Aguilar) appeals his conviction for seven counts of theft of government property under 18 U.S.C. § 641. In each count, the indictment charged that Aguilar “willfully and knowingly did steal and purloin U.S. currency and merchandise ... by submitting to the Fort Bliss Post Exchange a personal check which he then well knew would be insufficient.” The district court sentenced Aguilar to three years probation on each of the counts, the sentences to run concurrently.
Aguilar contends on appeal that the indictment fails to charge an offense under Williams v. United States, 458 U.S. 279, 102 S.Ct. 3088, 73 L.Ed.2d 767 (1982), which holds that a bad check is not a false representation, therefore, obtaining goods by writing bad checks cannot constitute a “wrongful taking” from the Government. We disagree and affirm the conviction as to Counts Two through Seven.
I. BACKGROUND
Aguilar is the husband of Staff Sergeant Barbara Simmons, stationed at Fort Bliss, Texas. Between May 26, 1990, and June 9, 1990, Aguilar wrote several checks to the Fort Bliss Post Exchange (the “PX”) and the post commissary for various amounts, in exchange for goods and cash. The checks were written on an account at the Sunset-Ogden branch of the Bank of America in Los Angeles, California, and at the time they were written, the account had been closed for insufficient funds. According to bank officer Bruce Baker, Aguilar’s account had a balance of $8.14 as of January 12, 1990, and the bank did not send him any account statements after January 1990 because his address was invalid, and he left no forwarding address. There was no activity in the account between January and May 1990, and when service charges depleted the balance, the bank closed the account. Aguilar claims he did not learn the account had been closed until after he wrote the insufficient funds checks at issue here.
The seven checks for which Aguilar was indicted were introduced as Government Exhibits 1-A through 1-G. The dates on all the checks correspond to the dates in the indictment, with the exception of the check labeled Exhibit 1-A, referred to in Count One. The date on that check was May 25, 1999. Aguilar contends that reversal is warranted as to Count One because a post-dated check is not payable until the stated date.
18 U.S.C. § 641 provides,
Whoever embezzles, steals, purloins, or knowingly converts ... any ... money, or thing of value of the United States ... Shall be fined not more than $10,000 or imprisoned not more than ten years, or both; but if the value of such property does not exceed the sum of $100, he shall be fined not more than $1,000 or imprisoned not more than a year, or both.
Whether an indictment sufficiently alleges the elements of an offense is a question of law to be reviewed de novo. United States v. Shelton, 937 F.2d 140, 142 (5th Cir.1991).
II. DID AGUILAR “STEAL” GOVERNMENT PROPERTY?
The elements of the offense of theft of government property under § 641 were expressed in the district court’s jury instructions:
In order to establish a violation of this statute, the government must prove beyond a reasonable doubt:
First: That the money or property contained in the indictment belonged to the United States Government and had a value in excess of $100 at the time alleged. Second: That the defendant stole or converted such money or property for the defendant’s own use or for the use of another; and
Third: That the defendant did so knowing the money or property was not his and with the intent to deprive the owner of the use or benefit of the money or property. Record Vol. 2, p. 99.
The district court defined the term “steal” as “the wrongful taking of money or property belonging to another with intent to deprive the owner of its use or benefit either temporarily or permanently.” Id. at 102-103. The issue in this case is whether payment by check upon a closed account is a “wrongful taking”, so as to constitute “stealing” as charged in the indictment.
Traditionally, most jurisdictions place bad-check writing within the offense of false pretenses. 2 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 8.9(a), at 417-18 (1986). They hold that the giving of a check is an implied representation that the drawer has credit at the drawee bank sufficient to cover the amount of the check. Id. at 417. Because of the difficulty in applying the crime of false pretenses to the situation where property is obtained by means of a no-account or insufficient-funds check, most if not all states have enacted bad-check legislation creating a new statutory crime separate from, and generally with penalties less severe than, the crime of false pretenses. Id. at 416.
Aguilar contends that § 641 does not cover issuance of bad checks, citing Williams, where the Supreme Court reversed convictions for making a false statement to a federally-insured bank under 18 U.S.C. § 1014 . Williams was engaged in check kiting, i.e., opening an account with one bank, writing a check on that account for an amount larger than the balance, depositing the bad check with another bank, and drawing cash on the deposited check. Id. 458 U.S. at 281-82, 102 S.Ct. at 3089-90. The Court held that writing and depositing the bad checks did not constitute either a “false statement” or “willful overvaluation,” as required for convictions under § 1014, and reasoned that “a check is not a factual assertion at all, and therefore cannot be characterized as ‘true’ or ‘false.’” Id. at 284, 102 S.Ct. at 3091.
No case has directly applied Williams to § 641. This Circuit has applied Williams and held in United States v. Medeles, 916 F.2d 195 (5th Cir.1990), that the mere presentation of a check which the defendant knows to contain insufficient finds does not amount to a false pretense under 18 U.S.C. § 1344(a)(2). Section 1344(a)(2) punishes one who
knowingly executes, ... a scheme or artifice— ... (2) to obtain any of the moneys, ... owned be or under the custody or control of a federally chartered of insured financial institution by means of false or fraudulent pretenses, representations, or promises, ... (emphasis added)
Under both Williams and Medeles, a presentation of a check on an account with insufficient funds does not constitute a “false representation” or “false pretense” as used in § 1014 and § 1344(a)(2). Significantly, Williams and Medeles weré both based on statutes specifically requiring a “false statement” and a “false pretense[ ]” respectively. Section 641, on which this case is based, does not have language to that effect: § 641 makes it a crime to “steal[ ] ... any ... money, or thing of value of the United States” without explicitly mentioning false pretenses. Therefore, we find this case distinguishable from both Williams and Medeles, and hold that the common law meaning of false pretenses, contributes to the meaning of the term “steal” in § 641.
In Boone v. United States, 235 F.2d 939 (4th Cir.1956), stealing by “false pretenses” under federal statutory interpretation was held to differ from common law theft by “false pretenses.” In Boone, the defendant had transported a vehicle across state lines after purchasing it with a check he represented to be good but knew to be worthless, and was convicted of violating 18 U.S.C. § 2312, which provided that “[wjhoever transports in interstate ... commerce a motor vehicle ... knowing the same to have been stolen shall be ...” guilty of a crime, (emphasis added) The defendant contended his conviction to be error because a “stolen” car was not taken through larceny only. The court affirmed the conviction, reasoning that “while ‘stolen’ is constantly identified with larceny, the term was never at common law equated or exclusively dedicated to larceny.... Nor in law is ‘steal’ or ‘stolen’ a word of art,” Id. at 940. The court further stated that regardless of what significance the common law, the courts, or the lexicolo-gists have ascribed to “stolen”, decisive here is the meaning that the Congress attributed to it. Id. at 940-41. The court then concluded that Congress meant to include more than common law larceny in the meaning of the word “stolen”. The court affirmed the conviction holding that where an automobile is purchased with a worthless check and transported interstate, it is “stolen” under § 2312.
In Morissette v. United States, 342 U.S. 246, 271-73, 72 S.Ct. 240, 254-55, 96 L.Ed. 288 (1952), the Court explained Congress’ intent in its wording of § 641:
It is not surprising if there is considerable overlapping in the embezzlement, stealing, purloining and knowing conversion grouped in this statute. What has concerned codifiers of the larceny-type offense is that gaps or crevices have separated particular crimes of this general class and guilty men have escaped through the breaches.... The purpose which we here attribute to Congress parallels that of codifiers of common law in England and the States and demonstrates that the serious problem in drafting such a statute is to avoid gaps and loopholes between offenses.... (footnotes omitted).
We think that Congress intended the provisions of larceny-type offenses codified under § 641, to include the offense of which Aguilar was charged in this case.
This Circuit has held that a “hot” check can constitute bank theft under § 2113(b), if sufficient evidence, other than the bad check itself, exists to prove intent to steal. United States v. Khamis, 674 F.2d 390 (5th Cir.1982). Khamis had deposited a $5,000 check signed by one, Al Morgargest, and withdrew the funds the next day. The government’s handwriting expert testified that Khamis wrote everything on the check, except for the signature of Al-Mor-gargest. On appeal Khamis contended that the evidence did not support the proposition that he intended to steal the $5,000 represented by the check explaining this incident as nothing more than a “deposit of a ‘hot check’ against which subsequent withdrawals were made.” Id. at 393. This explanation was rejected by the jury, and this Court refused to disturb the holding for insufficiency of evidence. The Court noted that evidence of intent to steal existed beyond the check itself: (1) a conflicting explanation given by Khamis to the bank when contacted about the dishonored check; (2) the testimony of the handwriting expert that Khamis had written the check; (3) Khamis’ denial that he wrote the check; (4) testimony that the address on the check was not Khamis residence but was the English Language Center which Khamis once attended; and (5) evidence reflecting the totality of the check kiting scheme in which this transaction played a part. The Khamis court reasoned that, “[t]he jury was entitled to conclude that Khamis’ deposit of a worthless check and the withdrawal and use of the funds represented by the check, in the circumstances presented, constituted a taking of the $5,000 with intent to steal from the bank, ...” Id. at 394 (emphasis added).
In sum, we do not think that Williams forecloses Aguilar’s conviction for stealing government property if the government proves that he knowingly passed a bad check with the intent not to honor it. A “hot” check alone cannot be a false statement under § 1014, but it can be used to convict a defendant under § 641 of theft by false pretenses if the government shows that the defendant intended not to honor the check, thereby proving the element of intent to deprive. Whether the government sufficiently proved Aguilar’s intent to deprive the U.S. of its property is the next issue we will address.
III. AGUILAR’S INTENT
The burden of proof is on the Government to prove each element to the offense beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970). In determining whether this burden has been successfully discharged, the evidence and all reasonable inferences that may be drawn from the evidence must be viewed in the light most favorable to the Government. United States v. Prieto-Tejas, 779 F.2d 1098, 1101 (5th Cir.1986). When reviewing the evidence for sufficiency, this court has stated that it should decide whether a “reasonable trier of fact could find that the evidence establishes guilt beyond a reasonable doubt.” United States v. Ayala, 887 F.2d 62, 67 (5th Cir.1989).
Aguilar contends his convictions must be reversed because the government made no showing that he intended to deprive the United States of its property. Aguilar states that in simple state law theft-by-check prosecutions, it must further be shown that he did not intend to pay at the time the check was written. See e.g., Wilson v. State, 663 S.W.2d 834, 836-37 (Tex.Crim.App.1984) (en banc). Aguilar asserts that the evidence showed that at the time he wrote the checks, he intended for the checks to be honored by the bank in due course. In his statements to the investigating officers, Aguilar consistently stated that he intended to put money in his account to cover the checks. Aguilar contends that the fact that the account was closed is of no moment because no evidence showed that he knew that the account was closed.
The government asserts that this is not a case in which a defendant wrote checks on an insufficient funds account with the good faith intention to deposit in that account an amount that would cover the checks before they cleared in the normal course of business. The account was closed at the time of issuance of the checks after some five months of inactivity. The bank officer testified that the bank did not send Aguilar an account statement from January 1990 onward because his previous address was not valid, and the bank did not have a forwarding address for him. During the five months of inactivity, the account balance dwindled to $8.14. As of January 12, 1990, the balance was depleted by service charges and the account was -closed. The next time Aguilar attempted to access the account was on May 25, 1990 when he wrote the first check to the PX for $329.37, as stated in Count One of the indictment. This check was followed by several other checks amounting to a total of $2,349.69, according to the other six counts in the indictment. Before trial, the Army tried unsuccessfully to collect from Aguilar, who did not pay any amount of money in restitution, even though he claimed that he intended to honor the checks. Moreover, Aguilar admitted to the FBI that he had written the entire series of twenty-two checks when he knew there was no money in the account. The government contends that based on all this evidence, a reasonable jury could infer that Aguilar intended not to honor the checks and, therefore, intended to deprive the government of its property. Especially telling is the number of checks written within a 17 day period with no attempt on Aguilar’s part to make offsetting deposits.
We agree and hold that the government presented sufficient evidence from which a reasonable jury could infer that Aguilar did not intend to honor the checks when he wrote them.
IV. COUNT ONE: THE “POSTDATED” CHECK
Aguilar contends that his conviction as to Count One must nevertheless be reversed because the evidence at trial clearly-showed that the date written on the check was May 25, 1999. (Government’s Exhibit 1-A, Record, Vol. 2, pp. 42-44). He argues that a post-dated check cannot constitute an implied representation that the drawer presently has enough in his account to cover the check, which is not even payable until the stated date. See, Tex.Bus. & Com.Code Ann. § 3.114(b).
The government responds that the date of the check was an issue before the jury, and “by its finding of guilty in this count, the jury evidently felt that it said ‘1990’.” Government Brief at 10. In light of the appearance of the check itself and the testimony presented at trial, no rational jury could have reached this conclusion. Aguilar’s conviction as to Count One must therefore be reversed.
For these reasons, we REVERSE the conviction as to Count One and otherwise AFFIRM as to the other counts of conviction. *
. Section 1014 states, "[w]hoever knowingly makes any false statement or report, or willfully overvalues any land, property or security, for the purpose of influencing in any way the action of ... any institution the accounts of which are insured by the Federal Deposit Insurance Corporation, ... upon any application, ... or loan, ... shall be fined not more than $1,000,000 or imprisoned not more than 30 years, or both."
. The. Court based its conclusion on the definition of a check in the Uniform Commercial Code. Id. at 285, 102 S.Ct. at 3092.
. Boone was followed by the Supreme Court in United States v. Turley, 352 U.S. 407, 77 S.Ct. 397, 1 L.Ed.2d 430 (1957), which construed § 2312 in the same manner.
. We are not alone in this conclusion. See, United States v. Williams, 946 F.2d 888 (4th Cir.1991) (table — unpublished) (available on WESTLAW).
. After Williams was decided, the Khamis court reversed the conviction under 18 U.S.C. § 1014, but left undisturbed the § 2113(b) conviction.
In a similar case, the Seventh Circuit applied Williams to determine that check kiting could not constitute bank theft under 18 U.S.C. § 2113(b), unless there was evidence of misrepresentations other than "the kited checks themselves.” United States v. Kucik, 844 F.2d 493, 500 (7th Cir.1988).
. Additionally, under FRE 404(b) the government submitted evidence of fifteen other bad checks written on the same closed account by Aguilar to the PX between May 25, and June 11, 1990.
. Markita Jordan, an employee at the Fort Bliss Commissary, testified that the check was “written" on May 25, 1990, but she also admitted that Aguilar wrote "May 25, 1999” on the check. The check itself was viewed as part of this record and clearly shows 1999.
Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number.
Answer:
|
songer_geniss
|
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. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous".
UNITED STATES of America, Plaintiff-Appellee, v. James Vincent AGUILAR, Defendant-Appellant.
No. 91-8643.
United States Court of Appeals, Fifth Circuit.
July 14, 1992.
Henry J. Bemporad, Asst. Federal Public Defender, San Antonio, Tex., Lucien B. Campbell, Federal Public Defender, Michael S. McDonald, Asst. Federal Public Defender, El Paso, Tex., for defendant-appellant.
Richard L. Durbin, Jr., David Landel Nichols, Asst. U.S. Atty., Ronald F. Ederer, U.S. Atty., San Antonio, Tex., for plaintiff-appellee.
Before GOLDBERG, JONES, and DeMOSS, Circuit Judges.
DeMOSS, Circuit Judge:
James Vincent Aguilar (Aguilar) appeals his conviction for seven counts of theft of government property under 18 U.S.C. § 641. In each count, the indictment charged that Aguilar “willfully and knowingly did steal and purloin U.S. currency and merchandise ... by submitting to the Fort Bliss Post Exchange a personal check which he then well knew would be insufficient.” The district court sentenced Aguilar to three years probation on each of the counts, the sentences to run concurrently.
Aguilar contends on appeal that the indictment fails to charge an offense under Williams v. United States, 458 U.S. 279, 102 S.Ct. 3088, 73 L.Ed.2d 767 (1982), which holds that a bad check is not a false representation, therefore, obtaining goods by writing bad checks cannot constitute a “wrongful taking” from the Government. We disagree and affirm the conviction as to Counts Two through Seven.
I. BACKGROUND
Aguilar is the husband of Staff Sergeant Barbara Simmons, stationed at Fort Bliss, Texas. Between May 26, 1990, and June 9, 1990, Aguilar wrote several checks to the Fort Bliss Post Exchange (the “PX”) and the post commissary for various amounts, in exchange for goods and cash. The checks were written on an account at the Sunset-Ogden branch of the Bank of America in Los Angeles, California, and at the time they were written, the account had been closed for insufficient funds. According to bank officer Bruce Baker, Aguilar’s account had a balance of $8.14 as of January 12, 1990, and the bank did not send him any account statements after January 1990 because his address was invalid, and he left no forwarding address. There was no activity in the account between January and May 1990, and when service charges depleted the balance, the bank closed the account. Aguilar claims he did not learn the account had been closed until after he wrote the insufficient funds checks at issue here.
The seven checks for which Aguilar was indicted were introduced as Government Exhibits 1-A through 1-G. The dates on all the checks correspond to the dates in the indictment, with the exception of the check labeled Exhibit 1-A, referred to in Count One. The date on that check was May 25, 1999. Aguilar contends that reversal is warranted as to Count One because a post-dated check is not payable until the stated date.
18 U.S.C. § 641 provides,
Whoever embezzles, steals, purloins, or knowingly converts ... any ... money, or thing of value of the United States ... Shall be fined not more than $10,000 or imprisoned not more than ten years, or both; but if the value of such property does not exceed the sum of $100, he shall be fined not more than $1,000 or imprisoned not more than a year, or both.
Whether an indictment sufficiently alleges the elements of an offense is a question of law to be reviewed de novo. United States v. Shelton, 937 F.2d 140, 142 (5th Cir.1991).
II. DID AGUILAR “STEAL” GOVERNMENT PROPERTY?
The elements of the offense of theft of government property under § 641 were expressed in the district court’s jury instructions:
In order to establish a violation of this statute, the government must prove beyond a reasonable doubt:
First: That the money or property contained in the indictment belonged to the United States Government and had a value in excess of $100 at the time alleged. Second: That the defendant stole or converted such money or property for the defendant’s own use or for the use of another; and
Third: That the defendant did so knowing the money or property was not his and with the intent to deprive the owner of the use or benefit of the money or property. Record Vol. 2, p. 99.
The district court defined the term “steal” as “the wrongful taking of money or property belonging to another with intent to deprive the owner of its use or benefit either temporarily or permanently.” Id. at 102-103. The issue in this case is whether payment by check upon a closed account is a “wrongful taking”, so as to constitute “stealing” as charged in the indictment.
Traditionally, most jurisdictions place bad-check writing within the offense of false pretenses. 2 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 8.9(a), at 417-18 (1986). They hold that the giving of a check is an implied representation that the drawer has credit at the drawee bank sufficient to cover the amount of the check. Id. at 417. Because of the difficulty in applying the crime of false pretenses to the situation where property is obtained by means of a no-account or insufficient-funds check, most if not all states have enacted bad-check legislation creating a new statutory crime separate from, and generally with penalties less severe than, the crime of false pretenses. Id. at 416.
Aguilar contends that § 641 does not cover issuance of bad checks, citing Williams, where the Supreme Court reversed convictions for making a false statement to a federally-insured bank under 18 U.S.C. § 1014 . Williams was engaged in check kiting, i.e., opening an account with one bank, writing a check on that account for an amount larger than the balance, depositing the bad check with another bank, and drawing cash on the deposited check. Id. 458 U.S. at 281-82, 102 S.Ct. at 3089-90. The Court held that writing and depositing the bad checks did not constitute either a “false statement” or “willful overvaluation,” as required for convictions under § 1014, and reasoned that “a check is not a factual assertion at all, and therefore cannot be characterized as ‘true’ or ‘false.’” Id. at 284, 102 S.Ct. at 3091.
No case has directly applied Williams to § 641. This Circuit has applied Williams and held in United States v. Medeles, 916 F.2d 195 (5th Cir.1990), that the mere presentation of a check which the defendant knows to contain insufficient finds does not amount to a false pretense under 18 U.S.C. § 1344(a)(2). Section 1344(a)(2) punishes one who
knowingly executes, ... a scheme or artifice— ... (2) to obtain any of the moneys, ... owned be or under the custody or control of a federally chartered of insured financial institution by means of false or fraudulent pretenses, representations, or promises, ... (emphasis added)
Under both Williams and Medeles, a presentation of a check on an account with insufficient funds does not constitute a “false representation” or “false pretense” as used in § 1014 and § 1344(a)(2). Significantly, Williams and Medeles weré both based on statutes specifically requiring a “false statement” and a “false pretense[ ]” respectively. Section 641, on which this case is based, does not have language to that effect: § 641 makes it a crime to “steal[ ] ... any ... money, or thing of value of the United States” without explicitly mentioning false pretenses. Therefore, we find this case distinguishable from both Williams and Medeles, and hold that the common law meaning of false pretenses, contributes to the meaning of the term “steal” in § 641.
In Boone v. United States, 235 F.2d 939 (4th Cir.1956), stealing by “false pretenses” under federal statutory interpretation was held to differ from common law theft by “false pretenses.” In Boone, the defendant had transported a vehicle across state lines after purchasing it with a check he represented to be good but knew to be worthless, and was convicted of violating 18 U.S.C. § 2312, which provided that “[wjhoever transports in interstate ... commerce a motor vehicle ... knowing the same to have been stolen shall be ...” guilty of a crime, (emphasis added) The defendant contended his conviction to be error because a “stolen” car was not taken through larceny only. The court affirmed the conviction, reasoning that “while ‘stolen’ is constantly identified with larceny, the term was never at common law equated or exclusively dedicated to larceny.... Nor in law is ‘steal’ or ‘stolen’ a word of art,” Id. at 940. The court further stated that regardless of what significance the common law, the courts, or the lexicolo-gists have ascribed to “stolen”, decisive here is the meaning that the Congress attributed to it. Id. at 940-41. The court then concluded that Congress meant to include more than common law larceny in the meaning of the word “stolen”. The court affirmed the conviction holding that where an automobile is purchased with a worthless check and transported interstate, it is “stolen” under § 2312.
In Morissette v. United States, 342 U.S. 246, 271-73, 72 S.Ct. 240, 254-55, 96 L.Ed. 288 (1952), the Court explained Congress’ intent in its wording of § 641:
It is not surprising if there is considerable overlapping in the embezzlement, stealing, purloining and knowing conversion grouped in this statute. What has concerned codifiers of the larceny-type offense is that gaps or crevices have separated particular crimes of this general class and guilty men have escaped through the breaches.... The purpose which we here attribute to Congress parallels that of codifiers of common law in England and the States and demonstrates that the serious problem in drafting such a statute is to avoid gaps and loopholes between offenses.... (footnotes omitted).
We think that Congress intended the provisions of larceny-type offenses codified under § 641, to include the offense of which Aguilar was charged in this case.
This Circuit has held that a “hot” check can constitute bank theft under § 2113(b), if sufficient evidence, other than the bad check itself, exists to prove intent to steal. United States v. Khamis, 674 F.2d 390 (5th Cir.1982). Khamis had deposited a $5,000 check signed by one, Al Morgargest, and withdrew the funds the next day. The government’s handwriting expert testified that Khamis wrote everything on the check, except for the signature of Al-Mor-gargest. On appeal Khamis contended that the evidence did not support the proposition that he intended to steal the $5,000 represented by the check explaining this incident as nothing more than a “deposit of a ‘hot check’ against which subsequent withdrawals were made.” Id. at 393. This explanation was rejected by the jury, and this Court refused to disturb the holding for insufficiency of evidence. The Court noted that evidence of intent to steal existed beyond the check itself: (1) a conflicting explanation given by Khamis to the bank when contacted about the dishonored check; (2) the testimony of the handwriting expert that Khamis had written the check; (3) Khamis’ denial that he wrote the check; (4) testimony that the address on the check was not Khamis residence but was the English Language Center which Khamis once attended; and (5) evidence reflecting the totality of the check kiting scheme in which this transaction played a part. The Khamis court reasoned that, “[t]he jury was entitled to conclude that Khamis’ deposit of a worthless check and the withdrawal and use of the funds represented by the check, in the circumstances presented, constituted a taking of the $5,000 with intent to steal from the bank, ...” Id. at 394 (emphasis added).
In sum, we do not think that Williams forecloses Aguilar’s conviction for stealing government property if the government proves that he knowingly passed a bad check with the intent not to honor it. A “hot” check alone cannot be a false statement under § 1014, but it can be used to convict a defendant under § 641 of theft by false pretenses if the government shows that the defendant intended not to honor the check, thereby proving the element of intent to deprive. Whether the government sufficiently proved Aguilar’s intent to deprive the U.S. of its property is the next issue we will address.
III. AGUILAR’S INTENT
The burden of proof is on the Government to prove each element to the offense beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970). In determining whether this burden has been successfully discharged, the evidence and all reasonable inferences that may be drawn from the evidence must be viewed in the light most favorable to the Government. United States v. Prieto-Tejas, 779 F.2d 1098, 1101 (5th Cir.1986). When reviewing the evidence for sufficiency, this court has stated that it should decide whether a “reasonable trier of fact could find that the evidence establishes guilt beyond a reasonable doubt.” United States v. Ayala, 887 F.2d 62, 67 (5th Cir.1989).
Aguilar contends his convictions must be reversed because the government made no showing that he intended to deprive the United States of its property. Aguilar states that in simple state law theft-by-check prosecutions, it must further be shown that he did not intend to pay at the time the check was written. See e.g., Wilson v. State, 663 S.W.2d 834, 836-37 (Tex.Crim.App.1984) (en banc). Aguilar asserts that the evidence showed that at the time he wrote the checks, he intended for the checks to be honored by the bank in due course. In his statements to the investigating officers, Aguilar consistently stated that he intended to put money in his account to cover the checks. Aguilar contends that the fact that the account was closed is of no moment because no evidence showed that he knew that the account was closed.
The government asserts that this is not a case in which a defendant wrote checks on an insufficient funds account with the good faith intention to deposit in that account an amount that would cover the checks before they cleared in the normal course of business. The account was closed at the time of issuance of the checks after some five months of inactivity. The bank officer testified that the bank did not send Aguilar an account statement from January 1990 onward because his previous address was not valid, and the bank did not have a forwarding address for him. During the five months of inactivity, the account balance dwindled to $8.14. As of January 12, 1990, the balance was depleted by service charges and the account was -closed. The next time Aguilar attempted to access the account was on May 25, 1990 when he wrote the first check to the PX for $329.37, as stated in Count One of the indictment. This check was followed by several other checks amounting to a total of $2,349.69, according to the other six counts in the indictment. Before trial, the Army tried unsuccessfully to collect from Aguilar, who did not pay any amount of money in restitution, even though he claimed that he intended to honor the checks. Moreover, Aguilar admitted to the FBI that he had written the entire series of twenty-two checks when he knew there was no money in the account. The government contends that based on all this evidence, a reasonable jury could infer that Aguilar intended not to honor the checks and, therefore, intended to deprive the government of its property. Especially telling is the number of checks written within a 17 day period with no attempt on Aguilar’s part to make offsetting deposits.
We agree and hold that the government presented sufficient evidence from which a reasonable jury could infer that Aguilar did not intend to honor the checks when he wrote them.
IV. COUNT ONE: THE “POSTDATED” CHECK
Aguilar contends that his conviction as to Count One must nevertheless be reversed because the evidence at trial clearly-showed that the date written on the check was May 25, 1999. (Government’s Exhibit 1-A, Record, Vol. 2, pp. 42-44). He argues that a post-dated check cannot constitute an implied representation that the drawer presently has enough in his account to cover the check, which is not even payable until the stated date. See, Tex.Bus. & Com.Code Ann. § 3.114(b).
The government responds that the date of the check was an issue before the jury, and “by its finding of guilty in this count, the jury evidently felt that it said ‘1990’.” Government Brief at 10. In light of the appearance of the check itself and the testimony presented at trial, no rational jury could have reached this conclusion. Aguilar’s conviction as to Count One must therefore be reversed.
For these reasons, we REVERSE the conviction as to Count One and otherwise AFFIRM as to the other counts of conviction. *
. Section 1014 states, "[w]hoever knowingly makes any false statement or report, or willfully overvalues any land, property or security, for the purpose of influencing in any way the action of ... any institution the accounts of which are insured by the Federal Deposit Insurance Corporation, ... upon any application, ... or loan, ... shall be fined not more than $1,000,000 or imprisoned not more than 30 years, or both."
. The. Court based its conclusion on the definition of a check in the Uniform Commercial Code. Id. at 285, 102 S.Ct. at 3092.
. Boone was followed by the Supreme Court in United States v. Turley, 352 U.S. 407, 77 S.Ct. 397, 1 L.Ed.2d 430 (1957), which construed § 2312 in the same manner.
. We are not alone in this conclusion. See, United States v. Williams, 946 F.2d 888 (4th Cir.1991) (table — unpublished) (available on WESTLAW).
. After Williams was decided, the Khamis court reversed the conviction under 18 U.S.C. § 1014, but left undisturbed the § 2113(b) conviction.
In a similar case, the Seventh Circuit applied Williams to determine that check kiting could not constitute bank theft under 18 U.S.C. § 2113(b), unless there was evidence of misrepresentations other than "the kited checks themselves.” United States v. Kucik, 844 F.2d 493, 500 (7th Cir.1988).
. Additionally, under FRE 404(b) the government submitted evidence of fifteen other bad checks written on the same closed account by Aguilar to the PX between May 25, and June 11, 1990.
. Markita Jordan, an employee at the Fort Bliss Commissary, testified that the check was “written" on May 25, 1990, but she also admitted that Aguilar wrote "May 25, 1999” on the check. The check itself was viewed as part of this record and clearly shows 1999.
Question: What is the general issue in the case?
A. criminal
B. civil rights
C. First Amendment
D. due process
E. privacy
F. labor relations
G. economic activity and regulation
H. miscellaneous
Answer:
|
songer_geniss
|
G
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous".
WESTERN GEOPHYSICAL COMPANY OF AMERICA, INC., Plaintiff-Appellee, v. BOLT ASSOCIATES, INC., Defendant-Appellant. BOLT ASSOCIATES, INC., Third-Party-Plaintiff-Appellant, v. LITTON INDUSTRIES, INC., Third-Party-Defendant-Appellee.
Docket 71-1061.
United States Court of Appeals, Second Circuit.
Motion Argued Feb. 8, 1971.
Decided March 4, 1971.
Roland T. Bryan, Stamford, Conn. (Bryan, Parmelee, Johnson & Bollinger, Haynes N. Johnson and Prescott W. May, Stamford, Conn., and Joseph L. Lazaroff, Boston, Mass., of counsel), for defendant.
Shaun S. Sullivan, New Haven, Conn. (Wiggin & Dana, William J. Doyle, New Haven, Conn., of counsel), for plaintiff and third party defendant.
Before WATERMAN and FRIENDLY, Circuit Judges, and McLEAN, District Judge.
Of the District Court for the Southern District of New York, sitting by designation.
FRIENDLY, Circuit Judge:
Plaintiff, Western Geophysical Company of America, Inc. (“Geophysical”), and its parent, Litton Industries, Inc. (“Litton”), third party defendant, move to dismiss an appeal by defendant-third party plaintiff, Bolt Associates, Inc. (“Bolt”), from an interlocutory order of Judge Blumenfeld in the District Court for Connecticut.
The original complaint, filed in March 1967, asserted two causes of action. They arose out of alleged breaches by Bolt of two agreements dated September 14, 1962, and April 16, 1963, respectively. By virtue of the September 14 agreement and three $2,500 payments made pursuant thereto, Geophysical was given the option, upon further payments of $25,000, to enter into two exclusive licensing agreements with Bolt. The first, entered into on April 16, 1963 with a concurrent payment of $25,000, gave Geophysical the exclusive right “to use, as a sound source for off-shore sub-bottom exploration, certain pneumatic acoustical repeater devices having a pressure chamber volume in the size range from ten to two hundred cubic inches.” The second exclusive license was to relate “to any improvements, designs, or developments and inventions relating to pneumatic acoustical repeater devices having a pressure chamber volume greater than 200 cubic inches or to fueled pneumatic acoustical repeaters for use as a sound source for off-shore sub-botton exploration.” Broadly speaking, royalty income generated by Geophysical’s sublicensing activities and imputed royalty income from Geophysical’s own use of the devices was to be shared on a 50-50 basis.
The first cause of action alleged that, without informing Geophysical that it had made any improvements in the size range greater than 200 cubic inches, Bolt had sold or leased such devices to others, had represented that it was prepared to grant licenses to others covering devices within the terms of the second license option, and had refused to enter into the second exclusive license agreement with Geophysical. The second cause of action asserted that Bolt had wrongfully terminated the exclusive license agreement of April 16, 1963, and had sold or leased devices subject to that agreement to others. Alleging that its remedies at law were inadequate due to the uniqueness of the devices, Geophysical sought orders decreeing that the basic agreement of September 14, 1962, and the exclusive license of April 16, 1963, were in full force and effect, enjoining Bolt from granting any rights in derogation of Geophysical’s rights under the latter, directing Bolt to enter into the second exclusive license, requiring specific performance of the two agreements in many respects unnecessary to detail, and directing an accounting for profits realized by Bolt’s alleged breaches of contract or awarding “as an alternative to the relief above requested, damages in the amount of $950,000.00.”
Bolt filed an answer presenting various defenses and also five counterclaims against Geophysical and Litton. The second, third and fourth counterclaims relied on the antitrust laws. The second counterclaim asserted that the actions of Geophysical and Litton were an attempt to monopolize and a combination and conspiracy forbidden by § 2 of the Sherman Act and that their acquisition of exclusive rights to Bolt’s unique and novel invention would violate § 7 of the Clayton Act. The third and fourth counterclaims alleged a conspiracy for a group boycott of Bolt and to suppress use of Bolt’s' invention, in violation of § 2 of the Sherman Act. In these counterclaims Bolt asked, inter alia, that the court declare the agreements unenforceable, enjoin Geophysical and Litton from attempting to enforce them or from engaging in unlicensed use of Bolt’s devices, and award Bolt damages of $1,-000,000.00, to be trebled. Similar alleged violations of the antitrust laws were also included in Bolt’s defenses.
Geophysical and Litton moved for judgment on the pleadings and for summary judgment with respect to the antitrust defenses and counterclaims. The court denied the motions insofar as the defenses were concerned, with leave to the parties to submit additional affidavits in respect of the counterclaims, see 305 F.Supp. 1248 (D.Conn.1969). In a later opinion, 305 F.Supp. 1251 (D.Conn.1969), the court adhered to its ruling with respect to the Sherman Act defenses and also upheld the third and fourth counterclaims. It reached a different conclusion with respect to the claimed violation of § 7 of the Clayton Act. Assuming in Bolt’s favor that “a single acquisition of an exclusive license is within the purview of the act,” it ruled that Geophysical’s obligation to promote worldwide licensing made the license itself pro-competitive and that any suppression of the invention by Geophysical and Litton would stem not from the acquisition of the asset, to which § 7 is directed, but from breach of contract and misuse of an asset already acquired. The court summarized its conclusion as follows, 305 F.Supp. at 1256:
The motions of plaintiff and third-party defendant for summary judgment with respect to defendant’s counterclaims three and four are denied. With respect to that part of counterclaim number two which invokes Clayton Act Section 7, the motions are granted; with respect to the rest of counterclaim number two (that part invoking Sherman Act Section 2), the motions are denied.
After various unsuccessful maneuvers by Bolt designed to produce an order appealable by virtue of F.R.Civ.P. 54(b) or 28 U.S.C. § 1292(b), which need not be here detailed, and an order by the judge separating for later trial the patent issues raised by the fifth counterclaim, 50 F.R.D. 193 (D.Conn.1970), Geophysical, with leave of the court and the defendant’s consent, served an • amended complaint. Although Bolt conelusorily asserts that this constituted a material change, it does not appear to us to be so. Bolt answered, as required by F.R.Civ.P. 15(a). For our purposes the important change in the answer to the amended complaint was the addition of a sixth counterclaim. This alleged a plan by Geophysical in conjunction with Litton “to continue and further plaintiff’s dominance of the off-shore, sub-bottom exploration industry by seeking to control and controlling the new significant non-dynamite sound sources, to suppress their use, and to keep them” from the rest of the industry. After developing this theme in detail, Bolt alleged that the plan and the actions pursuant thereto violated §§ 1 and 2 of the Sherman Act and § 7 of the Clayton Act and prayed for damages of $1,000,000, to be trebled, and an injunction against plaintiffs’ attempting to enforce any of the rights they claimed under the agreements and against their pursuing various courses of action which would have anticompetitive effects. Finally, Bolt sought a direction that plaintiffs be required to divest themselves of all rights in non-dynamite sound sources. In contrast to the original answer, the amended one demanded “trial by jury of all the issues in this action that are properly triable by a jury.”
Geophysical and Litton responded with a motion which, so far as is here pertinent, sought to strike the jury demand as not having been served within the time required by F.R.Civ.P. 38(b) and all defenses and counterclaims based on § 7 of the Clayton Act “on the ground that this Court has already ruled that such defenses and counterclaims are insufficient as a matter of law.” Judge Blumenfeld disposed of this motion and dealt with other matters in a pre-trial order filed December 29, 1970. Holding that nothing in the amended complaint furnished a basis for the late jury demand, he granted the motion to strike that demand insofar as it related to issues presented by the amended complaint and, inferentially, by the first five counterclaims. On the other hand, he denied the motion insofar as it sought to strike the jury demand with respect to issues raised by the newly pleaded sixth counterclaim. Faced with the prospect of a non-jury trial on the issues raised by the amended complaint and the first five counterclaims and of a jury trial on the issues raised by the sixth, and recognizing the need for additional, perhaps extensive, discovery with respect to the latter, he deferred discovery and trial of the sixth counterclaim until trial of the other non-patent claims and counterclaims had been completed. While he in form denied the motion “to strike the Clayton Act § 7 pleadings,” he stated that “this court’s previous rulings relating to the defendant’s answer insofar as it asserted defenses and/or counterclaims based upon alleged violations of the Clayton Act § 7 (15 U.S.C. § 18), 305 F.Supp. 1248, 1251 (D.Conn.1969), are equally applicable to the defendant’s amended answer.” Trial was to commence on March 9, 1971. Bolt’s notice of appeal states generally that it is “from the Court’s Order ruling on plaintiff’s Motion to Strike, entered in this action on December 29,1970.”
To take the easiest point first, it is altogether plain that the striking of Bolt’s jury demand with respect to the amended complaint and the repleaded counterclaims as untimely was neither a “final decision” within 28 U.S.C. § 1291 nor an order granting or denying an injunction within § 1292(a) (1). The proper method for seeking review of such an order is mandamus, see Ex parte Simons, 247 U.S. 231, 38 S.Ct. 497, 62 L.Ed. 1094 (1918); Ex parte Skinner & Eddy Corp., 265 U.S. 86, 44 S.Ct. 446, 68 L.Ed. 912 (1924); Bereslavsky v. Caffey, 161 F.2d 499 (2 Cir.), cert. denied, 332 U.S. 770, 68 S.Ct. 82, 92 L.Ed. 355 (1947); Bereslavsky v. Kloeb, 162 F.2d 862 (6 Cir.), cert. denied, 332 U.S. 816, 68 S.Ct. 156, 92 L.Ed. 393 (1947). We have indicated that in an appropriate case, where a litigant has mistakenly sought to obtain by appeal relief that could properly be given only on mandamus, we might consider the appeal as a request for leave to file a petition for mandamus, International Prods. Corp. v. Koons, 325 F.2d 403, 407 (2 Cir. 1963). But that principle does not assist Bolt. If Bolt had filed a petition for mandamus with respect to this portion of the order, we would have denied it without calling for an answer. See F.R.A.P. 21(b). The authorities are clear that when a party has waived the right to a jury trial with respect to the original complaint and answer by failing to make a timely demand, amendments of the pleadings that do not change the issues do not revive this right, Roth v. Hyer, 142 F.2d 227 (5 Cir.), cert. denied, 323 U.S. 712, 65 S.Ct. 38, 89 L.Ed. 573 (1944); Moore v. United States, 196 F.2d 906, 908 (5 Cir. 1952) (dictum); Reeves v. Pennsylvania R. R. Co., 9 F.R.D. 487 (D.Del.1949); 5 Moore, Federal Practice P8.41 (2d ed. 1969). As already indicated, we are unable to perceive that the amended complaint or the amended answer, apart from the newly added sixth counterclaim, in any way changed the issues raised by the original pleadings.
We turn next to Bolt’s contention that so much of the order as struck the portions of the second and sixth counterclaims grounded upon § 7 of the Clayton Act was appealable as an interlocutory order refusing an injunction within 28 U.S.C. § 1292(a) (1), a section whose history is traced in Stewart-Warner Corp. v. Westinghouse Electric Corp., 325 F.2d 822, 829-830 (2 Cir. 1963) (dissenting opinion), cert. denied sub nom. Stewart-Warner Corp. v. Canadian Westinghouse Co., 376 U.S. 944, 84 S.Ct. 800, 11 L.Ed.2d 767 (1964). If the issue had not previously arisen, something could be said for the proposition that when a complaint and answer present several claims, an order dismissing one of them which seeks an injunction, either on the merits or for lack of jurisdiction or improper venue, is not interlocutory but rather final with respect to that claim and is subject to appeal only if the district court properly certifies its action as a final judgment under F.R.Civ.P. 54(b). However, there are weighty arguments on the other side, and the division among the courts was settled in favor of appealability as from an interlocutory order refusing an injunction, prior to adoption of the Rules of Civil Procedure, in General Electric Co. v. Marvel Rare Metals Co., 287 U.S. 430, 53 S.Ct. 202, 77 L.Ed. 408 (1932). We applied that principle, after adoption of the rules, in Cutting Room Appliances Corp. v. Empire Cutting Machine Co., 186 F.2d 997 (2 Cir. 1951), in Telechron, Inc. v. Parissi, 197 F.2d 757 (2 Cir. 1952), and, in the writer’s view improperly, in Stewart-Warner Corp. v. Westinghouse Electric Corp., supra, 325 F.2d 822. Hence, if Bolt had asserted only one counterclaim seeking injunctive relief and this had been based solely on § 7 of the Clayton Act, an order striking the counterclaim for failing to state a claim on which relief could be granted or rendering summary judgment against Bolt would have been appealable under 28 U.S.C. § 1292(a) (1).
Bolt’s difficulty is that its appeal does not mirror the hypothetical just stated. The second and sixth counterclaims were only two of four which sought injunctive relief under the antitrust laws, and § 7 of the Clayton Act was only one of several bases for relief asserted in these two counterclaims. The prayers for injunctive relief in counterclaims Two, Three, and Four are virtually identical. Although the Sixth counterclaim’s injunctive prayer is somewhat broader than that stated in the others, it — like the Second counterclaim— rests upon alleged violations of the Sherman Act as well as of Clayton Act § 7. Hence, the decision of a divided court in Glenmore v. Ahern, 276 F.2d 525, 545 (2 Cir.), cert. denied sub nom. Tri-Continental Financial Corp. v. Glenmore, 362 U.S. 964, 80 S.Ct. 877, 4 L.Ed.2d 878 (1960), does not mandate appellate jurisdiction here. In Glenmore, the district court had granted defendant’s motion to dismiss the sixth count of a multi-count complaint. The dismissed count had sought the same injunctive relief as several other counts but on “a distinct legal theory,” indeed, a distinct claim — failure to obtain I.C.C. authorization for significant changes in the rights and privileges of the holders of railroad preferred stock as required by § 20(a) of the Interstate Commerce Act, cf. Original Ballet Russe, Ltd. v. Ballet Theatre, Inc., 133 F.2d 187, 189 (2 Cir. 1943). Although other counts seeking an injunction on non-statutory grounds remained undetermined, we held the dismissal of the sixth count to be appealable under § 1292(a) (l). Here, by contrast, no single counterclaim of Bolt’s has been dismissed in its entirety. Bolt may still secure the full extent of injunctive relief prayed for in each claim that it has stated. Cf. Cott Beverage Corp. v. Canada Dry Ginger Ale, Inc., 243 F.2d 795 (2 Cir. 1957); Backus Plywood Corp. v. Commercial Decal, Inc., 317 F.2d 339, 341 (2 Cir.), cert. denied, 375 U.S. 879, 84 S.Ct. 146, 11 L.Ed.2d 110 (1963); Rabekoff v. Lazere & Co., 323 F.2d 865 (2 Cir. 1963); McNellis v. Merchants Nat. Bank & Trust Co., 385 F.2d 916 (2 Cir. 1967), all dealing with the related problem under F.R.Civ.P. 54(b). Under these circumstances, we cannot see that the judge’s striking the references to § 7 of the Clayton Act differed essentially from the exclusion of evidence or refusal to hear argument relating solely to violation of that section.
We come finally to Bolt’s appeal from that portion of the pre-trial order which postponed the jury trial of the sixth counterclaim until the non-patent issues raised by the amended complaint and the other counterclaims had been determined by the judge. Bolt does not seriously urge that this direction of the order of trial was a denial of the injunction prayed in the sixth counterclaim; its contention rather is that the order stayed the trial of what it considers a counterclaim “at law,” as evidenced by the judge’s refusal to strike the jury demand, and thus was the grant of an injunction within Enelow v. New York Life Ins. Co., 293 U.S. 379, 55 S.Ct. 310, 79 L.Ed. 440 (1935) and Ettelson v. Metropolitan Life Ins. Co., 317 U.S. 188, 63 S.Ct. 163, 87 L.Ed. 176 (1942). Both those cases, however, were actions commenced “at law” where the district court had directed the prior trial of an equitable defense in the former case and of an equitable counterclaim in the latter; the theory was that the law judge had donned a chancellor’s robes and enjoined himself from acting on the law claim.
In the reverse situation, where the action begins as one “in equity” and the court decides to try the equitable claims in advance of a legal counterclaim, the judge is considered not to have enjoined trial of the latter but merely to have exercised his power to direct the order of trial, City of Morgantown v. Royal Ins. Co., 337 U.S. 254, 69 S.Ct. 1067, 93 L.Ed. 1347 (1949). See also Baltimore Contractors, Inc. v. Bodinger, 348 U.S. 176, 75 S.Ct. 249, 99 L.Ed. 233 (1955). But see Travel Consultants, Inc. v. Travel Management Corp., 125 U.S.App.D.C. 108, 367 F.2d 334 (1966), cert. denied, 386 U.S. 912, 87 S.Ct. 861, 17 L.Ed.2d 785 (1967). This was the situation here. Although the complaint sought declaratory relief, 28 U.S.C. §§ 2201-02, and included an alternative prayer for damages, the demands for both negative and mandatory injunctions against Bolt to compel specific performance of the contracts made it essentially a suit in equity. See Schine v. Schine, 367 F.2d 685 (2 Cir. 1966).
This, however, is not quite the end of the road. It may be that even when the complaint is as clearly equitable as here, if the defendant pleads a counterclaim “at law” which involves issues of fact and law common with the complaint and answer and seasonably demands a jury trial of the counterclaim prior to the trial of the issues raised in the complaint, the court should generally exercise its discretion to grant the request, although' neither of the oft-cited Supreme Court decisions, Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 79 S.Ct. 948, 3 L.Ed.2d 988 (1959); Dairy Queen, Inc. v. Wood, 369 U.S. 469, 82 S.Ct. 894, 8 L.Ed.2d 44 (1962), goes quite that far and we do not here so decide. See Robine v. Ryan, 310 F.2d 797 (2 Cir. 1962). While, for the reasons indicated, an order postponing trial of such a counterclaim would not be the grant of an injunction under 28 U.S.C. § 1292(a) (1), abuse of discretion in effectively denying the constitutional right of jury trial would be correctable by mandamus, as was done in the cases cited. And, as indicated above, we will treat an attempted appeal as a request for leave to file such a petition in appropriate instances. However, it is apparent there was no abuse of discretion here. Even if we assume in Bolt’s favor that the sixth counterclaim was truly founded on “a separate transaction or occurrence,” F.R.Civ.P. 10(b), and was not merely a more elaborate and updated version of what had been pleaded in the second counterclaim long ago, it was filed three and a half years after the suit was brought and Bolt had failed to demand a jury trial on the antitrust issues raised in its second, third and fourth counterclaims, after extensive discovery had been had on the issues raised by the complaint, the answer and the first five counterclaims, and a month after the date for the pre-trial conference had been set. Bolt has not challenged the judge’s statement that further extensive discovery on the sixth counterclaim will be required. Under these circumstances we perceive no abuse of discretion in his directing that, at long last, Geophysical should have its day in court, even if this should mean that findings by him may determine issues relating to the recently pleaded sixth counterclaim on which Bolt is to be afforded a jury trial.
The motion to dismiss the appeal is granted. Insofar as the appeal is deemed a motion for leave to petition for mandamus, it is denied.
. Federal jurisdiction was pr< ieated on diverse citizenship.
. Apparently the court correspondingly modified its earlier ruling with respect to the antitrust defenses. See 305 F.Supp. at 1251 n. 2, 1253 n. 2.
. Professors Moore and Ward state that Stewart-Warner can be reconciled with our previous decision in National Machinery Co. v. Waterbury Farrel Foundry & Mach. Co., 290 F.2d 527 (2 Cir. 1961), “only by assuming that the majority viewed the appeal as one from an order dismissing a compulsory counterclaim for improper venue.” 9 Moore’s Fed. Practice K110.20[l] n. 33 (2 ed. 1970). But see 325 F.2d at 828 & n. 2.
. Since the district court had both denied plaintiff’s motion for summary judgment on the sixth count and granted defendant’s motion to dismiss it, large portions of the various opinions in that ease were devoted to the issue, then hotly controverted in this court, whether denial of a plaintiff’s motion for summary judgment seeking an injunction was appealable under 28 U.S.C. § 1292(a) (1). The discussion was rather unnecessary since the district court had dismissed the count. See 276 F.2d at 546, 555. The overruling of our holding in Federal Glass Co. v. Loshin, 217 F.2d 936 (2 Cir. 1954), with respect to the appealability of orders refusing summary judgment for injunctions, by Chappell & Co. v. Frankel, 367 F.2d 197, 200 (2 Cir. 1966), and the disapproval of Loshin in Switzerland Cheese Ass’n, Inc. v. E. Horne’s Market, Inc., 385 U.S. 23, 87 S.Ct. 193, 17 L.Ed.2d 23 (1966), thus do not, as appellees contend, overrule the Glenmore holding concerning the appealability of an order dismissing a count for an injunction making a legally distinct claim, although it may be appropriate for us to give further consideration to that issue should it again arise.
. In the light of our holding of non-appeal-ability, we find it unnecessary to consider appellees’ suggestion that the appeal from the striking of the Clayton Act allegations was untimely in that this action by the judge was merely a reaffirmation of his ruling of October 25, 1969, supra, 305 F.Supp. 1251. In any event this suggestion could apply only to the second counterclaim.
Question: What is the general issue in the case?
A. criminal
B. civil rights
C. First Amendment
D. due process
E. privacy
F. labor relations
G. economic activity and regulation
H. miscellaneous
Answer:
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