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What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the interpretation of executive order or administrative regulation by the court favor the appellant?" This does include whether or not an executive order was lawful. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
GARDNER v. UNITED STATES FIDELITY & GUARANTY CO.
No. 629.
Circuit Court of Appeals, Tenth Circuit.
July 2, 1932.
Rehearing Denied Sept. 9,1932.
George M. Porter, of MeAlester, Okl., and H. A. Gardner, of Monett, Mo. (W. H. Fuller and J. L. Fuller, both of MeAlester, Okl., on the brief), for appellant.
Guy L. Andrews, of MeAlester, Okl. (H. L Aston, of MeAlester, Okl., on the brief), for appellee.
Before LEWIS, COTTERAL, and PHILLIPS, Circuit Judges.
Rehearing domed September 9, 1932.
COTTERAL, Circuit Judge.
The appellee company sued Gardner, the appellant, on two causes of action, one of them for damages on an indemnity contract against loss as surety on a railroad construction bond, and the other for premiums on numerous bonds. The appellant defended by answer and a counterclaim. A trial was had to a jury at Durant, Okl., and resulted in a directed verdict for the company. Later a judgment was rendered thereon at Muskogee, Okl. Gardner has appealed, assigning errors in the trial proceedings. The ease has been submitted on the merits and on objection to a consideration of the bill of exceptions on the ground that it was settled after the Muskogee term and no extension of time for settlement was granted at that term. The objection, if sustained, is determinative of the appeal.
The term at Durant was ordered by the District Judge to convene on July 15, 1931. That term was recessed, subject to call, on July 19,1931, but was not adjourned. Meantime, the trial occurred. When the evidence was closed, the plaintiff moved for directed verdicts on both causes of action and the counterclaim, the motions were sustained, and verdicts were returned accordingly. The journal of the court, approved by the District Judge, and dated October 2,1931, shows that a motion for a new trial filed on July 21, 1931, was overruled, that “judgment will be finally entered in this matter at Muskogee, on October 8th, 1931,” and added: “The clerk will notify the attorneys for the respective sides so that they may be present and save their exceptions and all matters preliminary to an appeal if they so desire.”
A comprehensive journal entry of record also bearing the approval of the judge recites, in substance: The trial commenced on July 16, 1931, plaintiff introduced its evidence on the first cause of action, the defendant announced in open court he confessed judgment on the second cause of action, the defendant introduced evidence in defense of the first cause of action, and in support of his counterclaim the plaintiff moved for directed verdicts on its first cause of action and the counterclaim, the motions were sustained, the jury returned verdicts for plaintiff on both causes of action and the counterclaim, the defendant was allowed five days to file a motion for a new trial, and entry of judgment was ordered stayed pending the motion, the motion was overruled on October 2, 1931, tbe ease was continued for further consideration until October 8, 1931, and on that date “the court renders the following judgment,” and it was considered, ordered, and adjudged' that plaintiff recover of defendant the aggregate amount of $9,651.16, with interest from July 16, 1931, and costs on the first cause of action, judgment was rendered for the aggregate amount of $4,724.31, with interest from July 16, 1931, and costs on the second cause of action, and judgment was rendered for plaintiff on the counterclaim, with costs.
The bill of exceptions was tendered for settlement and settled on January 5, 1932. The certificate of the trial judge recites that it-“was filed on the 5th day of December, 1932, within the time allowed for filing the bill of exceptions by order of the United States District Court * * * dated on the 5th day of January, 1932, and made at the January, 1932, Term of said court.” December 5, 1932, was an impossible date. The ilate of the extension, January 5, 1932, was the second day of the January, 1932, term at Muskogee, which began on Monday, January 4, 1932, and the term for the previous year had then closed, as terms are fixed by law on the first Monday in January of each year. Act of June 28, 1930, 46 Stat. c. 714 (28 USCA § 182), amending section 101, Judicial Code.
The question presented is whether the bill of exceptions was subject to settlement on January 5, 1932, after the close of the term at Muskogee, where the judgment was rendered on October 8,1931, without any extension being granted at that term. The courts have repeatedly decided that such settlement is not timely and invalid for want of jurisdiction.
In Stickel v. United States, 294 F. 808, 810 (8 C. C. A., opinion written by Judge Sanborn), the rule was held to be well settled that, “after the judgment term and after the expiration without farther extension of an extension beyond the term granted within the term the trial court has lost its jurisdiction to grant further extensions.” The Sixth Circuit expressly concurred in that decision. In re Bills of Exceptions, 37 F.(2d) 849. The question was again decided to the same effect in the Eighth Circuit. Great Northern L. I. Co. v. Dixon, 22 F.(2d) 655. and the same court followed the Dixon Case in Ritter v. Gulf, C. & S. F. Ry., 56 F.(2d) 369. Those decisions are clearly sound, and have our approval.
Counsel for appellant insist the judgment was rendered at Durant because the court journal recites when time was allowed for filing a motion for new trial, entry of the judgment was continued. But the language used must have been inadvertent, as no judgment was rendered at Durant, and the actual judgment is shown by the complete journal entry to have been rendered on October 8, 1931. True, the clerk had the duty under the applicable procedure in Oklahoma' to enter the judgment at once unless it was reserved; but the reservation was made.
Another contention is that the judgment was rendered at the Durant term on the second cause of action because it was confessed at that term. But it was for a part only of plaintiff’s demands, was not accepted by appellee, action was not there taken on the confession, or merged in a judgment. Section 814, Comp. Okl. Stat. 1921. The court treated the confession as an offer, and actually rendra ed judgment for both demands on October 8,193Í.
A question is raised with regard to the powers of the District Court to he exercised at the several terms in the Eastern District. The terms are separate and distinct at the different places. By the act cited, dates are specified for terms each year at Muskogee and nine other cities, and they are to be held annually at Pauls Yalley and Durant, as fixed by the District Judge. The Durant term was ordered by him to commence on July 15,1931. There are no divisions in the district. For that reason, the whole docket follows the court, and every ease is subject to assignment at any term. There is no tenable objection to the adjournment of any motion, proceeding, or judgment from one term to another. The court had the power to continue the rendition of judgment from the Durant term to the Muskogee term.
The bill of exceptions is said to have been properly settled, because of waiver or consent by appellee. It is stated by counsel for appellant that opposing counsel were present at the settlement and made no objection to it. This is said to have been such participation in the settlement as precluded later objection to it. But mere presence, if assumed, cannot he so construed. As authority for the implied waiver, E. I. Du Pont de Nemours & Co. v. Smith (C. C. A.) 249 F. 403, is cited. That case presupposes some part in making up the record. It discusses Waldron v. Waldron, 156 U. S. 361, 15 S. Ct. 383, 39 L. Ed. 453, approved in Old Nick Williams Co. v. United States, 215 U. S. 541, 30 S. Ct. 221, 54 L. Ed. 318, and Jennings v. Philadelphia, etc., Co., 218 U. S. 255, 31 S. Ct. 1, 2, 54 L. Ed. 1031. The Waldron Case was based on consent, given during the term. In the Williams Case the judgment was affirmed, as the writ of. error was not filed in time, because q£ a belated settlement of a hill of exceptions. In the Jennings Case it was said: “There should be express consent, or conduct which should equitably estop the opposite party from denying that he had consented.” There was neither in this case. Consent is ineffectual to authorize settlement after expiration o.f the term or of a period of a valid extension. Exporters of Mfrs’ Products v. Butterworth-Judson Co., 258 U. S. 365, 42 S. Ct. 331, 66 L. Ed. 663.
Our conclusion is that the settlement of the hill of exceptions occurred after the judgment term at Muskogee, when the trial judge had lost jurisdiction to act; and, as only errors in the trial proceedings, which may be brought into the record only by a bill of exceptions, are'urged in this court, the judgment appealed from should be, and it is, affirmed.
On Petition for Rehearing.
The appellant seeks a rehearing, supporting his petition by a certificate of the trial judge and an affidavit of counsel. We consider the showing, said to disclose “extraordinary circumstances,” and pass the question whether it is presented in time.
The certificate recites that the judge was absent from the district from December 15, 1931, until after January 1, 1932, returned on the latter date, and opened the new term on January 4, 1932. The affidavit sets out other matters: The bill of exceptions was originally served on appellee’s counsel December 5, 1931. Counsel for both parties learned after December 15 the judge would not return before January 1. They agreed it would be desirable to reach an agreement upon the contents of the bill of exceptions. Conferences resulted. Early in December many additions were requested by counsel for appellee and made. On December 26, they requested further changes. In order to comply with them and reach an agreement upon the bill, an extra stenographer- was employed, the bill was completed late on January 3 (Sunday), and then delivered to counsel for appellee. On January 5, counsel for both parties advised the judge they had agreed on the bill. It was then settled, and an appeal bond was fixed, after suggestions by respective counsel as to the amount. No evidence of an agreement was annexed to the bill.
In Taylor v. United States, 286 U. S. 1, 52 S. Ct. 466, 76 L. Ed. 951, there was an extension for settlement of a bill to May 17, 1931 (Sunday). On May 16, when the assistant district attorney completed examination of the bill, counsel for both parties sought the District Judge to obtain his signature but failing to find him agreed to ask his signature on May 18. “On that day with the express approval of all parties and 'in pursuance of the earlier agreement, the judge signed the bill. The considerable delay in settling the bill followed the request of the Assistant District Attorney in charge and was permitted for his convenience.” The bill bore the agreement of counsel. It was sustained, but the court negatived any intent to relax the general rule, citing Waldron v. Waldron, 156 U. S. 361, 15 S. Ct. 383, 39 L. Ed. 453.
It does not appear in this case whether the judgment term was open on January 2, 1932. If it was, then as the judge had re-? turned to the district, the bill might have been settled, or an extension obtained, on that day. The only extension, as stated in our previous decision, was on January 5. There was no agreed settlement of the bill. Assuming the agreement on the contents of the bill was equivalent, it does not appear to have been reached before counsel advised the judge to that effect on January 5. That date was too late for either an extension or agreement.
The absence of requisite facts is fatal to-the validity of the bill.
The rehearing is therefore denied.
Question: Did the interpretation of executive order or administrative regulation by the court favor the appellant? This does include whether or not an executive order was lawful.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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songer_casetyp1_7-2
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A
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation".
COMMISSIONER OF INTERNAL REVENUE, Petitioner, v. The AMERICAN METAL CO., Limited, Respondent. The AMERICAN METAL CO., Limited, Petitioner, v. COMMISSIONER OF INTERNAL REVENUE, Respondent.
No. 29, Docket 22907.
United States Court of Appeals, Second Circuit.
Argued Nov. 4, 1954.
Decided March. 15, 1955.
Sullivan & Cromwell, New York City (Norris Darrell, John F. Dooling, Jr., New York City, Robert MacCrate, Port Washington, N. Y., of counsel), for The American Metal Company, Limited.
H. Brian Holland, Asst. Atty. Gen., Ellis N. Slack, Lee A. Jackson, Melva M. Graney, Sp. Assts. to Atty. Gen., for the Commissioner of Internal Revenue.
Before CHASE, MEDINA, and HINCKS, Circuit Judges.
HINCKS, Circuit Judge.
The taxpayer whose petition is before us, is a New York corporation which owns over 98% of the voting stock of Compañía Minera de Penóles, S.A., a Mexican corporation (hereinafter referred to as “Minera”). Minera, from 1924 through 1947, has been in the business of mining, milling, smelting and refining non-ferrous metals. In 1934, the smelting and refining operations were carried on by a Mexican corporate subsidiary of Minera, called Metalúrgica. In 1947, Minera paid a taxable dividend to its shareholders in United States money in the amount of $8,250,000. Of this amount the taxpayer received $8,-110,932.50. The taxpayer filed a consolidated income tax for the year 1947 claiming as credit certain Production Taxes paid by Minera to the Mexican government from 1924 through 1947. The Commissioner allowed a credit for taxes paid by Minera under the Mexican Income Tax Law but refused to allow any credit for the payment to Mexico of so-called Production Taxes as imposed by the Mexican Mining Tax Law.
The taxpayer’s petition presents this question: Were the Production Taxes paid by Minera under the Mexican Mining Tax Law income taxes or taxes in lieu of income taxes within the meaning of Section 131(a) (1) or (h) of the Internal Revenue Code, 26 U.S.C.A. § 131(a) (1), (h) ? Only if the question requires an affirmative answer is the taxpayer entitled to the credit which it seeks by its pending petition to establish.
In a well reasoned opinion, 19 T.C. 879, the Tax Court held that the Production Taxes in question were not income taxes or taxes in lieu of income taxes within the meaning of I.R.C. Section 131(a) (1) or (h). The taxpayer-petitioner now contends that this holding was erroneous in that the court failed to find and give effect to facts claimed to be fully established by the evidence as follows:
“Mining is in Mexico a main source of the national economy. Under Mexican law, the mineral wealth of the nation is the property of the nation and not of the landowner. The landowner in Mexico has no right to the minerals under his land nor to explore for them; only the one who has received a mining concession from the Government can explore for minerals.
“While the miner in Mexico derives his right to mine by Government concession, that concession confers upon him no ownership in metals or minerals in the earth but only the right to explore for them, and when he has discovered them to turn them to his own account or profit by removing them from the. sub-soil. This is so far true that if a mining concessionaire forfeits or surrenders his mining concession, ore that he has broken and left inside the mine is not his property but reverts to the Government of Mexico as its property.
“Customarily, the Mexican miner sells his ore to a smelter or foundry and sells it on the basis of the current New York price of the recoverable metal content of the ore less processing, transportation and commission costs and- less the Production Taxes (which are also based on the New York price). The New York price is normally determined by world supply and demand and not by the Production Taxes nor by the Mexican miner’s costs which vary from mine to mine between wide extremes.
“ ‘Commercial ore’ is material, the value of the recoverable arid salable metal of which is such as to yield more than the costs necessary to get. the metals in available form.
“Hence, whether a mine will be opened up at all, depends upon the estimated value of the salable metals recoverable from the ore weighed against the estimated cost of working the particular metal-bearing body, including the cost of the property, of opening the mine, and of equipping and operating it and taking into account also the grade of the ore body, the uniformity of that grade, the size of the ore body, its location with relation to transportation facilities, treatment plants and natural land barriers and the type of mining possible with that ore body.- Existing mines which have been once opened and worked are not continued in operation unless metal prices are such as to make operation profitable, and declines in market prices of metals result in shutting down mines, while increases in metal prices bring mines that have been shut down back into operation.
“Broadly, price determines whether there is commercial ore in a mine and whether and how long and when the mine will operate. The market prices of the metals occurring in Minera ores varied widely over the years 1924 to 1947; lead ranged from 30 a pound to 150 a pound, zinc from 2.550 a pound to loy2-0 a pound, silver from 25.010 an ounce to 90.120 an ounce, and copper from 4.910 a pound to 22.190 a pound. Mining costs, on the other hand, at any point of time, vary widely from mine to mine and in particular vary widely as among the metal mines in Mexico, the variation depending on the type of ore body and the feasible rate of mining, among many other factors.
“Within a single mine where ore of varying grades is found, the richest ore will always be mined first even in an era of abnormally high prices which would enable the miners to extract at a profit those leaner ores in the same mine that could not be mined at a profit when normal metal prices prevail. It is a principle in mining, and a prevalent practice in the industry, that the miners extract the high grade ores first and as quickly as they can up to the limit of their milling capacity and do not in a period of high prices divert to low grade ores.
“Miners do not, in principle, extract ore at all when it cannot be disposed of at a profit, unless some special physical condition makes that imperative and unless they can afford to store the extracted ore pending an expected rise in the market price. Nor are mines generally operated when prices are believed to be temporarily depressed merely because a narrow profit margin appears to be possible at those prices, particularly if the mine is a new one. In such circumstances, the mine would be shut down until prices increased. And so, too, as to opening a new mine, a mine will not be opened up on the basis of a price level believed to be only temporary, for it takes three to five years to open a mine. On the other hand, metallurgical advances, alone or coupled with price advances, can give minable character to ore once passed over as waste.
“Since a mine is a wasting asset, the life of which is exhausted by extraction of the ore, it is basic in mining that ore will not be removed from the mine at a loss when prices are low.”
As to so much of this material not incorporated in the express findings of the Tax Court, we think it fairly apparent from its opinion that it treated all the facts just recited as proved and gave due consideration thereto. However that may be, we will assume for present purposes that the facts above stated were indeed proved. But even on that assumption we hold that the decision of the Tax Court was correct.
The primary objective of Section 131 is to prevent double taxation and a secondary objective is to encourage American foreign trade. See Burnet v. Chicago Portrait Co., 285 U.S. 1, 52 S.Ct. 275, 76 L.Ed. 587. Whether the special and peculiar facts of a given case comes within the meaning of 131(a) (1) or (h) is a question to be determined in the light of the established and settled policy against double income taxation. The pertinent cases hold that the determinative question is “whether the foreign tax is the substantial equivalent of an 'income tax’ as that term is understood in the United States.” See New York & Honduras Rosario Min. Co. v. Commissioner, 2 Cir., 168 F.2d 745, 747, 12 A.L.R.2d 355; Biddle v. Commissioner, 302 U.S. 573, 58 S.Ct. 379, 82 L.Ed. 431; Keasbey & Mattison Co. v. Rothensies, 3 Cir., 133 F.2d 894.
The Mexican Production Tax is stated in the Mexican Mining Law of 1934 to be one laid “on the production of metals” and “on metal production.” It attaches when the ore is extracted from the subsoil, irrespective of its sale or its transportation to a smelter or its further processing. The ores in the earth under Mexican law were part of the patrimony of the sovereign and, as taxpayer’s expert testified, “The miner takes them out of that deposit and puts them into the economic current of things, and thereby, to me, he creates wealth. His creation of wealth is what, in my opinion, is subject to the tax.” To us that means no more than that the Production Tax is one levied on the privilege of extracting from the sub-soil ore belonging to the nation.
The taxpayer points, on the one hand, to the Mexican Mining Law of 1926 which “restored the ancient work requirement and made it a condition to the continuance of the concession * * * while continuing the Surface Tax in effect,” and to the Mining Law of 1934 which from that time forward conditioned the continuance of the miner’s “concession on the dual requirement of paying the Surface Tax and working the mine.” And, on the other hand, the taxpayer points to the fact, which we accept as proved, that the payment of an accrued Production Tax is not a condition to the continuance of the miner’s concession. From this it is argued that the Production Tax is not a privilege tax because the Mexican Mining Law imposes as the price of the miner’s privilege “the performance of the work requirement and the payment of the Surface Tax.”
We think this argument specious. Forfeiture of the privilege for non-payment is not the exclusive badge of a privilege tax. Whether, for present purposes, the Production Tax is a privilege tax must depend not upon forfeiture conditioned on non-payment nor upon the absence of label in the enacting law, — but upon the nature and effect of the tax. Flint v. Stone Tracy Co., 220 U.S. 107, 31 S.Ct. 342, 55 L.Ed. 389. Indeed the Surface Tax, which is imposed by Chapter II of the Mining Law and which the taxpayer for purpose of this argument seems to classify as a privilege tax is not so labelled. It is based on the area of the concession: for a concession exceeding one hundred claims it imposes a tax of only $15 annually per claim. And the “work requirement,” which constitutes the other condition to the concession, is described by taxpayer’s expert in Mexican law as the subject matter of ordinances requiring “that four men at least should be employed for a minimum time during each year working in the mine.” The mere fact that the miner’s concession is thus conditioned on a “price” based on area and a minimum work requirement does not mean that the Production Tax, which is based “on the production of metals” in the ore belonging to the sovereign which, the miner extracts and thereby is allowed to appropriate, is other than a privilege tax.
In this connection, the taxpayer relies on our decision in New York & Honduras Rosario Min. Co. v. Commissioner, 2 Cir., 168 F.2d 745. It is true that in that opinion we thought it “not without significance” that under the Honduras Mining Code genuine excise taxes, somewhat similar to the Mexican “Surface Tax,” were imposed in addition to the' “income tax” also imposed. However, the determinative factor which lead us to classify the tax there in question as an “income "tax”, we stated as follows: “It is not laid on value of the minerals mined but on ‘the amount received from its exports,’ i.-e. gross income, less operating expenses within Honduras and expenses abroad directly applicable to management of' the" mines, plus reasonable deductions for amortization and depletion.” ■ The characteristics of the 1 Production Tax here' involved are essentially antithetical to those of the Honduran income tax'. And the fact that oré belonging to the nation is released to the mineT who is subject to the tax forthwith upon the extraction of the ore, marks the Mexican Production Tax more clearly and certainly as a privilege tax than'the Quebec.tax which was held to ' be an éxcise tax in. Keasbey & Mattison Co. v. Rothensies, 3 Cir., 133 F.2d 894, certiorari denied 320 U.S. 739, 64 S.Ct. 39, 88 L.Ed. 438, which cites numerous cases which lend still further support to our conclusion.
The fact that Mexican law imposes one privilege tax, the Surface Tax, no more imports that the Production Tax or other taxes are not also privilege taxes than the presence in the Mexican Tax structure of an income tax law imports that the Production Tax is not an income tax.
Our conclusion is not shaken by the taxpayer’s ingenious argument that in effect the Production Tax is the equivalent of a tax on the proceeds of mining operations. The argument is based upon American cases which hold,, for purposes of domestic taxation, that the proceeds of mining constitute gross income as distinguished from a return of invested capital. We.think such cases wholly irrelevant' to the problem here presented. For the Mexican Production Tax is not imposed on the proceeds of mining. Again it is necessary to point out that it is imposed on the privilege of extracting the ore irrespective of the realization of cash proceeds.
In this connection the taxpayer relies especially on Stratton’s Independence v. Howbert, 231 U.S. 399, 34 S.Ct. 136, 142, 58 L.Ed. 285, in which the court was concerned with our federal Corporation Tax Law of 1909, 36 Stat. 11, 112, which imposed an excise tax'on the privilege of doing business in a corporate capacity, the tax being measured'by thé taxpayer’s “ ‘entire net' income’ as defined. As the taxpayer here points out, the court did indeed hold that the entire proceeds of mining were income without deduction on account of the value of the ore in situ which after extraction had been converted into proceeds. In this aspect the ease seems to support the argument that extracted ore is income in kind irrespective of its realization as cash income. But the taxpayer seems to overlook the fact that that tax, enacted in 1909 prior to the Sixteenth Amendment, was sustained as an excise tax and not as an income tax over the contention that in effect it was the “equivalent to a direct tax upon the property, and hence unconstitutional.” The court held that the tax was none the less an excise tax because Congress, in adapting “income as the measure of the tax * * * desired that the excise should be imposed, approximately at least, with regard to the amount of benefit presumably derived by such corporations from the current operations of the government.” By a parity of reasoning, we think the Supreme Court would hold that the Mexican Production Tax was an excise tax even though its measure was such as to reflect, at least approximately, “the amount of benefit presumably derived” by the taxpayers from appropriating to themselves a portion of the national patrimony. Thus the real thrust of the case is destructive of this branch of the taxpayer’s argument.
The taxpayer further contends that the Production Taxes are income taxes “of a formulary kind.” He argues that the Production Tax is characterized as an income tax at least in part because of its “profit objective” as affecting the mining industry. It is true that under the statutory scheme the rate of tax applicable to the metal severed varies progressively with the price of the metal in the world market. Since obviously the price of the metal affects the miner’s profit we agree that the proofs establish a legislative intent that the contribution of the mining industry to the national economy should vary with a factor which affects the prosperity of the industry generally. Let it be granted that the state in fixing the tax rate sought to obtain as much tax income as could be done without killing the goose that laid the golden egg. Nevertheless, this does not mean that the Production Tax is one on the profits of the miner. For as already noted it attaches even if the individual miner makes no profits, — even if, having severed the ore, he makes no sales. More truly, we think, this incident of the tax scheme betokens an intent that the price of the privilege granted the miner shall vary with the value of the privilege measured both by the loss of the ore to the state which grants the privilege and the acquisition of the ore by the miner. Merely because the state charges more for the release of its ore when the value thereof is high does not mean that the charge is a tax on the miner’s profits.
The taxpayer seeks further to buttress this line of argument by pointing to the fact that the Production Taxes provide discounts for low grade ores, special discounts which recognize the extraordinary cost of extraction in the case .of gold and silver found in zinc concentrates, and temporary discounts given to new and newly reopened mines the working of which involve extraordinary expense. But these, too, are factors which affect the value of the privilege. Their presence in the tax scheme is not so much indicative of legislative intent to tax the miner’s profits as of intent to realize, through a privilege tax, on a natural asset on a basis which at least approximately reflects its current value.
Nor has the taxpayer succeeded in demonstrating that the Production Tax is a “formulary” income tax because it “compliments” the Mexican Income Tax law. It is true, as it points out (although in another connection), that the overall tax scheme of Mexico includes an income tax, — one which satisfies the the American concept of an income tax. Schedule I of this tax law taxes income derived from capital and personal effort invested in industry, commerce and agriculture; income from personal effort being taxed at the lowest rate, income from investments at the highest rate, and income from combined cápital and labor at an intermediate rate. The tax under this Schedule is a tax on gross income less authorized deductions but although applicable to miners — as are also Schedules II and III — allows no deductions for depletion. Furthermore, we accept as proved the taxpayer’s assertion that except for mining enterprises the tax under Schedule I is imposed at a higher rate on businesses which require a concession from the state. If on such facts it had been shown that the impact of the Production Tax on miners was substantially the same as the differential between the income tax on miners and the income tax on other industries operating under government concessions or even that the Production Tax was imposed to equalize this differential in the income tax law, there would be more room for the conclusion that the Production Tax was what taxpayer calls a “formulary” income tax within the reach of the holding in Seatrain Lines, Inc., v. Commissioner, 46 B.T.A. 1076, which the taxpayer cites to. the point.
But such evidence is lacking here. At most, we have the conclusion of the taxpayer’s Mexican tax expert that the special tax rate provided by Schedule I for application to business operating under government concessions was not made to apply to businesses enjoying a mining concession “because it is deemed that those concerns, mining concerns pay an additional tax which is complimentary of the income tax.” (Emphasis supplied.) This, we think, wholly inadequate to bring the Production Tax within the Seatrain doctrine even assuming, as we do,- that the “additional .tax” to which the expert referred was the Production Tax. This vague • language of the expert, we think, may not be taken as proof that the Production Tax was substantially effective or even designed to equalize differentials in the impact of Mexican laws taxing income or to serve administrative convenience in the computation of a tax on income. It is by no means clear to us that by “complimentary” the taxpayer’s expert meant any more than “additional” or supplementary. However that may be, such conclusionary testimony is inadequate to support the taxpayer’s contention that the Production Tax has the essential characteristics of our American income tax. Certainly it is vitally different from the Cuban Tax with which the Seatrain case was concerned. And Keen v. Commissioner, 15 B.T.A. 1243, which taxpayer also cites to this point, we think in conflict with the later decision of the Supreme Court in Biddle v. Commissioner, supra.
What has been said, we think, sufficiently disposes of taxpayer’s final contention that the Production Tax is at least one “paid in lieu of a tax upon income” within the meaning of that provision of the Revenue Act of 1942 which is now incorporated in I.R.C. Section 131(h). We do not need to decide whether, as taxpayer claims, Regulation 111, Section 29.131-2 is unduly restrictive of the 1942 amendment, the liberalizing objective of which we fully recognize. For the reasoning which has lead us to classify the Production Tax as an excise, not an income, tax equally requires the conclusion that it has not been shown to be a tax “in lieu of a tax upon income.” We so hold.
This brings us to the Commissioner’s petition to review the holding of the Tax Court that the credit to which the taxpayer was concededly entitled on account of Minera’s payment of income taxes to Mexico in past years had not been improperly computed in that, in the computation, said tax payments had not been discounted to reflect the rate of exchange prevailing in 1947 when Min-era’s dividend was paid to the taxpayer.
The Commissioner takes the position that Section 131(a), which creates the credit, allows it only to the extent of “the amount of any income * * * taxes paid * * * during the taxable year to any foreign country * * He contends that in so providing Section 131 creates a statutory presumption that the income taxes paid by Minera in prior years were paid by the taxpayer in the taxable year. This, he contends, requires that, in computing the credit allowable in this case, the taxes paid by Minera to Mexico in pesos in former years should be discounted to reflect the rate of exchange prevailing in the taxable year when the dividend was paid.
I.R.C. Section 131, which in paragraph (a) (1) authorizes the credit, contains in paragraph (f) (1) thereof 3 the formula for its computation in cases in which a domestic taxpayer corporation shall have received dividends in any taxable year from a foreign subsidiary corporation which has paid income taxes to a foreign country. The formula provides that the domestic corporation “shall be deemed to have paid the same proportion of any income * * * taxes paid * * * by such foreign corporation * * *, upon or with respect to the accumulated profits of such foreign corporation from which such dividends were paid, which the amount of such dividends bears to the amount of such accumulated profits.” Paragraph (f) further provides that the dividend paid by the foreign subsidiary shall be treated “as having been paid from the accumulated profits of the preceding year or years” and “as having been paid from the most recently accumulated gains, profits, or earnings” of the foreign subsidiary. Thus paragraph (f) clearly imports that the allowable credit is not restricted to foreign taxes paid by the subsidiary in the taxable year in which the dividend was received by the domestic parent. Instead, the credit is measured by a defined proportion of the foreign income taxes paid upon “the accumulated profits of such foreign corporation from which such dividends were paid.” Consequently, foreign income taxes paid in prior years may be reflected in the allowable credit if they had been imposed on the accumulated profits from which the dividend was deemed to have been paid. We do not understand the Commissioner to dispute this: his contention is limited, as above indicated, to the method of computing the credit for the foreign income taxes paid in prior years.
It seems to us that the gist of the formula of paragraph (f) is the prescribed relationship between the foreign tax paid by the foreign subsidiary and its accumulated profits from which the dividend was paid and upon which the tax paid was imposed as that relationship existed when the taxes were paid and the profits were deemed to have been accumulated; and that, in the case of a foreign subsidiary conducting its business in foreign currency for purposes of computing the credit under Section 131 both these factors of the relationship must be expressed in terms of the same currency. If that be done, it will not affect the result whether the rate of exchange be that prevailing when the foreign tax was paid and the relevant profits accumulated or that prevailing when the dividend was paid by the foreign subsidiary to its domestic parent.
However, that problem is not presented here. Minera’s dividend to the taxpayer was paid in dollars and throughout all the years involved it conducted its business on the basis of the American dollar. Not only were its profits accumulated on that basis but also the taxes which it paid to Mexico. It is true that its tax payments to Mexico were made in pesos but the pesos used for this purpose, like pesos expended for other purposes, were obtained by converting American dollars into pesos at the contemporary rate of exchange. And such .income items as it received in pesos were similarly converted into dollars and so recorded on its books. As a result, we fully agree with the Tax Court that no problem in foreign exchange is presented which requires solution for the computation of the allowable credit.
We conclude that the Tax Court was right in its decision of the..questions raised by both petitions.
Affirmed.
. I.R.C. Ҥ 131. Taxes of foreign countries and possessions of United States
“(a) Allowance of credit. If the taxpayer chooses to have the benefits of this section, the tax imposed by this chapter, except the tax imposed under section 102, shall be credited with:
“(1) Citizens and domestic corporations. In the case of a citizen of the United States and of a domestic corporation, the amount of any income, war-profits, and excess-profits taxes paid or accrued during the taxable year to any foreign country or to any possession of the United States;
*****
“(h) Credit for taxes in lieu of income, etc., taxes. For the purposes of this section and section 23(c) (1), the term ‘income, war-profits, and excess-profits taxes’ shall include a tax paid in lieu of a tax upon income, war-profits, or excess-profits otherwise generally imposed by any foreign country or by any possession of the United States. * * ”
. I.R.C. Section 131.
“ * * * (f) Taxes of foreign subsidiary.
“(1) Foreign subsidiary of domestic corporation. For the purposes of this section, a domestic corporation which owns a majority of the voting stock of a foreign corporation from which it receives dividends in any taxable year shall be deemed to have paid the same proportion of any income, war-profits, or excess-profits taxes paid or deemed to be paid by such foreign corporation to any foreign country or to any possession of the United States, upon or with respect to the accumulated profits of such foreign corporation from which such dividends were paid, which the amount of such dividends bears to the amount of such accumulated profits. The term ‘ae-cumulated profits’ when used in this subsection in reference to a foreign corporation, means the amount of its gains, profits, or income in excess of the income, war-profits, and excess-profits taxes imposed upon or with respect to such profits or income; and the Commissioner with the approval of the Secretary shall have full power to determine from the accumulated profits of what year or years such dividends were paid; treating dividends paid in the first sixty days of any year as having been paid from the accumulated profits of the preceding year or years (unless to his satisfaction shown otherwise), and in other respects treating dividends as having been paid from the most recently accumulated gains, profits, or earnings.”
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_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.
FABRICUT, INC., Appellant and Cross-Appellee, v. TULSA GENERAL DRIVERS, WAREHOUSEMEN AND HELPERS, LOCAL 523, and Melvis Minter, Raphael Stokes, Charles T. Frazier and Jackson Cato, Appellees and Cross-Appellants.
Nos. 77-1962, 77-1963.
United States Court of Appeals, Tenth Circuit.
Argued March 14, 1979.
Decided April 23, 1979.
William D. Toney, Tulsa, Okl. (Gilker & Swan, Fort Smith, Ark., with him on briefs), for appellant and cross-appellee.
Maynard I. Ungerman, Tulsa, Okl. (Ungerman, Ungerman, Marvin, Weinstein & Glass, Tulsa, Okl., with him on briefs) for appellees and cross-appellants.
Before McWILLIAMS, BREITENSTEIN and DOYLE, Circuit Judges.
BREITENSTEIN, Circuit Judge.
This action was brought under 29 U.S.C. § 185 by an employer to set aside an arbitration award which reduced the penalty which the employer had imposed. The defendants counterclaimed for enforcement and sought recovery of attorneys’ fees. The district court upheld the award, decreed enforcement, and denied attorneys’ fees. Both the employer and the employees have appealed. We affirm.
Plaintiff Fabricut, Inc., is in the business of processing and distributing decorative fabrics at Tulsa, Oklahoma. Defendant Tulsa General Drivers, Warehousemen and Helpers, Local 523 (the Union), represents Fabricut’s production employees. This dispute is governed by a November 15, 1973, collective bargaining agreement.
On September 3, 1975, Fabricut assigned mandatory overtime to all of its employees. Several employees left the premises at the end of the normal working period without obtaining prior approval. When these employees, including the defendants Minter, Stokes, Frazier and Cato, arrived for work on the following day, they found that they had been discharged.
Pursuant to the bargaining agreement, grievances were instituted and culminated in the submission of the dispute to an Arbitrator. He held that the company did not have just cause for the discharges, reduced the penalty to a one-month suspension, and directed Fabricut to reinstate the employees with seniority, back pay, and accrued benefits to the end of the suspension period.
Fabricut then sued to set aside the award on the ground that the Arbitrator had exceeded the authority given him by the bargaining agreement. By agreement the parties presented separate motions for summary judgment. The facts are not disputed. The district court granted summary judgment for the defendants and ordered enforcement of the award but denied the defendants’ claims for attorneys’ fees.
In Mistletoe Express Service v. Motor Expressmen's Union, 10 Cir., 566 F.2d 692, 694, we discussed the narrow scope of judicial review of arbitration awards in the light of decided cases. We have no need to repeat what we there said. It is enough to say that the courts do not review the merits of an award. The test is whether an arbitration award “draws its essence from the collective bargaining agreement.” The award may not be contrary to the express language of the agreement, and must have rational support. The stated principles are applicable here.
The collective bargaining agreement is not a model of clarity or consistency. The dispute relates to the construction and application of various provisions of the agreement. The employer asserts that its discharge penalty is authorized and that the Arbitrator exceeded his authority in substituting his penalty for that of the employer. Determination of the issues requires analysis of various contract provisions.
Section 1 of Art. XXVII, “No Strike — No Lockout” contains an agreement by the Union not to authorize or encourage any form of work stoppage, including refusals to work overtime. The employer does not claim Union action in connection with the unexcused refusals of the individual defendants to work overtime.
Section 2 of the same article authorizes the employer to “discipline and/or discharge any employee who instigates, participates, or gives leadership to any actions of [sic] conduct proscribed by Section 1.” The Arbitrator held that Art. XXVII did not apply because it relates to Union activity which requires “concerted” action. The § 1 inhibitions on Union conduct imply some sort of group action, and that did not occur. The discharged employees acted individually. The Union did not authorize or encourage the refusals to work. The record sustains the Arbitrator’s finding of no concerted action. Accordingly, Art. XXVII does not support either discharge or discipline.
The overtime provision, Art. XII, § 3, provides that failure to perform assigned overtime work will be considered as an unexcused absence. The authorized penalty for unexcused absences, Art. VIII, § 4, is discharge when there are three unexcused absences in . a two-month period. The agreement says nothing about a penalty for less than the stated unexcused absences.
The individual defendants violated the agreement by not performing the assigned overtime. The Arbitrator held: “[t]here is no doubt whatsoever that there was every justification for disciplining the grievants,” for their “self help” insubordination in refusing to work overtime. The defendants do not contest this holding. Thus, the Arbitrator found a contract violation for which the contract stated no penalty. The question then is the authority of the Arbitrator to impose a penalty which he deemed reasonable.
Art. XVI, “Grievance and Arbitration,” says, § 1, that its purpose “is to provide an orderly method for the settlement of disputes between the parties * * * over the interpretation, application, or claimed violation of any of the provisions of this Agreement.” A three-step grievance procedure is followed by arbitration. Among the limitations placed on the powers of the Arbitrator by Art. XVI, § 3(b), are:
“3) He shall have no power to add to, subtract from, or modify any of the terms of this Agreement.
4) He shall have no power to substitute his discretion for the Company’s discretion in cases where the Company is given discretion in this Agreement.”
The Arbitrator had authority to settle the dispute. In the absence of a contract specified penalty, the Arbitrator could fashion a reasonable penalty. In so doing he did not change the contract. He was making the contract workable. It would not be workable if an insubordinate employee could resort to “self help” and violate the contract with impunity. The employer imposed a penalty not authorized by the contract, and, hence, beyond its discretionary power. The limitation on the Arbitrator’s powers by Art. XVI, § 3(b)(4), has no pertinence.
In Mistletoe we set aside an arbitration award which reduced a penalty from discharge to suspension. In that case there was a violation of a specific contract provision which expressly provided for discharge. In the case at bar no such provision is presented. Instead there is a contract violation which carries no stated penalty. The Arbitrator correctly rejected the employer-imposed penalty. In the light of the declared purposes of the grievance and arbitration procedure and under the powers given to the Arbitrator, he had the power to fashion what he deemed a proper penalty. When viewed in the light of the entire agreement, its context, and intent, the Arbitrator’s award has rational support. Mistletoe, 566 F.2d at 694. We accept and affirm the award.
Defendants object to the refusal of the district court to award them attorneys’ fees. In an action brought by a union to enforce an arbitration award, the allowance of attorneys’ fees is discretionary. See International Union of Dist. 50, U.M.W.A. v. Bowman Transportation Co., 5 Cir., 421 F.2d 934, 935, and Local No. 149 v. American Brake Shoe Co., 4 Cir., 298 F.2d 212, 216. F. D. Rich Co., Inc. v. Industrial Lumber Co., 417 U.S. 116, 129, 94 S.Ct. 2157, 2165, 40 L.Ed.2d 703, recognizes that a successful party may recover attorneys’ fees “when his opponent has acted in bad faith, vexatiously, wantonly, or for oppressive reasons.” See also Alyeska Pipeline Co. v. Wilderness Society, 421 U.S. 240, 258-259, 95 S.Ct. 1612, 44 L.Ed.2d 141. In denying attorneys’ fees the trial court said:
“In the instant case, the Court has reviewed the transcript of the arbitration proceedings, the arbitrator’s award, and all of the pleadings and has concluded that the plaintiff [employer] did not act in bad faith and was not without justification for challenging the arbitrator’s award.”
M We agree with the trial court. The employer had substantial grounds for contesting in good faith the Arbitrator’s award. Denial of attorneys’ fees was not an abuse of discretion.
Affirmed.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
|
songer_opinstat
|
B
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify whether the opinion writter is identified in the opinion or whether the opinion was per curiam.
BIG Y SUPERMARKETS, INC., Plaintiff, Appellant, v. Frank W. McCULLOCH et al., Defendants, Appellees.
No. 6895.
United States Court of Appeals First Circuit.
June 12, 1967.
Jay S. Siegel, Hartford, Conn., for appellant.
Michael N. Sohn, Washington, D. C., Attorney, with whom Arnold Ordman, General Counsel, Dominick L. Manoli, Associate General Counsel, and Gary Green, Marcel Mallet-Prevost, Asst. Gen. Counsel, Washington, D. C., Attorney, were on brief, for appellees.
Before ALDRICH, Chief Judge, Mc~ ENTEE and COFFIN, Circuit Judges.
PER CURIAM.
The judgment of the district court is affirmed on the opinion below. See also Greensboro Hosiery Mills, Inc. v. Johnston, 4 Cir., 1967, 377 F.2d 28 (5/12/67).
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:
|
sc_casedisposition
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed. The information relevant to this variable may be found near the end of the summary that begins on the title page of each case, or preferably at the very end of the opinion of the Court. For cases in which the Court granted a motion to dismiss, consider "petition denied or appeal dismissed". There is "no disposition" if the Court denied a motion to dismiss.
BRADY v. UNITED STATES
No. 270.
Argued November 18, 1969
Decided May 4, 1970
Peter J. Adang, by appointment of the Court, 396 U. S. 809, argued the cause and filed a brief for petitioner.
Joseph J. Connolly argued the cause for the United States. With him on the brief were Solicitor General Griswold, Assistant Attorney General Wilson, Jerome M. Feit, and Marshall Tamor Golding.
Mr. Justice White
delivered the opinion of the Court.
In 1959, petitioner was charged with kidnaping in violation of 18 U. S. C. § 1201 (a). Since the indictment charged that the victim of the kidnaping was not liberated unharmed, petitioner faced a maximum penalty of death if the verdict of the jury should so recommend. Petitioner, represented by competent counsel throughout, first elected to plead not guilty. Apparently because the trial judge was unwilling to try the case without a jury, petitioner made no serious attempt to reduce the possibility of a death penalty by waiving a jury trial. Upon learning that his codefendant, who had confessed to the authorities, would plead guilty and be available to testify against him, petitioner changed his plea to guilty. His plea was accepted after the trial judge twice questioned him as to the voluntariness of his plea. Petitioner was sentenced to 50 years’ imprisonment, later reduced to 30.
In 1967, petitioner sought relief under 28 TJ. S. C. § 2255, claiming that his plea of guilty was not voluntarily given because § 1201 (a) operated to coerce his plea, because his counsel exerted impermissible pressure upon him, and because his plea was induced by representations with respect to reduction of sentence and clemency. It was also alleged that the trial judge had not fully complied with Rule 11 of the Federal Rules of Criminal Procedure.
After a hearing, the District Court for the District of New Mexico denied relief. According to the District Court's findings, petitioner’s counsel did not put impermissible pressure on petitioner to plead guilty and no representations were made with respect to a reduced sentence or clemency. The court held that § 1201 (a) was constitutional and found that petitioner decided to plead guilty when he learned that his codefendant was going to plead guilty: petitioner pleaded guilty “by reason of other matters and not by reason of the statute” or because of any acts of the trial judge. The court concluded that “the plea was voluntarily and knowingly made.”
The Court of Appeals for the Tenth Circuit affirmed, determining that the District Court’s findings were supported by substantial evidence and specifically approving the finding that petitioner’s plea of guilty was voluntary. 404 F. 2d 601 (1968). We granted certiorari, 395 U. S. 976 (1969), to consider the claim that the Court of Appeals was in error in not reaching a contrary result on the authority of this Court’s decision in United States v. Jackson, 390 U. S. 570 (1968). We affirm.
I
In United States v. Jackson, supra, the defendants were indicted under § 1201 (a). The District Court dismissed the § 1201 (a) count of the indictment, holding the statute unconstitutional because it permitted imposition of the death sentence only upon a jury’s recommendation and thereby made the risk of death the price of a jury trial. This Court held the statute valid, except for the death penalty provision; with respect to the latter, the Court agreed with the trial court “that the death penalty provision . . . imposes an impermissible burden upon the exercise of a constitutional right . . . 390 U. S., at 572. The problem was to determine “whether the Constitution permits the establishment of such a death penalty, applicable only to those defendants who assert the right to contest their guilt before a jury.” 390 U. S., at 581. The inevitable effect of the provision was said to be to discourage assertion of the Fifth Amendment right not to plead guilty and to deter exercise of the Sixth Amendment right to demand a jury trial. Because the legitimate goal of limiting the death penalty to cases in which a jury recommends it could be achieved without penalizing those defendants who plead not guilty and elect a jury trial, the death penalty provision “needlessly penalize [d] the assertion of a constitutional right,” 390 U. S., at 583, and was therefore unconstitutional.
Since the “inevitable effect” of the death penalty provision of § 1201 (a) was said by the Court to be the needless encouragement of pleas of guilty and waivers of jury trial, Brady contends that Jackson requires the invalidation of every plea of guilty entered under that section, at least when the fear of death is shown to have been a factor in the plea. Petitioner, however, has read far too much into the Jackson opinion.
The Court made it clear in Jackson that it was not holding § 1201 (a) inherently coercive of guilty pleas: “the fact that the Federal Kidnaping Act tends to discourage defendants from insisting upon their innocence, and demanding trial by jury hardly implies that every defendant who enters a guilty plea to a charge under the Act does so involuntarily.” 390 U. S., at 583. Cited in support of this statement, 390 U. S., at 583 n. 25, was Laboy v. New Jersey, 266 F. Supp. 581 (D. C. N. J. 1967), where a plea of guilty (non vult) under a similar statute was sustained as voluntary in spite of the fact, as found by the District Court, that the defendant was greatly upset by the possibility of receiving the death penalty.
Moreover, the Court in Jackson rejected a suggestion that the death penalty provision of § 1201 (a) be saved by prohibiting in capital kidnaping cases all guilty pleas and jury waivers, “however clear [the defendants’] guilt and however strong their desire to acknowledge it in order to spare themselves and their families the spectacle and expense of protracted courtroom proceedings.” “[T]hat jury waivers and guilty pleas may occasionally be rejected” was no ground for automatically rejecting all guilty pleas under the statute, for such a rule “would rob the criminal process of much of its flexibility.” 390 U. S., at 584.
Plainly, it seems to us, Jackson ruled neither that all pleas of guilty encouraged by the fear of a possible death sentence are involuntary pleas nor that such encouraged pleas are invalid whether involuntary or not. Jackson prohibits the imposition of the death penalty under § 1201 (a), but that decision neither fashioned a new standard for judging the validity of guilty pleas nor mandated a new application of the test theretofore fashioned by courts and since reiterated that guilty pleas are valid if both “voluntary” and “intelligent.” See Boykin v. Alabama, 395 U. S. 238, 242 (1969).
That a guilty plea is a grave and solemn act to be accepted only with care and discernment has long been recognized. Central to the plea and the foundation for entering judgment against the defendant is the defendant’s admission in open court that he committed the acts charged in the indictment. He thus stands as a witness against himself and he is shielded by the Fifth Amendment from being compelled to do so — hence the minimum requirement that his plea be the voluntary expression of his own choice. But the plea is more than an admission of past conduct; it is the defendant’s consent that judgment of conviction may be entered without a trial — a waiver of his right to trial before a jury or a judge. Waivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences. On neither score was Brady’s plea of guilty invalid.
II
The trial judge in 1959 found the plea voluntary-before accepting it; the District Court in 1968, after an evidentiary hearing, found that the plea was voluntarily made; the Court of Appeals specifically approved the finding of voluntariness. We see no reason on this record to disturb the judgment of those courts. Petitioner, advised by competent counsel, tendered his plea after his codefendant, who had already given a confession, determined to plead guilty and became available to testify against petitioner. It was this development that the District Court found to have triggered Brady’s guilty plea.
The voluntariness of Brady’s plea can be determined only by considering all of the relevant circumstances surrounding it. Cf. Haynes v. Washington, 373 U. S. 503, 513 (1963); Leyra v. Denno, 347 U. S. 556, 558 (1954). One of these circumstances was the possibility of a heavier sentence following a guilty verdict after a trial. It may be that Brady, faced with a strong case against him and recognizing that his chances for acquittal were slight, preferred to plead guilty and thus limit the penalty to life imprisonment rather than to elect a jury trial which could result in a death penalty. But even if we assume that Brady would not have pleaded guilty except for the death penalty provision of § 1201(a), this assumption merely identifies the penalty provision as a “but for” cause of his plea. That the statute caused the plea in this sense does not necessarily prove that the plea was coerced and invalid as an involuntary act.
The State to some degree encourages pleas of guilty at every important step in the criminal process. For some people, their breach of a State’s law is alone sufficient reason for surrendering themselves and accepting punishment. For others, apprehension and charge, both threatening acts by the Government, jar them into admitting their guilt. In still other cases, the post-indictment accumulation of evidence may convince the defendant and his counsel that a trial is not worth the agony and expense to the defendant and his family. All these pleas of guilty are valid in spite of the State’s responsibility for some of the factors motivating the pleas; the pleas are no more improperly compelled than is the decision by a defendant at the close of the State’s evidence at trial that he must take the stand or face certain conviction.
Of course, the agents of the State may not produce a plea by actual or threatened physical harm or by mental coercion overbearing the will of the defendant. But nothing of the sort is claimed in this case; nor is there evidence that Brady was so gripped by fear of the death penalty or hope of leniency that he did not or could not, with the help of counsel, rationally weigh the advantages of going to trial against the advantages of pleading guilty. Brady’s claim is of a different sort: that it violates the Fifth Amendment to influence or encourage a guilty plea by opportunity or promise of leniency and that a guilty plea is coerced and invalid if influenced by the fear of a possibly higher penalty for the crime charged if a conviction is obtained after the State is put to its proof.
Insofar as the voluntariness of his plea is concerned, there is little to differentiate Brady from (1) the defendant, in a jurisdiction where the judge and jury have the same range of sentencing power, who pleads guilty because his lawyer advises him that the judge will very probably be more lenient than the jury; (2) the defendant, in a jurisdiction where the judge alone has sentencing power, who is advised by counsel that the judge is normally more lenient with defendants who plead guilty than with those who go to trial; (3) the defendant who is permitted by prosecutor and judge to plead guilty to a lesser offense included in the offense charged; and (4) the defendant who pleads guilty to certain counts with the understanding that other charges will be dropped. In each of these situations, as in Brady’s case, the defendant might never plead guilty absent the possibility or certainty that the plea will result in a lesser penalty than the sentence that could be imposed after a trial and a verdict of guilty., We decline to hold, however, that a guilty plea is compelled and invalid under the Fifth Amendment whenever motivated by the defendant’s desire to accept the certainty or probability of a lesser penalty rather than face a wider range of possibilities extending from acquittal to conviction and a higher penalty authorized by law for the crime charged.
The issue we deal with is inherent in the criminal law and its administration because guilty pleas are not constitutionally forbidden, because the criminal law characteristically extends to judge or jury a range of choice in setting the sentence in individual cases, and because both the State and the defendant often find it advantageous to preclude the possibility of the maximum penalty authorized by law. For a defendant who sees slight possibility of acquittal, the advantages of pleading guilty and limiting the probable penalty are obvious — his exposure is reduced, the correctional processes can begin immediately, and the practical burdens of a trial are eliminated. For the State there are also advantages — the more promptly imposed punishment after an admission of guilt may more effectively attain the objectives of punishment; and with the avoidance of trial, scarce judicial and prosecutorial resources are conserved for those cases in which there is a substantial issue of the defendant’s guilt or in which there is substantial doubt that the State can sustain its burden of proof. It is this mutuality of advantage that perhaps explains the fact that at present well over three-fourths of the criminal convictions in this country rest on pleas of guilty, a great many of them no doubt motivated at least in part by the hope or assurance of a lesser penalty than might be imposed if there were a guilty verdict after a trial to judge or jury.
Of course, that the prevalence of guilty pleas is explainable does not necessarily validate those pleas or the system which produces them. But we cannot hold that it is unconstitutional for the State to extend a benefit to a defendant who in turn extends a substantial benefit to the State and who demonstrates by his plea that he is ready and willing to admit his crime and to enter the correctional system in a frame of mind that affords hope for success in rehabilitation over a shorter period of time than might otherwise be necessary.
A contrary holding would require the States and Federal Government to forbid guilty pleas altogether, to provide a single invariable penalty for each crime defined by the statutes, or to place the sentencing, function in a separate authority having no knowledge of the manner in which the conviction in each case was obtained. In any event, it would be necessary to forbid prosecutors and judges to accept guilty pleas to selected counts, to lesser included offenses, or to reduced charges. The Fifth Amendment does not reach so far.
Bram v. United States, 168 U. S. 532 (1897), held that the admissibility of a confession depended upon whether it was compelled within the meaning of the Fifth Amendment. To be admissible, a confession must be “ ‘freN and voluntary: that is, must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence.’ ” 168 U. S., at 542-543. More recently, Malloy v. Hogan, 378 U. S. 1 (1964), carried forward the Bram definition of compulsion in the course of holding applicable to the States the Fifth Amendment privilege against compelled self-incrimination.
Bram is not inconsistent with our holding that Brady’s plea was not compelled even though the law promised him a lesser maximum penalty if he did not go to trial. Bram dealt with a confession given by a defendant in custody, alone and unrepresented by counsel. In such circumstances, even a mild promise of leniency was deemed sufficient to bar the confession, not because the promise was an illegal act as such, but because defendants at such times are too sensitive to inducement and the possible impact on them too great to ignore and too difficult to assess. But Bram and its progeny did not hold that the possibly coercive impact of a promise of leniency could not be dissipated by the presence and advice of counsel, any more than Miranda v. Arizona, 384 U. S. 436 (1966), held that the possibly coercive atmosphere of the police station could not be counteracted by the presence of counsel or other safeguards.
Brady’s situation bears no resemblance to Bram’s. Brady first pleaded not guilty; prior to changing his plea to guilty he was subjected to no threats or promises in face-to-face encounters with the authorities. He had competent counsel and full opportunity to assess the advantages and disadvantages of a trial as compared with those attending a plea of guilty; there was no hazard of an impulsive and improvident response to a seeming but unreal advantage. His plea of guilty was entered in open court and before a judge obviously sensitive to the requirements of the law with respect to guilty pleas. Brady’s plea, unlike Bram’s confession, was voluntary.
The standard as to the voluntariness of guilty pleas must be essentially that defined by Judge Tuttle of the Court of Appeals for the Fifth Circuit:
“ ‘[A] plea of guilty entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel, must stand unless induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutor’s business (e. g. bribes).’ 242 F. 2d at page 115.”
Under this standard, a plea of guilty is not invalid merely because entered to avoid the possibility of a death penalty.
Ill
The record before us also supports the conclusion that Brady’s plea was intelligently made. He was advised by competent counsel, he was made aware of the nature of the charge against him, and there was nothing to indicate that he was incompetent or otherwise not in control of his mental faculties; once his confederate had pleaded guilty and became available to testify, he chose to plead guilty, perhaps to ensure that he would face no more than life imprisonment or a term of years. Brady was aware of precisely what he was doing when he admitted that he had kidnaped the victim and had not released her unharmed.
It is true that Brady’s counsel advised him that § 1201 (a) empowered the jury to impose the death penalty and that nine years later in United States v. Jackson, supra, the Court held that the jury had no such power as long as the judge could impose only a lesser penalty if trial was to the court or there was a plea of guilty. But these facts do not require us to set aside Brady’s conviction.
Often the decision to plead guilty is heavily influenced by the defendant’s appraisal of the prosecution’s case against him and by the apparent likelihood of securing leniency should a guilty plea be offered and accepted. Considerations like these frequently present imponderable questions for which there are no certain answers; judgments may be made that in the light of later events seem improvident, although they were perfectly sensible at the time. The rule that a plea must be intelligently made to be valid does not require that a plea be vulnerable to later attack if the defendant did not correctly assess every relevant factor entering into his decision. A defendant is not entitled to withdraw his plea merely because he discovers long after the plea has been accepted that his calculus misapprehended the quality of the State’s case or the likely penalties attached to alternative courses of action. More particularly, absent misrepresentation or other impermissible conduct by state agents, cf. Von Moltke v. Gillies, 332 U. S. 708 (1948), a voluntary plea of guilty intelligently made in the light of the then applicable law does not become vulnerable because later judicial decisions indicate that the plea rested on a faulty premise. A plea of guilty triggered by the expectations of a competently counseled defendant that the State will have a strong case against him is not subject to later attack because the defendant’s lawyer correctly advised him with respect to the then existing law as to possible penalties but later pronouncements of the courts, as in this case, hold that the maximum penalty for the crime in question was less than was reasonably assumed at the time the plea was entered.
The fact that Brady did not anticipate United States v. Jackson, supra, does not impugn the truth or reliability of his plea. We find no requirement in the Constitution that a defendant must be permitted to disown his solemn admissions in open court that he committed the act with which he is charged simply because it later develops that the State would have had a weaker case than the defendant had thought or that the maximum penalty then assumed applicable has been held inapplicable in subsequent judicial decisions.
This is not to say that guilty plea convictions hold no hazards for the innocent or that the methods of taking guilty pleas presently employed in this country are necessarily valid in all respects. This mode of conviction is no more foolproof than full trials to the court or to the jury. Accordingly, we take great precautions against unsound results, and we should continúe to do so, whether conviction is by plea or by trial. We would have serious doubts about this case if the encouragement of guilty pleas by offers of leniency substantially increased the likelihood that defendants, advised by competent counsel, would falsely condemn themselves. But our view is to the contrary and is based on our expectations that courts will satisfy themselves that pleas of guilty are voluntarily and intelligently made by competent defendants with adequate advice of counsel and that there is nothing to question the accuracy and reliability of the defendants’ admissions that they committed the crimes with which they are charged. In the case before us, nothing in the record impeaches Brady’s plea or suggests that his admissions in open court were anything but the truth.
Although Brady’s plea of guilty may well have been motivated in part by a desire to avoid a possible death penalty, we are convinced that his plea was voluntarily and intelligently made and we have no reason to doubt that his solemn admission of guilt was truthful.
Affirmed.
Mr. Justice Black, while adhering to his belief that United States v. Jackson, 390 U. S. 570, was wrongly decided, concurs in the judgment and in substantially all of the opinion in this case.
[For opinion of Mr. Justice Brennan, concurring in the result, see post, p. 799.]
“Whoever knowingly transports in interstate or foreign commerce, any person who has been unlarviully seized, confined, inveigled, decoyed, kidnaped, abducted, or carried away and held for ransom or reward or otherwise, except, in the case of a minor, by a parent thereof, shall be punished (1) by death if the kidnaped person has not been liberated unharmed, and if the verdict of the jury shall so recommend, or (2) by imprisonment for any term of years or for life, if the death penalty is not imposed.”
Eight days after petitioner pleaded guilty, he was brought before the court for sentencing. At that time, the court questioned petitioner for a second time about the voluntariness of his plea:
“THE COURT: . . . Having read the presentence report and the statement you made to the probation officer, I want to be certain that you know what you are doing and you did know when you entered a plea of guilty the other day. Do you want to let that plea of guilty stand, or do you want to withdraw it and plead not guilty?
“DEFENDANT BRADY: I want to let that plea stand, sir.
“THE COURT: You understand that in doing that you are admitting and confessing the truth of the charge contained in the indictment and that you enter a plea of guilty voluntarily, without persuasion, coercion of any kind? Is that right?
“DEFENDANT BRADY: Yes, your Honor.
“THE COURT: And you do do that?
“DEFENDANT BRADY: Yes, I do.
“THE COURT: You plead guilty to the charge?
“DEFENDANT BRADY: Yes, I do.” App. 29-30.
When petitioner pleaded guilty, Rule 11 read as follows:
“A defendant may plead not guilty, guilty or, with the consent of the court, nolo contendere. The court may refuse to accept a plea of guilty, and shall not accept the plea without first determining that the plea is made voluntarily with understanding of the nature of the charge. If a defendant refuses to plead or if the court refuses to accept a plea of guilty or if a defendant corporation fails to appear, the court shall enter a plea of not guilty."
Rule 11 was amended in 1966 and now reads as follows:
“A defendant may plead not guilty, guilty or, with the consent of the court, nolo contendere. The court may refuse to accept a plea of guilty, and shall not accept such plea or a plea of nolo contendere without first addressing the defendant personally and determining that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea. If a defendant refuses to plead or if the court refuses to accept a plea of guilty or if a defendant corporation fails to appear, the court shall enter a plea of not guilty. The court shall not enter a judgment upon a plea of guilty unless it is satisfied that there is a factual basis for the plea.”
In McCarthy v. United States, 394 U. S. 459 (1969), we held that a failure to comply with Rule 11 required that a defendant who had pleaded guilty be allowed to plead anew. In Halliday v. United States, 394 U. S. 831 (1969), we held that the McCarthy rule should apply only in cases where the guilty plea was accepted after April 2, 1969, the date of the McCarthy decision.
The requirement that a plea of guilty must be intelligent and voluntary to be valid has long been recognized. See nn. 5 and 6, infra. The new element added in Boykin was the requirement that the record must affirmatively disclose that a defendant who pleaded guilty entered his plea understandingly and voluntarily. This Court has not yet passed on the question of the retroactivity of this new requirement.
Machibroda v. United States, 368 U. S. 487, 493 (1962); Waley v. Johnston, 316 U. S. 101, 104 (1942); Walker v. Johnston, 312 U. S. 275, 286 (1941); Chambers v. Florida, 309 U. S. 227 (1940); Kercheval v. United States, 274 U. S. 220, 223 (1927).
See Brookhart v. Janis, 384 U. S. 1 (1966); Adams v. United States ex rel. McCann, 317 U. S. 269, 275 (1942); Johnson v. Zerbst, 304 U. S. 458, 464 (1938); Patton v. United States, 281 U. S. 276, 312 (1930).
Since an intelligent assessment of the relative advantages of pleading guilty is frequently impossible without the assistance of an attorney, this Court has scrutinized with special care pleas of guilty entered by defendants without the assistance of counsel and without a valid waiver of the right to counsel. See Pennsylvania ex rel. Herman v. Claudy, 350 U. S. 116 (1956); Von Moltke v. Gillies, 332 U. S. 708 and 727 (1948) (opinions of Black and Frankfurter, JJ.); Williams v. Kaiser, 323 U. S. 471 (1945). Since Gideon v. Wainwright, 372 U. S. 335 (1963), it has been clear that a guilty plea to a felony charge entered without counsel and without a waiver of counsel is invalid. See White v. Maryland, 373 U. S. 59 (1963); Arsenault v. Massachusetts, 393 U. S. 5 (1968).
The importance of assuring that a defendant does not plead guilty except with a full understanding of the charges against him and the possible consequences of his plea was at the heart of our recent decisions in McCarthy v. United States, supra, and Boykin v. Alabama, 395 U. S. 238 (1969). See nn. 3 and 4, supra.
Such a possibility seems to have been rejected by the District Court in the §2255 proceedings. That court found that “the plea of guilty was made by the petitioner by reason of other matters and not by reason of the statute . . . .”
We here make no reference to the situation where the prosecutor or judge, or both, deliberately employ their charging and sentencing powers to induce a particular defendant to tender a plea of guilty. In Brady’s case there is no claim that the prosecutor threatened prosecution on a charge not justified by the evidence or that the trial judge threatened Brady with a harsher sentence if convicted after trial in order to induce him to plead guilty.
For a more elaborate discussion of the factors that may justify a reduction in penalty upon a plea of guilty, see American Bar Association Project on Standards for Criminal Justice, Pleas of Guilty § 1.8 and commentary, pp. 37-52 (Approved Draft 1968). of all
It has been estimated that about 90%, and perhaps 95%, of all criminal convictions are by pleas of guilty; between 70% and 85% of all felony convictions are estimated to be by guilty plea. D. Newman, Conviction, The Determination of Guilt or Innocence Without Trial 3 and n. 1 (1966).
Malloy v. Hogan, 378 U. S. 1, 7 (1964). See also Haynes v. Washington, 373 U. S. 503, 513 (1963); Lynumn v. Illinois, 372 U. S. 528 (1963); Wilson v. United States, 162 ü. S. 613, 622-623 (1896).
“The presence of counsel, in all the eases before us today, would be the adequate protective device necessary to make the process of police interrogation conform to the dictates of the privilege [against compelled self-incrimination]. His presence would insure that statements made in the government-established atmosphere are not the product of compulsion.” Miranda v. Arizona, 384 U. S. 436, 466 (1966).
Shelton v. United States, 246 F. 2d 571, 572 n. 2 (C. A. 5th Cir. 1957) (en banc), rev’d on confession of error on other grounds, 356 U. S. 26 (1958).
Our conclusion in this regard seems to coincide with the conclusions of most of the lower federal courts that have considered whether a guilty plea to avoid a possible death penalty is involuntary. See United States ex rel. Brown v. LaVallee, 424 F. 2d 457 (C. A. 2d Cir. 1970); United States v. Thomas, 415 F. 2d 1216 (C. A. 9th Cir. 1969); Pindell v. United States, 296 F. Supp. 751 (D. C. Conn. 1969); McFarland v. United States, 284 F. Supp. 969 (D. C. Md. 1968), aff’d, No. 13,146 (C. A. 4th Cir., May 1, 1969), cert. denied, post, p. 1077; Laboy v. New Jersey, 266 F. Supp. 581 (D. C. N. J. 1967); Gilmore v. California, 364 F. 2d 916 (C. A. 9th Cir. 1966); Busby v. Holman, 356 F. 2d 75 (C. A. 5th Cir. 1966); Cooper v. Holman, 356 F. 2d 82 (C. A. 5th Cir.), cert. denied, 385 U. S. 855 (1966); Godlock v. Ross, 259 F. Supp. 659 (D. C. E. D. N. C. 1966); United States ex rel. Robinson v. Fay, 348 F. 2d 705 (C. A. 2d Cir. 1965), cert. denied, 382 U. S. 997 (1966); Overman v. United States, 281 F. 2d 497 (C. A. 6th Cir. 1960), cert. denied, 368 U. S. 993 (1962); Martin v. United States, 256 F. 2d 345 (C. A. 5th Cir.), cert. denied, 358 U. S. 921 (1958). But see Shaw v. United States, 299 F. Supp. 824 (D. C. S. D. Ga. 1969); Alford v. North Carolina, 405 F. 2d 340 (C. A. 4th Cir. 1968), prob. juris, noted, 394 U. S. 956 (1969), restored to calendar for reargument, post, p. 1060.
Question: What is the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed?
A. stay, petition, or motion granted
B. affirmed (includes modified)
C. reversed
D. reversed and remanded
E. vacated and remanded
F. affirmed and reversed (or vacated) in part
G. affirmed and reversed (or vacated) in part and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to or from a lower court
K. no disposition
Answer:
|
songer_genresp2
|
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.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the second listed respondent. If there are more than two respondents and at least one of the additional respondents has a different general category from the first respondent, then consider the first respondent with a different general category to be the second respondent.
Kenneth Alvis PIERCE, Appellant, v. Ray H. PAGE, Warden, and the State of Oklahoma, Appellees.
No. 8609.
United States Court of Appeals Tenth Circuit.
June 24, 1966.
Rehearing Denied Aug. 1, 1966.
James R. Schmitt, Wichita, Kan., for appellant.
Charles L. Owens, Tulsa, Okl. (Charles Nesbitt, Atty. Gen. of Oklahoma, on brief), for appellees.
Before MURRAH, Chief Judge, and PHILLIPS and LEWIS, Circuit Judges.
PER CURIAM.
Petitioner Pierce appeals from an order dismissing his application for writ of habeas corpus. He was tried and convicted by a jury and sentenced to ten years in the Oklahoma State Penitentiary for burglary second degree after former conviction of a felony. The conviction and sentence were affirmed on appeal and two petitions for rehearing denied. Pierce v. State, Okl.Cr.App., 383 P.2d 699. After petition for writ of habeas corpus was denied in the state court, Pierce filed this application alleging that he was not afforded a constitutionally guaranteed fair trial.
Complaint is made of the exclusion from the evidence of six documents which petitioner contends went to the basic defense of insanity. He also complains of the instructions of the court on the penalty to be assessed and of numerous incidents during the trial which he says demonstrates that it was conducted in an air of prejudice and partiality. The federal trial court denied the writ without a hearing based upon a reading of the opinion of the Oklahoma Court of Criminal Appeals and a review of the case-made in that court.
It seems redundant to say again that habeas corpus is not available to review errors in criminal cases. “The function of the great writ * * * ‘is to test by way of an original civil proceeding, independent of the normal channels of review of criminal judgments, the very gravest allegations. State prisoners are entitled to relief on federal habeas corpus only upon proving that their detention violates the fundamental liberties of the person, safeguarded against state action by the Federal Constitution.’ ” See Hickock v. Crouse, 10 Cir., 334 F.2d 95, 100, cert. denied 379 U.S. 982, 85 S.Ct. 689, 13 L.Ed.2d 572, reh. denied 380 U.S. 928, 85 S.Ct. 908, 13 L.Ed.2d 817, quoting Townsend v. Sain, 372 U.S. 293, 311-312, 83 S.Ct. 745, 9 L.Ed.2d 770; see also Poulson v. Turner, 10 Cir., 359 F.2d 588.
It is strenuously argued on appeal, as in the trial court, that any one of the errors complained of is of sufficient gravity to deprive petitioner of his fundamental right to a fair trial, but in any event, when all of the errors are compounded, the deprivation of due process is manifest.
Our review of the proceedings in the state court and of the casemade convinces us that petitioner was not denied the rudimentary requirements of fair trial and federal habeas corpus is, therefore, unavailable.
The judgment is affirmed.
Question: What is the nature of the second listed respondent whose detailed code is not identical to the code for the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
sc_certreason
|
A
|
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.
ARKANSAS v. TENNESSEE
No. 33,
Orig.
Decided February 25, 1970
Decree entered (inter alia, appointing Boundary Commissioner) February 25, 1970—
Decree entered (establishing boundary line) June 23, 1970
This Court on February 25, 1970, 397 U. S. 88, 91, having entered a decree and appointed a Boundary Commissioner to survey the boundary between Arkansas and Tennessee and pursuant to that decree the said Commissioner having filed a “Report on Commission to Survey” in which he sets forth the General Location and Specific Location of such boundary to which the parties have approved and consented,
It is ordered, adjudged, and decreed That such boundary shall be fixed as follows:
General Location
The state boundary line involved herein is located between Crittenden County, Arkansas, and Shelby County, Tennessee, in an area formerly known as Cow Island Bend, and more recently called Scanlan Chute, Frog Chute, Ike Chute or Lake, and 96 Chute; and is generally within a rectangle between latitudes 35° 00' and 35° 03', and longitudes 90° 15' and 90° 19', and is more particularly described as follows:
Specific Location
Beginning at a point, designated as Station No. 1, which point is, S 6° 34' E, at 1,359.0 feet from, Mississippi River Commission Permanent Bench Mark “Scanlan,” whose coordinates are, latitude 35° 02' plus 1,555.76 feet, and longitude 90° 15' plus 1,014.42 feet. (Reference for PBM “Scanlan,” see page 118 of Permanent Marks, Volume One of Mississippi River Commission.)
Said above beginning point being on a line running, S 75° 39' E, 3,500.0 feet more or less from, the present Steamboat Channel (thalweg) of the Mississippi River; thence N 75° 39' W, 645.8 feet to a point; thence N 75° 54' W, 2,112.0 feet to a point; thence N 17° 18' W, 920.4 feet to a point; thence N 35° 25' W, 436.3 feet to a point; thence N 62° 36' W, 491.3 feet to a point, designated as Station No., 2; thence S 85° 53' W, 2,161.6 feet to a point; thence S 82° 00' W, 1,443.3 feet to a point; thence N 87° 38' W, 2,739.7 feet to a point; thence S 79° 35' W, 1,808.5 feet to a point; thence S 38° 47' W, 1,033.1 feet to a point; thence S 24° 52' W, 811.0 feet to a point; thence S 7° 38' W, 2,085.5 feet to a point; thence S 11° 29' W, 1,725.2 feet to a point, designated as Station No. 3; thence S 23° 31' W, 3,098.3 feet to a point; thence S 0° 51' E, 1,370.5 feet to a point; thence S 13° 15' E, 1,258.1 feet to a point, designated as Station No. 4; thence S 38° 45' W, 814.5 feet to a point; thence S 23° 55' W, 864.1 feet to a point; thence S 12° 30' W, 644.4 feet to a point; thence S 6° 30' W, 1,270.5 feet to a point, which point is, S 81° 52' E (Mag.), 2,736.5 feet from, United States Engineer Arkansas Levee Bench Mark for Mile Post 170/171; thence S 17° 40' E, 1,627.0 feet to a point; thence S 6° 50' E, 1,485.0 feet to a point; thence S 22° 10' E, 2,500.0 feet more or less, to the present Steamboat Channel (thalweg) of the Mississippi.
The above surveyed boundary line between the States of Arkansas and Tennessee in the area involved is shown by a broken line marked on the attached 1965 aerial photograph of said area, which aerial photograph is also designated Appendix A-I to this Court’s decree of February 25, 1970
Question: What reason, if any, does the court give for granting the petition for certiorari?
A. case did not arise on cert or cert not granted
B. federal court conflict
C. federal court conflict and to resolve important or significant question
D. putative conflict
E. conflict between federal court and state court
F. state court conflict
G. federal court confusion or uncertainty
H. state court confusion or uncertainty
I. federal court and state court confusion or uncertainty
J. to resolve important or significant question
K. to resolve question presented
L. no reason given
M. other reason
Answer:
|
songer_habeas
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine whether the case was an appeal of a decision by the district court on a petition for habeas corpus. A state habeas corpus case is one in which a state inmate has petitioned the federal courts.
Freddie RICHARDSON, Petitioner-Appellant, v. Raymond K. PROCUNIER, Director, Texas Department of Corrections, Respondent-Appellee.
No. 84-1749
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
June 10, 1985.
Freddie Richardson, pro se.
Jim Mattox, Atty. Gen., Robert S. Walt, Asst. Atty. Gen., Austin, Tex., for respondent-appellee.
Before WILLIAMS, JOLLY and HILL, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
We decide here that a Texas inmate seeking federal habeas relief has not exhausted his state remedies when, in directly appealing his state criminal conviction, he failed to petition the Texas Court of Criminal Appeals for review of his conviction, notwithstanding that petitions for review of convictions before that court are accepted only on a discretionary basis. Because Richardson failed to do so, we affirm the district court’s dismissal of his petition for failure to exhaust state remedies and now require him to pursue state habeas relief, Tex.Code Crim.Proc.Ann. art. 11.07 (Vernon Supp.1985), the appropriate post-conviction procedural route for raising his claim in the state’s highest court.
On January 14, 1981 Freddie Richardson was convicted in the 126th District Court of Travis County, Texas, of aggravated robbery. A prior felony conviction was used for sentence enhancement, and he was sentenced to twenty-three years imprisonment. Richardson’s conviction was affirmed by the Court of Appeals for the Third Supreme Judicial District of Texas, but he did not petition the Texas Court of Criminal Appeals for its discretionary review of his conviction, the determining point in fact of our decision.
On February 29, 1984, Richardson filed a federal petition for habeas corpus relief alleging that evidence used to convict him was the product of an illegal arrest and that the pretrial identification was unduly suggestive, the same grounds alleged in his appeal to the state court of appeals. On May 22, 1984, a United States magistrate issued a written report, recommending that Richardson’s habeas petition claim be dismissed for failure to exhaust state remedies since he did not seek review of his conviction from the Texas Court of Criminal Appeals. The district court undertook a de novo review of the entire record, and on July 17, 1984, adopted the report and recommendation of the magistrate. This appeal followed. We affirm the district court’s dismissal of the petition.
I
We begin our review by turning to an examination of the Texas criminal appellate system. In 1980, the Texas State Constitution was amended to create a two-tiered system of appellate review of criminal cases. Tex. Const, art. V, '§§ 5, 6; see also C. Dally, P. Brockway, Changes in Appellate Review in Criminal Cases Following the 1980 Constitutional Amendment, 13 St. Mary’s L.J. 211 (1981). The Texas system now provides that except where the death penalty has been assessed, direct appeals in all criminal cases are initially made to the court of appeals. Tex.Code Crim. Proc.Ann. art. 4.03 (Vernon Supp.1985). The decisions of the court of appeals are subject to a second stage of criminal appellate review by the Texas Court of Criminal Appeals. Tex.Code Crim.Proc.Ann. art. 44.24(d) (Vernon Supp.1985). Review by the Court of Criminal Appeals is not a matter of right, Tex.R.Crim.App.P. 302(b), but is within the court’s discretion and may be granted either upon the petition of one of the parties or sua sponte. Tex.R.Crim. App.P. 302(a). In determining whether to grant review, the Court of Criminal Appeals considers the following six factors:
(1) Where a court of appeals has rendered a decision in conflict with the decision of another court of appeals on the same matter; (2) where a court of appeals has decided an important question of state or federal law which has not been, but should be, settled by the Court of Criminal Appeals; (3) where a court of appeals has decided an important question of state or federal law in conflict with the applicable decisions of the Court of Criminal Appeals or the Supreme Court of the United States; (4) where a court of appeals has declared unconstitutional, or appears to have misconstrued a statute, rule, regulation, or ordinance;
(5) where the justices of the court of appeals have disagreed upon a material question of law necessary to its decision;
(6) and where a court of appeals has so far departed from the accepted and usual course of judicial proceedings, or so far sanctioned such a departure by a lower court, as to call for an exercise of the Court of Criminal Appeals’ power of supervision.
Tex.R.Crim.App.P. 302(c); see also Ayala v. State, 633 S.W.2d 526 (Tex.Crim.App.1982 (en banc)).
II
The Texas statutes must be considered in the light of the firmly established principle that a state prisoner is required to exhaust his state remedies before he applies for federal habeas relief. The exhaustion requirement is satisfied only when federal claims have been fairly presented to the state courts for disposition. Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971); Carter v. Estelle, 677 F.2d 427, 443 (5th Cir.1982). The Supreme Court has rather recently discussed the exhaustion requirement in Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), where it stated: “The exhaustion doctrine is principally designed to protect the state court’s role in the enforcement of federal law and prevent disruption of state judicial proceedings.” Id. at 518, S.Ct. at 1203. The Court further observed:
Because it would be unseemly in our dual system of government for a federal district court to upset a state court conviction without an opportunity to the state courts to correct a constitutional violation, federal courts apply the doctrine of comity, which teaches that one court should defer action on causes properly within its jurisdiction until the courts of another sovereignty with concurrent powers, and already cognizant of the litigation, have had an opportunity to pass upon the matter. (Citing Darr v. Burford, 339 U.S. 200, 204, 70 S.Ct. 587, 590, 94 L.Ed. 761 (1950)).
Id.
Although we have not addressed the question of whether it is necessary to seek discretionary review by the Court of Criminal Appeals in order to exhaust state remedies under Texas law, we have discussed this issue with respect to the Florida appellate system. However, because the Texas and Florida statutes governing review are different, these cases do not necessarily control our decision here; nevertheless they serve us with a degree of guidance. First, in Williams v. Wainwright, 452 F.2d 775 (5th Cir.1971), we concluded that Williams had exhausted his state remedies only by appealing his conviction to the court of appeals, noting that “[t]he Florida Supreme Court’s jurisdiction is strictly described by the Florida Constitution”; we also observed that the Florida courts of appeals were created not as intermediate courts of appeal but as the “end of the road in most cases.” 452 F.2d at 776.
Next, however, in Pressley v. Wainwright, 493 F.2d 894 (5th Cir.1974), we reached a different conclusion and required review by the Florida Supreme Court. In the context of a factual situation different from Williams, we concluded:
Given the particular factual circumstances leading to the lapse of the filing time through no fault of Pressley, his intention at all times to seek review in the Supreme Court, the belated order of the District Court of Appeal appointing counsel for the purpose of pursuing the appeal, and the good faith assertion of certiorari jurisdiction shown by the possible conflict in the District Court of Appeal’s decision, we feel Pressley should again present his contentions to the proper state courts before asserting his claims in federal court.
Pressley, 493 F.2d at 895. Thus, the different conclusions of Pressley and Williams would seem to suggest that although it is not necessary to seek discretionary review from a second appellate level when review will almost certainly be denied, a petitioner is not considered to have exhausted his state remedies where additional appellate review would possibly be granted.
Ill
As we have noted earlier, the Florida cases do not control our decision here because Texas and Florida statutes are dissimilar. In Williams and Pressley, we interpreted the discretion of review exercised by the Florida Supreme Court as very limited. In contrast, the Texas Court of Criminal Appeals exercises broad discretion in accepting appeals for review. If, for instance, there is a perceived conflict among the several courts of appeals in Texas, or if the Court of Criminal Appeals wishes to settle some particular point of law, or if the court of appeal has misconstrued a statute or ordinance, or if the court of appeal has departed from the usual course of adjudication, the Court of Criminal Appeals may exercise its discretion and accept review. Indeed, it appears to us that as a practical matter, the statute places few restrictions on the court’s discretion to accept review.
We are persuaded that the exhaustion doctrine requires that the Texas Court of Criminal Appeals be given an opportunity to review and rule upon the petitioner’s claim before he resorts to the federal courts. Our holding is dictated by several considerations. First, even though the court’s review is discretionary, its discretion is broad; thus, we are clearly persuaded from evaluating the petition for review as a futile act. Indeed, we could hardly ever say with certainty whether the Texas Court of Criminal Appeals would accept review in a given case. Even if we engaged in an effort to make such a determination, it would often be no more than an attempt at reading the subjective mind of that court. Such a presumption on our part would surely be “unseemly” and would constitute an unnecessary interference with a state’s criminal justice system. Furthermore, to review the status of the law in each of the Texas courts of appeal, searching for a conflict, or otherwise to survey Texas law to see whether the given case may possibly fall within the general criteria pursuant to which the Court of Criminal Appeals exercises its discretion, would impose an unnecessary and heavy burden on the federal courts.
Without hesitation, therefore, we hold that a Texas inmate seeking federal habeas relief who, in directly appealing his state criminal conviction, has by-passed the Texas Court of Criminal Appeals will not be deemed to have exhausted his state remedies until he has raised his claims before the state’s highest court through collateral review provided by state habeas procedures. See Carter v. Estelle, 677 F.2d 427, 442 n. 10 (5th Cir.1982), cert. denied, 460 U.S. 1056, 103 S.Ct. 1508, 75 L.Ed.2d 937 (1983); but cf. Harris v. Beto, 280 F.Supp. 200 (N.D.Tex.1967) (because of availability of fact-finding procedures in lower courts, as required by post-conviction procedures available under article 11.07, habeas corpus filed originally in Texas Court of Criminal Appeals is not exhaustive of post-conviction remedies). Accordingly, the district court’s dismissal of the instant petition for failure to exhaust state remedies is
AFFIRMED.
. The jurisdiction of the Florida Supreme Court has been modified by an amendment to the Florida Constitution since our decisions in WilHams and Pressley, and now more clearly conforms to the Texas statutes. See Florida Rule of Appellate Procedure 9.030.
. In so holding, we do not foreclose other avenues by which state remedies may be exhausted. A petitioner might request out-of-time discretionary review by the Court of Criminal Appeals or he might move the Court of Appeals to withdraw and then reenter its mandate, thereby enabling an in-time petition for discretionary review with the Court of Criminal Appeals. See Pressley v. Wainwright, 493 F.2d 894, 895-96 (5th Cir.1974) (neither alternative is specifically excluded by Texas statutes or rules of court). But see Carter v. Estelle, 677 F.2d 427, 443 (5th Cir.1982) (“the use of extraordinary writs or other abnormal or seldom-used avenues of relief is generally not considered a proper method of exhaustion when normal methods are available”), cert. denied, 460 U.S. 1056, 103 S.Ct. 1508, 75 L.Ed.2d 937 (1983).
Question: Was the case an appeal of a decision by the district court on a petition for habeas corpus?
A. no
B. yes, state habeas corpus (criminal)
C. yes, federal habeas corpus (criminal)
D. yes, federal habeas corpus relating to deportation
Answer:
|
songer_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
In re MacLAUCHLAN.
(Circuit Court of Appeals, Second Circuit.
November 9, 1925.)
No. 81.
1. Bankruptcy <@=>410 — Application for additional time within which to apply for discharge addressed to judicial discretion.
Application for six months’ additional time within which to apply for discharge in bankruptcy, under Bankruptcy Act, § 14a (Comp. St. §- 9598), is addressed to judicial discretion.
2. Bankruptcy <@=>446 — An abuse of discretion may in itseif constitute error of law.
An abuse of discretion may in itself constitute error of law.
3. Bankruptcy <@=>410 — “Unavoidably prevented,” within Bankruptcy Act,- construed.
Before bankrupt can be said to have been “unavoidably prevented” from petitioning for discharge, within Bankruptcy Act, § 14a (Comp. St. § 9598), there must have been some external compulsion or compelling outside force.
[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Unavoidably Prevented.]
4. Evidence <@=>43(1) — Judicial notice taken of fact that drafting and filing of petition for discharge in bankruptcy is simple, short, and inexpensive.
Judicial notice will be taken that drafting and filing of petition for discharge in bankruptcy is a short, simple, and inexpensive affair, as affects question whether bankrupt was unavoidably prevented from so doing.
5. Bankruptcy <@=>410 — Petition for additional time held not to show bankrupt unavoidably prevented from filing petition for dischárge.
Petition for additional time within which to file petition for discharge in bankruptcy, based on illness of bankrupt’s attorney and litigation ■with trustee, held not to show that bankrupt had been unavoidably prevented from filing petition- within time allowed by Bankruptcy Act, § 14a (Comp. St. § 9598).
6. Bankruptcy <@=444 — Petition to revise an order in bankruptcy should be prosecuted formally in name of creditor.
Petition to revise an order in bankruptcy, entered by district court, should be prosecuted formally in name of creditor.
Petition to Revise Order of the District Court of the United States for the Eastern District of New York.
In the matter of the bankruptcy of James H. MacLauehlan. On petition of Mantón Marks to revise an order of the District .Court, refusing to vacate an order granting additional time within which to file petition for discharge.
Order reversed.
' MacLauehlan became an adjudicated bankrupt on December 26, 3 923, and made no application for discharge within a year from adjudication. On March 30, 1925, the court below granted, ex parte, an order that the bankrupt’s time for such application be “extended until the expiration of 18 months” from his adjudication.
The bankrupt’s affidavit or petition on which this order was based set forth (1) that between January and September he was “constantly” under examination before the referee; (2) that from May to September, also, his attorney was ill, in bed, and able to transact only such business as could “be done at his bedside”; (3) that his trustee had brought a turn-over proceeding against him, which at a time not stated, but evidently after September, 1924, had ended in a decision that the trustee must bring a plenary suit; (4) the trustee had (at a date not given) brought a suit against him and others to recover assets alleged to be concealed, which suit had been tried but a few days before petition verified, and was not stated to have been decided; (5) “there has not been a week, since the filing of the petition herein, that your petitioner has not had some occasion to consult his counsel, and up to the present said counsel has given his time without compensation of any kind.”
A creditor with a duly proved claim, on learning of this order, moved to vacate it, on the ground that “no legal reason” had been shown entitling MacLauehlan to the extension given. This motion was denied, whereupon this petition to revise was filed.
Manton Marks, of New York City, for creditors.
Fred S. Rauber, of New York City, for MacLauchlan.
Before HOUGH and HAND, Circuit Judges.
HOUGH, Circuit Judge
(after stating the facts as above).
Bankruptcy Act, § 14a (Comp. St. § 9598), provides that a bankrupt within “the next twelve months subsequent” to' adjudication may apply for a discharge, and then continues thus:
“If it shall he made to appear to the judge that the bankrupt was unavoidably prevented from filing it [i. e., his petition for discharge] within such time [i. e., said 'next twelve months’], it may be filed within, but not after, the expiration of the next six months.”
The question at bar is whether this bankrupt brought himself within the provisions of this section of the act, properly construed.
It has been repeatedly held, and we think correctly, that an application for the six months’ extension is addressed to judicial discretion. It is recognized as true that what constitutes “unavoidable prevention” is a question that cannot be answered as certainly, nor be demonstrated as infallibly, as an arithmetical problem. In re Fritz (D. C.) 173 F. 560; In re Chase (D. C.) 186 F. 408; In re Churchill (D. C.) 197 F. 111. But an abuse of discretion may itself constitute error of law, and it is urged that what was done here constituted such abuse.
When used in its original sense of anticipation, to “prevent” nearly always suggests that some one is the object of prevention; but, when used in the usual modem sense of hindrance or preclusion, the word always means that some other entity is preventing action by the one prevented. In the act the word is, of course, used in the ordinary modem way, and we must hold that, when a bankrupt is “prevented” from applying for discharge, the hindrance or preclusion is a force outside himself, operating upon him; he cannot be prevented by his own disinclination to act.
A result that is “unavoidable” need not be absolutely inescapable; yet it is a very strong word, and such limitations as Maulé, J., suggested for the possibility of retrieving a shilling from the Thames are about all that can ho suggested. Result is that there must bo a most compelling outside force, precluding a man by hypothesis honest and diligent from filing his petition, before any bankrupt can assert that he was “unavoidably prevented”; and we take judicial notice of the fact that drafting and filing a petition for discharge is a simple, short, and inexpensive affair.
Some reported cases either hold it a duty, or excuse an inclination to bo lax in the interpretation of the section at bar, on the ground that the whole act manifests congressional intention to favor honest debtors. In re Jacobs, 241 F. 620, 154 C. C. A. 378; In re Churchill (D. C.) 197 F. 111. We.fail td see how that doctrine can change the meaning of words plainer than is usual in statutes; rather do we regard the section as indicating the limits set by the Legislature to its favor, even in respect of the most honest debtor.
We agree that a hard and fast definition of unavoidable prevention is not desirable, even if possible; but we insist on the necessity of external compulsion being an element in the excusing preclusion. Thus poverty and sickness, extreme and of long continuance have rightly been held to meet the test (In re Casey [D. C.] 195 F. 322), so would an error in the court clerk’s office (In re Swain [D. C.] 243 F. 781), and the same result has followed from reliance on an unreliable attorney who let the twelve months go by unheeded (In re Waller, 249 F. 187, 16 C. C. A. 223). These decisions are illustrative of prevention, as an outside influence ; they also illustrate how variably the potency of the “unavoidably” can be estimated.
In re Vaine (D. C.) 186 F. 535, is a good illustration of denying extension, though any discharge applied for within 12 months could only be itself denied, because 6 years had not elapsed from an earlier discharge in voluntary proceedings. Yet, as was properly held, this earlier discharge was the. bankrupt’s own doing, and could not constitute prevention within the statute.
Turning, now, to the facts shown by this bankrupt, it is especially clear that he does not even assert as a conclusion that anything “prevented” action during the whole year of the statute; the nearest approach to' it is his attorney’s illness for some months, while, ^s to “unavoidably,” there is no pretense- of it.
The real reason for the application is plain enough, from parts of the petition not heretofore alluded to. It is alleged, with evident truth, that MaeLauchlan expected a bitter contest with his creditors over his right to a discharge; he had had two litigations with them, or some of them, already, and he wanted time wherein to gird up his loins for another struggle over the discharge. This is a perfect illustration of a bad reason for such an order as this.
The practice pursued in this matter is bad. The petition should have been formally in the name of the creditor; but, as neither side has referred to the matter in brief or argument, we have considered the merits, and merely point out that this record is not a precedent procedurally.
Order reversed with costs.
Question: What is the nature of the counsel for the respondent?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer:
|
sc_petitioner
|
001
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the petitioner of the case. The petitioner is the party who petitioned the Supreme Court to review the case. This party is variously known as the petitioner or the appellant. Characterize the petitioner as the Court's opinion identifies them.
Identify the petitioner by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer.
Also note that the Court's characterization of the parties applies whether the petitioner is actually single entity or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single petitioner, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name.
GONZALES, ATTORNEY GENERAL, et al. v. RAICH et al.
No. 03-1454.
Argued November 29, 2004
Decided June 6, 2005
Acting Solicitor General Clement argued the cause for petitioners. With him on the briefs were Assistant Attorney General Keisler, Deputy Solicitor General Kneedler, Lisa S. Blatt, Mark B. Stern, Alisa B. Klein, and Mark T Quinlivan.
Randy E. Barnett argued the cause for respondents. With him on the brief were Robert A. Long, Jr., Heidi C. Doerhoff, Robert A. Raich, and David M. Michael.
Briefs of amici curiae urging reversal were filed for the Community Rights Counsel by Timothy J. Dowling; for the Drug Free America Foundation, Inc., et al. by David G. Evans; for Robert L. DuPont, M. D., et al. by John R. Bartels, Jr.; and for U. S. Representative Mark E. Souder et al. by Nicholas P. Coleman.
Briefs of amici curiae urging affirmance were filed for the State of Alabama et al. by Troy King, Attorney General of Alabama, Kevin C. Newsom, Solicitor General, Charles C. Foti, Jr., Attorney General of Louisiana, and Jim Hood, Attorney General of Mississippi; for the State of California et al. by Bill Lockyer, Attorney General of California, Richard M. Frank, Chief Deputy Attorney General, Manuel M. Medeiros, State Solicitor, Taylor S. Carey, Special Assistant Attorney General, J. Joseph Curran, Jr., Attorney General of Maryland, and Christine 0. Gregoire, Attorney General of Washington; for the California Nurses Association et al. by Julia M. Carpenter; for the Cato Institute by Douglas W. Kmiec, Timothy Lynch, and Robert A Levy; for Constitutional Law Scholars by Ernest A Young, Matthew D. Schnall, Charles Fried, and David L. Shapiro; for the Institute for Justice by William H. Mellor, Dana Berliner, and Rickard A Epstein; for the Leukemia & Lymphoma Society et al. by David T. Goldberg, Sean H. Donahue, and Daniel N. Abrahamson; for the Lymphoma Foundation of America et al. by Stephen C. Willey; for the Marijuana Policy Project et al. by Cheryl Flax-Davidson; and for the National Organization for the Reform of Marijuana Laws et al. by John Wesley Hall, Jr., Joshua L. Dratel, and Sheryl Gordon McCloud.
Briefs of amici curiae were filed for the Pacific Legal Foundation by M. Reed Hopper, Sharon L. Browne, and Deborah J. La Fetra; and for the Reason Foundation by Manuel S. Klausner.
Justice Stevens
delivered the opinion of the Court.
California is one of at least nine States that authorize the use of marijuana for medicinal purposes. The question presented in this case is whether the power vested in Congress by Article I, §8, of the Constitution “[t]o make all Laws which shall be necessary and proper for carrying into Execution” its authority to “regulate Commerce with foreign Nations, and among the several States” includes the power to prohibit the local cultivation and use of marijuana in compliance with California law.
I
California has been a pioneer in the regulation of marijuana. In 1913, California was one of the first States to prohibit the sale and possession of marijuana, and at the end of the century, California became the first State to authorize limited use of the drug for medicinal purposes. In 1996, California voters passed Proposition 215, now codified as the Compassionate Use Act of 1996. The proposition was designed to ensure that “seriously ill” residents of the State have access to marijuana for medical purposes, and to encourage Federal and State Governments to take steps toward ensuring the safe and affordable distribution of the drug to patients in need. The Act creates an exemption from criminal prosecution for physicians, as well as for patients and primary caregivers who possess or cultivate marijuana for medicinal purposes with the recommendation or approval of a physician. A “primary caregiver” is a person who has consistently assumed responsibility for the housing, health, or safety of the patient.
Respondents Angel Raich and Diane Monson are California residents who suffer from a variety of serious medical conditions and have sought to avail themselves of medical marijuana pursuant to the terms of the Compassionate Use Act. They are being treated by licensed, board-certified family practitioners, who have concluded, after prescribing a host of conventional medicines to treat respondents’ conditions and to alleviate their associated symptoms, that marijuana is the only drug available that provides effective treatment. Both women have been using marijuana as a medication for several years pursuant to their doctors’ recommendation, and both rely heavily on cannabis to function on a daily basis. Indeed, Raich’s physician believes that forgoing cannabis treatments would certainly cause Raich excruciating pain and could very well prove fatal.
Respondent Monson cultivates her own marijuana, and ingests the drug in a variety of ways including smoking and using a vaporizer. Respondent Raich, by contrast, is unable to cultivate her own, and thus relies on two caregivers, litigating as “John Does,” to provide her with locally grown marijuana at no charge. These caregivers also process the cannabis into hashish or keif, and Raich herself processes some of the marijuana into oils, balms, and foods for consumption.
On August 15, 2002, county deputy sheriffs and agents from the federal Drug Enforcement Administration (DEA) came to Monson’s home. After a thorough investigation, the county officials concluded that her use of marijuana was entirely lawful as a matter of California law. Nevertheless, after a 3-hour standoff, the federal agents seized and destroyed all six of her cannabis plants.
Respondents thereafter brought this action against the Attorney General of the United States and the head of the DEA seeking injunctive and declaratory relief prohibiting the enforcement of the federal Controlled Substances Act (CSA), 84 Stat. 1242, 21 U. S. C. § 801 et seq., to the extent it prevents them from possessing, obtaining, or manufacturing cannabis for their personal medical use. In their complaint and supporting affidavits, Raich and Monson described the severity of their afflictions, their repeatedly futile attempts to obtain relief with conventional medications, and the opinions of their doctors concerning their need to use marijuana. Respondents claimed that enforcing the CSA against them would violate the Commerce Clause, the Due Process Clause of the Fifth Amendment, the Ninth and Tenth Amendments of the Constitution, and the doctrine of medical necessity.
The District Court denied respondents’ motion for a preliminary injunction. Raich v. Ashcroft, 248 F. Supp. 2d 918 (ND Cal. 2003). Although the court found that the federal enforcement interests “wane[d]” when compared to the harm that California residents would suffer if denied access to medically necessary marijuana, it concluded that respondents could not demonstrate a likelihood of success on the merits of their legal claims. Id., at 931.
A divided panel of the Court of Appeals for the Ninth Circuit reversed and ordered the District Court to enter a preliminary injunction. Raich v. Ashcroft, 352 F. 3d 1222 (2003). The court found that respondents Had “demonstrated a strong likelihood of success on their claim that, as applied to them, the CSA is an unconstitutional exercise of Congress’ Commerce Clause authority.” Id., at 1227. The Court of Appeals distinguished prior Circuit cases upholding the CSA in the face of Commerce Clause challenges by focusing on what it deemed to be the “separate and distinct class of activities” at issue in this case: “the intrastate, noncommercial cultivation and possession of cannabis for personal medical purposes as recommended by a patient’s physician pursuant to valid California state law.” Id., at 1228. The court found the latter class of activities “different in kind from drug trafficking” because interposing a physician’s recommendation raises different health and safety concerns, and because “this limited use is clearly distinct from the broader illicit drug market — as well as any broader commercial market for medicinal marijuana — insofar as the medicinal marijuana at issue in this case is not intended for, nor does it enter, the stream of commerce.” Ibid.
The majority placed heavy reliance on our decisions in United States v. Lopez, 514 U. S. 549 (1995), and United States v. Morrison, 529 U. S. 598 (2000), as interpreted by recent Circuit precedent, to hold that this separate class of purely local activities was beyond the reach of federal power. In contrast, the dissenting judge concluded that the CSA, as applied to respondents, was clearly valid under Lopez and Morrison; moreover, he thought it “simply impossible to distinguish the relevant conduct surrounding the cultivation and use of the marijuana crop at issue in this case from the cultivation and use of the wheat crop that affected interstate commerce in Wickard v. Filburn” 352 F. 3d, at 1235 (opinion of Beam, J.).
The obvious importance of the case prompted our grant of certiorari. 542 U. S. 936 (2004). The case is made difficult by respondents’ strong arguments that they will suffer irreparable harm because, despite a congressional finding to the contrary, marijuana does have valid therapeutic purposes. The question before us, however, is not whether it is wise to enforce the statute in these circumstances; rather, it is whether Congress’ power to regulate interstate markets for medicinal substances encompasses the portions of those markets that are supplied with drugs produced and consumed locally. Well-settled law controls our answer. The CSA is a valid exercise of federal power, even as applied to the troubling facts of this case. We accordingly vacate the judgment of the Court of Appeals.
II
Shortly after taking office in 1969, President Nixon declared a national “war on drugs.” As the first campaign of that war, Congress set out to enact legislation that would consolidate various drug laws on the books into a comprehensive statute, provide meaningful regulation over legitimate sources of drugs to prevent diversion into illegal channels, and strengthen law enforcement tools against the traffic in illicit drugs. That effort culminated in the passage of the Comprehensive Drug Abuse Prevention and Control Act of 1970, 84 Stat. 1236.
This was not, however, Congress’ first attempt to regulate the national market in drugs. Rather, as early as 1906 Congress enacted federal legislation imposing labeling regulations on medications and prohibiting the manufacture or shipment of any adulterated or misbranded drug traveling in interstate commerce. Aside from these labeling restrictions, most domestic drug regulations prior to 1970 generally came in the guise of revenue laws, with the Department of the Treasury serving as the Federal Government’s primary enforcer. For example, the primary drug control law, before being repealed by the passage of the CSA, was the Harrison Narcotics Act of 1914, 38 Stat. 786 (repealed 1970). The Harrison Act sought to exert control over the possession and sale of narcotics, specifically cocaine and opiates, by requiring producers, distributors, and purchasers to register with the Federal Government, by assessing taxes against parties so registered, and by regulating the issuance of prescriptions.
Marijuana itself was not significantly regulated by the Federal Government until 1937 when accounts of marijuana’s addictive qualities and physiological effects, paired with dissatisfaction with enforcement efforts at state and local levels, prompted Congress to pass the Marihuana Tax Act, 50 Stat. 551 (repealed 1970). Like the Harrison Act, the Marihuana Tax Act did not outlaw the possession or sale of marijuana outright. Rather, it imposed registration and reporting requirements for all individuals importing, producing, selling, or dealing in marijuana, and required the payment of annual taxes in addition to transfer taxes whenever the drug changed hands. Moreover, doctors wishing to prescribe marijuana for medical purposes were required to comply with rather burdensome administrative requirements. Noncompliance exposed traffickers to severe federal penalties, whereas compliance would often subject them to prosecution under state law. Thus, while the Marihuana Tax Act did not declare the drug illegal per se, the onerous administrative requirements, the prohibitively expensive taxes, and the risks attendant on compliance practically curtailed the marijuana trade.
Then in 1970, after declaration of the national “war on drugs,” federal drug policy underwent a significant transformation. A number of noteworthy events precipitated this policy shift. First, in Leary v. United States, 395 U. S. 6 (1969), this Court held certain provisions of the Marihuana Tax Act and other narcotics legislation unconstitutional. Second, at the end of his term, President Johnson fundamentally reorganized the federal drug control agencies. The Bureau of Narcotics, then housed in the Department of the Treasury, merged with the Bureau of Drug Abuse Control, then housed in the Department of Health, Education, and Welfare (HEW), to create the Bureau of Narcotics and Dangerous Drugs, currently housed in the Department of Justice. Finally, prompted by a perceived need to consolidate the growing number of piecemeal drug laws and to enhance federal drug enforcement powers, Congress enacted the Comprehensive Drug Abuse Prevention and Control Act.
Title II of that Act, the CSA, repealed most of the earlier antidrug laws in favor of a comprehensive regime to combat the international and interstate traffic in illicit drugs. The main objectives of the CSA were to conquer drug abuse and to control the legitimate and illegitimate traffic in controlled substances. Congress was particularly concerned with the need to prevent the diversion of drugs from legitimate to illicit channels.
To effectuate these goals, Congress devised a closed regulatory system making it unlawful to manufacture, distribute, dispense, or possess any controlled substance except in a manner authorized by the CSA. 21 U. S. C. §§ 841(a)(1), 844(a). The CSA categorizes all controlled substances into five schedules. §812. The drugs are grouped together based on their accepted medical uses, the potential for abuse, and their psychological and physical effects on the body. §§811, 812. Each schedule is associated with a distinct set of controls regarding the manufacture, distribution, and use of the substances listed therein. §§821-830. The CSA and its implementing regulations set forth strict requirements regarding registration, labeling and packaging, production quotas, drug security, and recordkeeping. Ibid.; 21 CFR § 1301 et seq. (2004).
In enacting the CSA, Congress classified marijuana as a Schedule I drug. 21 U. S. C. § 812(c). This preliminary classification was based, in part, on the recommendation of the Assistant Secretary of HEW “that marihuana be retained within schedule I at least until the completion of certain studies now underway.” Schedule I drugs are categorized as such because of their high potential for abuse, lack of any accepted medical use, and absence of any accepted safety for use in medically supervised treatment. § 812(b)(1). These three factors, in varying gradations, are also used to categorize drugs in the other four schedules. For example, Schedule II substances also have a high potential for abuse which may lead to severe psychological or physical dependence, but unlike Schedule I drugs, they have a currently accepted medical use. § 812(b)(2). By classifying marijuana as a Schedule I drug, as opposed to listing it on a lesser schedule, the manufacture, distribution, or possession of marijuana became a criminal offense, with the sole exception being use of the drug as part of a Food and Drug Administration preapproved research study. § § 823(f), 841(a)(1), 844(a); see also United States v. Oakland Cannabis Buyers’ Cooperative, 532 U. S. 483, 490 (2001).
The CSA provides for the periodic updating of schedules and delegates authority to the Attorney General, after consultation with the Secretary of Health and Human Services, to add, remove, or transfer substances to, from, or between schedules. §811. Despite considerable efforts to reschedule marijuana, it remains a Schedule I drug.
1=1 1=( )=l
Respondents in this case do not dispute that passage of the CSA, as part of the Comprehensive Drug Abuse Prevention and Control Act, was well within Congress’ commerce power. Brief for Respondents 22,38. Nor do they contend that any provision or section of the CSA amounts to an unconstitutional exercise of congressional authority. Rather, respondents’ challenge is actually quite limited; they argue that the CSA’s categorical prohibition of the manufacture and possession of marijuana as applied to the intrastate manufacture and possession of marijuana for medical purposes pursuant to California law exceeds Congress’ authority under the Commerce Clause.
In assessing the validity of congressional regulation, none of our Commerce Clause cases can be viewed in isolation. As charted in considerable detail in United States v. Lopez, our understanding of the reach of the Commerce Clause, as well as Congress’ assertion of authority thereunder, has evolved over time. The Commerce Clause emerged as the Framers’ response to the central problem giving rise to the Constitution itself: the absence of any federal commerce power under the Articles of Confederation. For the first century of our history, the primary use of the Clause was to preclude the kind of discriminatory state legislation that had once been permissible. Then, in response to rapid industrial development and an increasingly interdependent national economy, Congress “ushered in a new era of federal regulation under the commerce power,” beginning with the enactment of the Interstate Commerce Act in 1887, 24 Stat. 379, and the Sherman Antitrust Act in 1890, 26 Stat. 209, as amended, 15 U. S. C. § 2 et seq.
Cases decided during that “new era,” which now spans more than a century, have identified three general categories of regulation in which Congress is authorized to engage under its commerce power. First, Congress can regulate the channels of interstate commerce. Perez v. United States, 402 U.S. 146, 150 (1971). Second, Congress has authority to regulate and protect the instrumentalities of interstate commerce, and persons or things in interstate commerce. Ibid. Third, Congress has the power to regulate activities that substantially affect interstate commerce. Ibid.; NLRB v. Jones & Laughlin Steel Corp., 301 U. S. 1, 37 (1937). Only the third category is implicated in the case at hand.
Our case law firmly establishes Congress’ power to regulate purely local activities that are part of an economic “class of activities” that have a substantial effect on interstate commerce. See, e. g., Perez, 402 U. S., at 151; Wickard v. Filburn, 317 U. S. 111, 128-129 (1942). As we stated in Wick-ard, “even if appellee’s activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce.” Id., at 125. We have never required Congress to legislate with scientific exactitude. When Congress decides that the “‘total incidence’ ” of a practice poses a threat to a national market, it may regulate the entire class. See Perez, 402 U. S., at 154-155 (“ ‘[W]hen it is necessary in order to prevent an evil to make the law embrace more than the precise thing to be prevented it may do so’ ” (quoting Westfall v. United States, 274 U. S. 256, 259 (1927))). In this vein, we have reiterated that when “ ‘a general regulatory statute bears a substantial relation to commerce, the de minimis character of individual instances arising under that statute is of no consequence.’ ” E. g., Lopez, 514 U. S., at 558 (quoting Maryland v. Wirtz, 392 U. S. 183, 196, n. 27 (1968); emphasis deleted).
Our decision in Wickard, 317 U. S. 111, is of particular relevance. In Wickard, we upheld
Question: Who is the petitioner of the case?
001. attorney general of the United States, or his office
002. specified state board or department of education
003. city, town, township, village, or borough government or governmental unit
004. state commission, board, committee, or authority
005. county government or county governmental unit, except school district
006. court or judicial district
007. state department or agency
008. governmental employee or job applicant
009. female governmental employee or job applicant
010. minority governmental employee or job applicant
011. minority female governmental employee or job applicant
012. not listed among agencies in the first Administrative Action variable
013. retired or former governmental employee
014. U.S. House of Representatives
015. interstate compact
016. judge
017. state legislature, house, or committee
018. local governmental unit other than a county, city, town, township, village, or borough
019. governmental official, or an official of an agency established under an interstate compact
020. state or U.S. supreme court
021. local school district or board of education
022. U.S. Senate
023. U.S. senator
024. foreign nation or instrumentality
025. state or local governmental taxpayer, or executor of the estate of
026. state college or university
027. United States
028. State
029. person accused, indicted, or suspected of crime
030. advertising business or agency
031. agent, fiduciary, trustee, or executor
032. airplane manufacturer, or manufacturer of parts of airplanes
033. airline
034. distributor, importer, or exporter of alcoholic beverages
035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked
036. American Medical Association
037. National Railroad Passenger Corp.
038. amusement establishment, or recreational facility
039. arrested person, or pretrial detainee
040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association
041. author, copyright holder
042. bank, savings and loan, credit union, investment company
043. bankrupt person or business, or business in reorganization
044. establishment serving liquor by the glass, or package liquor store
045. water transportation, stevedore
046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines
047. brewery, distillery
048. broker, stock exchange, investment or securities firm
049. construction industry
050. bus or motorized passenger transportation vehicle
051. business, corporation
052. buyer, purchaser
053. cable TV
054. car dealer
055. person convicted of crime
056. tangible property, other than real estate, including contraband
057. chemical company
058. child, children, including adopted or illegitimate
059. religious organization, institution, or person
060. private club or facility
061. coal company or coal mine operator
062. computer business or manufacturer, hardware or software
063. consumer, consumer organization
064. creditor, including institution appearing as such; e.g., a finance company
065. person allegedly criminally insane or mentally incompetent to stand trial
066. defendant
067. debtor
068. real estate developer
069. disabled person or disability benefit claimant
070. distributor
071. person subject to selective service, including conscientious objector
072. drug manufacturer
073. druggist, pharmacist, pharmacy
074. employee, or job applicant, including beneficiaries of
075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan
076. electric equipment manufacturer
077. electric or hydroelectric power utility, power cooperative, or gas and electric company
078. eleemosynary institution or person
079. environmental organization
080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer.
081. farmer, farm worker, or farm organization
082. father
083. female employee or job applicant
084. female
085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of
086. fisherman or fishing company
087. food, meat packing, or processing company, stockyard
088. foreign (non-American) nongovernmental entity
089. franchiser
090. franchisee
091. lesbian, gay, bisexual, transexual person or organization
092. person who guarantees another's obligations
093. handicapped individual, or organization of devoted to
094. health organization or person, nursing home, medical clinic or laboratory, chiropractor
095. heir, or beneficiary, or person so claiming to be
096. hospital, medical center
097. husband, or ex-husband
098. involuntarily committed mental patient
099. Indian, including Indian tribe or nation
100. insurance company, or surety
101. inventor, patent assigner, trademark owner or holder
102. investor
103. injured person or legal entity, nonphysically and non-employment related
104. juvenile
105. government contractor
106. holder of a license or permit, or applicant therefor
107. magazine
108. male
109. medical or Medicaid claimant
110. medical supply or manufacturing co.
111. racial or ethnic minority employee or job applicant
112. minority female employee or job applicant
113. manufacturer
114. management, executive officer, or director, of business entity
115. military personnel, or dependent of, including reservist
116. mining company or miner, excluding coal, oil, or pipeline company
117. mother
118. auto manufacturer
119. newspaper, newsletter, journal of opinion, news service
120. radio and television network, except cable tv
121. nonprofit organization or business
122. nonresident
123. nuclear power plant or facility
124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels
125. shareholders to whom a tender offer is made
126. tender offer
127. oil company, or natural gas producer
128. elderly person, or organization dedicated to the elderly
129. out of state noncriminal defendant
130. political action committee
131. parent or parents
132. parking lot or service
133. patient of a health professional
134. telephone, telecommunications, or telegraph company
135. physician, MD or DO, dentist, or medical society
136. public interest organization
137. physically injured person, including wrongful death, who is not an employee
138. pipe line company
139. package, luggage, container
140. political candidate, activist, committee, party, party member, organization, or elected official
141. indigent, needy, welfare recipient
142. indigent defendant
143. private person
144. prisoner, inmate of penal institution
145. professional organization, business, or person
146. probationer, or parolee
147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer
148. public utility
149. publisher, publishing company
150. radio station
151. racial or ethnic minority
152. person or organization protesting racial or ethnic segregation or discrimination
153. racial or ethnic minority student or applicant for admission to an educational institution
154. realtor
155. journalist, columnist, member of the news media
156. resident
157. restaurant, food vendor
158. retarded person, or mental incompetent
159. retired or former employee
160. railroad
161. private school, college, or university
162. seller or vendor
163. shipper, including importer and exporter
164. shopping center, mall
165. spouse, or former spouse
166. stockholder, shareholder, or bondholder
167. retail business or outlet
168. student, or applicant for admission to an educational institution
169. taxpayer or executor of taxpayer's estate, federal only
170. tenant or lessee
171. theater, studio
172. forest products, lumber, or logging company
173. person traveling or wishing to travel abroad, or overseas travel agent
174. trucking company, or motor carrier
175. television station
176. union member
177. unemployed person or unemployment compensation applicant or claimant
178. union, labor organization, or official of
179. veteran
180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL)
181. wholesale trade
182. wife, or ex-wife
183. witness, or person under subpoena
184. network
185. slave
186. slave-owner
187. bank of the united states
188. timber company
189. u.s. job applicants or employees
190. Army and Air Force Exchange Service
191. Atomic Energy Commission
192. Secretary or administrative unit or personnel of the U.S. Air Force
193. Department or Secretary of Agriculture
194. Alien Property Custodian
195. Secretary or administrative unit or personnel of the U.S. Army
196. Board of Immigration Appeals
197. Bureau of Indian Affairs
198. Bonneville Power Administration
199. Benefits Review Board
200. Civil Aeronautics Board
201. Bureau of the Census
202. Central Intelligence Agency
203. Commodity Futures Trading Commission
204. Department or Secretary of Commerce
205. Comptroller of Currency
206. Consumer Product Safety Commission
207. Civil Rights Commission
208. Civil Service Commission, U.S.
209. Customs Service or Commissioner of Customs
210. Defense Base Closure and REalignment Commission
211. Drug Enforcement Agency
212. Department or Secretary of Defense (and Department or Secretary of War)
213. Department or Secretary of Energy
214. Department or Secretary of the Interior
215. Department of Justice or Attorney General
216. Department or Secretary of State
217. Department or Secretary of Transportation
218. Department or Secretary of Education
219. U.S. Employees' Compensation Commission, or Commissioner
220. Equal Employment Opportunity Commission
221. Environmental Protection Agency or Administrator
222. Federal Aviation Agency or Administration
223. Federal Bureau of Investigation or Director
224. Federal Bureau of Prisons
225. Farm Credit Administration
226. Federal Communications Commission (including a predecessor, Federal Radio Commission)
227. Federal Credit Union Administration
228. Food and Drug Administration
229. Federal Deposit Insurance Corporation
230. Federal Energy Administration
231. Federal Election Commission
232. Federal Energy Regulatory Commission
233. Federal Housing Administration
234. Federal Home Loan Bank Board
235. Federal Labor Relations Authority
236. Federal Maritime Board
237. Federal Maritime Commission
238. Farmers Home Administration
239. Federal Parole Board
240. Federal Power Commission
241. Federal Railroad Administration
242. Federal Reserve Board of Governors
243. Federal Reserve System
244. Federal Savings and Loan Insurance Corporation
245. Federal Trade Commission
246. Federal Works Administration, or Administrator
247. General Accounting Office
248. Comptroller General
249. General Services Administration
250. Department or Secretary of Health, Education and Welfare
251. Department or Secretary of Health and Human Services
252. Department or Secretary of Housing and Urban Development
253. Interstate Commerce Commission
254. Indian Claims Commission
255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement
256. Internal Revenue Service, Collector, Commissioner, or District Director of
257. Information Security Oversight Office
258. Department or Secretary of Labor
259. Loyalty Review Board
260. Legal Services Corporation
261. Merit Systems Protection Board
262. Multistate Tax Commission
263. National Aeronautics and Space Administration
264. Secretary or administrative unit of the U.S. Navy
265. National Credit Union Administration
266. National Endowment for the Arts
267. National Enforcement Commission
268. National Highway Traffic Safety Administration
269. National Labor Relations Board, or regional office or officer
270. National Mediation Board
271. National Railroad Adjustment Board
272. Nuclear Regulatory Commission
273. National Security Agency
274. Office of Economic Opportunity
275. Office of Management and Budget
276. Office of Price Administration, or Price Administrator
277. Office of Personnel Management
278. Occupational Safety and Health Administration
279. Occupational Safety and Health Review Commission
280. Office of Workers' Compensation Programs
281. Patent Office, or Commissioner of, or Board of Appeals of
282. Pay Board (established under the Economic Stabilization Act of 1970)
283. Pension Benefit Guaranty Corporation
284. U.S. Public Health Service
285. Postal Rate Commission
286. Provider Reimbursement Review Board
287. Renegotiation Board
288. Railroad Adjustment Board
289. Railroad Retirement Board
290. Subversive Activities Control Board
291. Small Business Administration
292. Securities and Exchange Commission
293. Social Security Administration or Commissioner
294. Selective Service System
295. Department or Secretary of the Treasury
296. Tennessee Valley Authority
297. United States Forest Service
298. United States Parole Commission
299. Postal Service and Post Office, or Postmaster General, or Postmaster
300. United States Sentencing Commission
301. Veterans' Administration
302. War Production Board
303. Wage Stabilization Board
304. General Land Office of Commissioners
305. Transportation Security Administration
306. Surface Transportation Board
307. U.S. Shipping Board Emergency Fleet Corp.
308. Reconstruction Finance Corp.
309. Department or Secretary of Homeland Security
310. Unidentifiable
311. International Entity
Answer:
|
songer_appnatpr
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
URBAN REDEVELOPMENT CORPORATION, Petitioner, v. COMMISSIONER OF INTERNAL REVENUE, Respondent.
No. 8334.
United States Court of Appeals Fourth Circuit.
Argued June 16, 1961.
Decided Sept. 19, 1961.
Fred R. Tansill, Washington, D. C. (Goodwin, Rosenbaum, Meacham & White, Washington, D. C., on brief), for petitioner.
Kenneth E. Levin, Atty. Dept, of Justice, Washington, E). C. (Louis F. Oberdorfer, Asst. Atty. Gen., Lee A. Jackson and Melva M. Graney, Attys. Dept, of Justice, Washington, D. C., on brief), for respondent.
Before SOBELOFF, Chief Judge, and SOPER and BOREMAN, Circuit Judges.
BOREMAN, Circuit Judge.
This is a petition for review by the taxpayer of a decision of the Tax Court, reported in 34 T.C. 845, No. 87 (August 15, 1960). The basic facts stated herein appear to be undisputed and were either stipulated by the parties or found by the Tax Court.
Urban Redevelopment Corporation, sometimes hereinafter referred to as Urban or taxpayer, is a'New York corporation organized on October 16, 1949. Until July 14, 1953, its principal place of business was in New York City, but on that date its office was moved to Alexandria, Virginia, and it was qualified to do business in Virginia. The corporation filed its tax returns for fiscal years ending on September 30, 1954, and September 30, 1955, with the District Director of Internal Revenue in Richmond, Virginia.
For those years the taxpayer deducted losses incurred during the prior tax years of 1950, 1951 and 1953 to offset otherwise taxable income of $81,802.68 in fiscal 1954 and $36,295.58 in fiscal 1955. The deductions were claimed under Int.Rev.Code of 1939, § 122(b), 26 U.S.C.A. § 122(b), and Int.Rev.Code of 1954, § 172(a) and (g), 26 U.S.C.A. § 172(a, g). Section 172(g) of the Int. Rev.Code of 1954 returns us to Int.Rev. Code of 1939, § 122(b), the governing section for all tax years here involved. That section provides, in pertinent part, that net operating losses incurred after December 31, 1949, may be carried forward for each of the five succeeding taxable years. The Commissioner of Internal Revenue disallowed the deduction, however, and the Tax Court, concurring with the Commissioner, found that_the principal purpose for thejuxchase of taxpayer’s stock by its sole stockholder, who~will'"indtrectly--receiy;e -the-benefit of a deduction, was avoidance of federal taxation and held that taxpayer was not entitled to the deductions under Int. Rev.Code of 1939; § 129; "26'U.S.C.A. § 129 (Int.Rev.Code of 1954, § 269, 26 U. S.C.A. § 269). These sections provide that if, on or after October 8, 1940, any person or persons acquire control of a corporation and the principal purpose for such acquisition is evasion or avoidance of federal income tax by securing the benefit of a deduction, credit or allowance which such person would not otherwise enjoy, then such deduction, credit or other allowance shall not be allowed.
According to Urban’s certificate of incorporation, its principal objects and'purposes are generally to buy, delinease, construct or otherwise deal ihJre'aT-and personal property. _ It was empowered to conduct these activities throughout the United States.
Prior to May 20, 1953, one Fred F. Stoneman acquired all of Urban’s authorized, iisued and-'outstanding stock, both common and preferred. Between the date of incorporation and May 20, 1953, Stoneman lent various sums to Urban and on the latter date, to evidence the obligations, Urban issued to Stone-man a promissory note, payable on demand, for $5,321.26 with six per cent interest.
Urban incurred net operating losses (before adjustment necessary under Int. Rev.Code of 1939, § 122, to determine the proper net operating loss carry-over) for - the years indicated and in the stated amounts as shown below:
Fiscal year ended September 30
1950 ......................$55,006.15
1951 ...................... 74,815.11
1953 ...................... 378.35
During 1952 the taxpayer was Jnactive and had neither profit nor loss.
Randolph Rouse, in 1953 and prior thereto as early as 1947, was a land developer and builder in Virginia. He is shown to be the principal stockholder and dominant personality in. several construction corporations. Through a mutual acquaintance, Rouse was introduced in 1953 to Allen Thurman, a resident of Arlington, Virginia, and agent for Stone-man in respect to the sale of the latter's stock in Urban. Thurman introduced Souse to Stoneman and negotiatiffittg- for the sale of stock in Urban were carried on amcBrg~the three individuals.
In the course of negotiations, Thurman stated that Urban had among its assets certain plans for the construction of multiple-unit dwelling houses. Rouse was shown a letter dated June 20, 1950, from Eugene Greenhut to Urban indicating that certain architectural plans, specifications and other related data for a proposed housing project in Boston, Massachusetts, had been sold to Urban for an adjusted price of $21,000. Green-hut also indicated that he owned “complete preliminary plans, specifications and other related data” for a proposed housing project in Kansas City. He agreed to sell and the taxpayer agreed to buy the Kansas City plans for $30,000. Greenhut had at some time prior to May 20, 1953, been an officer, director and minority stockholder of Urban. Rouse did not verify the existence or value of the plans; neither he nor his agents ever saw the plans, drawings or specifications prior to the time he purchased the Urban stock. He did see certain rough sketches known as “renderings,” however. Rouse made no attempt at any time to purchase the aforementioned plans, drawings, specifications and other related data directly from taxpayer.
During negotiations, Thurman told Rouse of taxpayer’s operating losses incurred during particular fiscal years and the exact amounts. Rouse sent his certified public accountant to New York to examine the taxpayer’s books and the accountant verified the books and the net operating losses “to “almost the dollar.” RoffsebT attorney also verified the legal corporate existence of the taxpayer.
On or about May 20, 1953, Rouse purchased from Stoneman alLHuT' Urbaii_ preferred and common stock, together with Urban’s ñoté“payabté' tcT Stoneman (covering its indebtedness of $5,321.26 to Stoneman) for the sum of $12,250. During the taxable years ending in 1954 and 1955, Urban, the stock of which was wholly fiwned by Rouse, éñgagedTñ“tRe constructIdh'“ahd'sale of~detacSed^esidenfial property in the area around'ATY lington County, Virginia. These operationV resulted iñ sübstantial profits. As the sole stockholder of Urban, Rouse would alone benefit through a reduction of Urban’s income taxes resulting from its loss carry-overs.
After Rouse acquired control of Urban, he made some ineffectual efforts to secure possession of (the' plafis," specifications and drawings represented to be assets of the taxpayer. As president of Urban, Rouse wrote a letter to Stone-man on February 15, 1954, in which he recited the representation by Thurman that certain plans were the property of Urban and would be delivered to Rouse in connection with his purchase of the stock. He requested that Stoneman make the plans available immediately. On March 9, 1954, Rouse wrote to Green-hut reciting the representation by Thurman that the plans and other data were in Greenhut’s possession and stating that the plans were then urgently needed. He asked that Greenhut advise him as to whether and when the data could be picked up. Rouse next conferred about the matter with taxpayer’s attorney who, on April 5, 1954, wrote to Greenhut and, on behalf of the taxpayer, made formal demand for the property. There was no compliance with the demand nor was there any effort made to follow up or pursue the matter further and the main plans and specifications were never obtained. Only a few miscellaneous files and plats of no real value were recovered.
The Tax Court also found as ultimate facts that Rouse had acquired, after October 8, 1940, control of Urban by a purchase of all of its outstanding stock and that his principal purpose in acquiring this stock was the avoidance of federal income tax by securing the benefit of deductions, namely, for net operating losses incurred by the taxpayer in the years 1950 and 1951 which he, Rouse, would not otherwise have enjoyed.
The taxpayer’s main point on appeal is that the Tax Court’s finding concerning Rouse’s purpose in acquiring the Urban stock is not supported by the evidence. It is contended that the Tax Court clearly erred when it failed to accept Rouse’s uncontroverted testimony that TTis main'purpose- in acquiring taxpayers'stock was To obtain the-plans, drawings and specifications belonging to the corporation and not for the purpose of .avoidance of federal taxes.
Rouse and taxpayer’s attorney, both called by taxpayer, were the only witnesses before the Tax Court. Their testimony was not contradicted by other witnesses or by cross-examination. Rather, most of the Tax Court’s findings (excepting only those based on the facts as stipulated and the few exhibits) were taken from the testimony of these two witnesses. In the words of taxpayer, “It only remains to be considered, then, whether or not their disregarded testimony was (1) inherently improbable in some respects but not in all, and (2) whether internal analysis of such testimony destroyed its credibility.”
We agree with the Tax Court that Rouse’s stated reasons for acquiring Urban’s stock are “inherentlYTmDr.obable.’’ and that internal analysis of Rouse's testimony destroys his credibility as to his primary purpose in purchasing the stock.
Taxpayer alleges that the Tax Court’s finding that Rouse never made any attempt to purchase the plans and specifications directly from it is only “a half truth.” The other half of the truth, it is contended, is that Rouse, as a prudent business man, preferred to purchase one hundred per cent of the corporation’s-stock rather than its assets and that this could not have been done with a Virginia corporation. No reason is even suggested why one cannot purchase all of the stock of an existing Virginia corporation, but taxpayer does suggest that the Virginia Code requires a minimum of three incorporators to form a new corporation. The court takes judicial notice of the fact that Virginia corporations must have at least three natural persons to serve as incorporators and that they must have at least three directors, but there is no provision that incorporators or directors must be stockholders. Rouse testified that the cost of forming a Virginia corporation was “about three or four hundred dollars.” Thus it is inherently improbablejthat a prüdeñt'b'üsméss man~wouíd“spend"$Í2,500 to "acquire a corporate form when a new corporation could have been created for approximately one-thirtieth of that amount.' On the other hand, it is very probable thaT~an~li)eft~ ’business" man would eagerly take advantage of an opportunity to acquire potential tax benefits aggregating amounts several times greater than an investment of $12,500.
Next, taxpayer raises the poinf'that Rouse, an experienced builder, could determine the value and be assured of the existence of the plans and specifications which he allegedly was seeking to acquire by merely seeing and studying some architectural “renderings.” To us it is inherently improbable that a business man”who is prudent' enough to’have his certified public accountant verify the taxpayer’s net operating losses'“to almost the dollar,” and his attorney check the legality of the corporate structure and of status of taxpayer, would _ fail to cheek tl^ejíxistence. and_ready availability of the very property which, accordihITto TiTm, he was seeking to acqun^byTUmJh’aSing'the Urban" stock. Thertds no iritnmtíbñ" that'Rouse'relied upon Greenhut’s reputation as an architect when considering the acquisition of these plans by this indirect method. In fact he later viewed Greenhut as a “slippery character,” according to the testimony of Urban’s attorney. The mere fact that there was a showing that taxpayer paid Greenhut, one of its former officers and directors, over $50,000 for the plans does not prove either their existence or their true value.
As stated, Rouse wrote a few letters and made some unsuccessful efforts to obtain possession of the plans subsequent to his acquisition of the Urban stock. He took no legal action, however, against Greenhut, who allegedly had possession of the plans, or against Stoneman to rescind the contract. It is suggested that Rouse thought Greenhut to be judgment proof and consequently saw no reason to “throw good money after bad” in suing him. Upon the record there is no apparent reason why an action could not have been brought against Greenhut to recover the plans themselves rather than a money judgment. There is no suggestion that Stoneman was considered financially irresponsible and unable to respond to judgment had an action to rescind the contract been brought against him.
It is true, as the taxpayer points out, that, as a general rule, positive testimony as to a particular fact, uncontradicted by anyone, should control a decision of the court. This rule has many exceptions, however, and does not aid the taxpayer here. One such exception, as taxpayer is aware, is that inherent improbability in the statements of a witness will induce the court to disregard his testimony. Thomas E. Snyder Sons Co. v. Commissioner, 7 Cir., 1961, 288 F.2d 36, certiorari applied for, 30 U.S.L. Week 3003 (July 4, 1961); Winters v. Dallman, 7 Cir., 1956, 238 F.2d 912; Archer v. Commissioner, 5 Cir., 1955, 227 F.2d 270. Rouse testified that his primary purpose in purchasing taxpayer’s stock was not to avoid taxes but to acquire a going corporation, a capital item that would appreciate in value, and the architectural plans and other materials which the corporation allegedly owned. This uncorroborated testimony of a highly interested witness is, in the light of the objective evidence, simply unrealistic.
This court reviews decisions of the Tax Court in the same manner and to the same extent as it reviews decisions of the district courts in civil actions tried without a jury, and thus the findings of fact below must be “clearly erroneous” before we can reverse. Int.Rev.Code of 1954, § 7482(a), 26 U.S.C.A. § 7482 (a); Federal Rules of Civil Procedure, Rule 52(a), 28 U.S.C.A. We cannot say that the ultimate findings of the Tax Court here are clearly erroneous since they are supported by substantial, though circumstantial, evidence.
Thus the claimed net operating loss carry-over deductions, resulting in deficiencies totaling $45,948.37, are denied under § 129(a) of the 1939 Code and § 269(a) of the 1954 Code. Although the Tax Court formerly interpreted these sections to mean that the deduction was barred only when the person acquiring control of the corporation was seeking the benefit of a deduction, and that the sections did not apply where the taxpayer whose control was acquired was claiming the deduction, the courts of appeals uniformly rejected that view. Recently the Tax Court acquiesced in the interpretation adopted by the appellate courts. _It is now well established that the deductioñ“shouM“‘be " "disallowed “ when, under circumstances as outlined" abbve, it "is claimed by either the acquired corporation or by the person who acquired control of the corporation and who will get the benefit of the deduction, albeit, indirectly. Coastal Oil Storage Co. v. Commissioner, 4 Cir., 1957, 242 F.2d 396; Mill Ridge Coal Co. v. Patterson 5 Cir., 264 F.2d 713; certiorari denied, 1959, 361 U.S. 816, 80 S.Ct. 57, 4 L.Ed.2d 63, rehearing denied, 1960, 363 U.S. 832, 80 S.Ct. 1595, 4 L.Ed.2d 1526; James Realty Co. v. United States, 8 Cir., 1960, 280 F.2d 394; Thomas E. Snyder Sons Co., 1960, 34 T.C. 400, affirmed Thomas E. Snyder Sons Co. v. Commissioner, 7 Cir., 1961, 288 F.2d 36, certiorari applied for, 30 U.S.L. Week 3003 (July 4, 1961).
Finally,_ the_ government contends that Í the deduction of the _ net operating loss carry-overs should be disallowed for the additional reason that the income against which the offset is claimed was not produced by the same business enterprise which incurred the losses. See Libson Shops, Inc. v. Koehler, 1957, 353 U.S. 382, 77 S.Ct. 990, 1 L.Ed.2d 924, rehearing denied, 354 U.S. 943, 77 S.Ct. 1390, 1 L.Ed.2d 1542. In view of our holding it is unnecessary to discuss or decide the applicability of that decision. The decision of the Tax Court is
Affirmed.
. The cost of these plans was entered on Urban’s books as an expense; their value was not shown on the balance sheet as an asset. As of May 20, 1953, the only item listed in tbe “Assets” column of the balance sheet was “Organizational Expense .... $400.”
. Va.Code (1950) § 13.1-48.
. Va.Code (1950) § 13.1-36.
. See Va.Code (1950) § 13.1-35, which, in part, states: “Directors need not be * * * stockholders of the corporation unless the articles of incorporation so require.”
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
songer_opinstat
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify whether the opinion writter is identified in the opinion or whether the opinion was per curiam.
Helen McLanahan STEVENS, Plaintiff, Appellant, v. Chauncey C. LOOMIS et al., Defendants, Appellees.
No. 6268.
United States Court of Appeals First Circuit.
June 23, 1964.
James D. St. Clair, Boston, Mass., with whom Robert E. Fast, Boston, Mass., was on brief, for appellant.
Wilmot R. Hastings and Robert J. Hallisey, Boston, Mass., with whom Bing-ham, Dana & Gould, Boston, Mass., was on brief, for appellees.
Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges.
ALDRICH, Circuit Judge.
This is an appeal from the dismissal of a diversity action, brought in the district court for the district of Massachusetts, for the want of what the district court determined to be an indispensable party plaintiff. The theory or theories of recovery, and some of the facts are less than clear. This much appears. The sole plaintiff is a citizen of New York. She and her sister Elizabeth are the present income beneficiaries of a residuary trust under the will of their mother, Ella. Elizabeth and her husband, the defendant Loomis, are citizens of Massachusetts. Loomis and the co-defendant Agricultural National Bank, also to be treated as a citizen of Massachusetts, were the executors, now discharged, of Ella’s estate, probated in Pennsylvania, and are presently the trustees of the trust. It does not appear whether there may be any future income beneficiaries, or who are the remaindermen, nor is their absence explained, but it is alleged that Elizabeth “has refused and will continue to refuse” to join in the action.
The grounds of the complaint seem to be two. Basically it is alleged that Loomis, while in a fiduciary relationship to Ella during her lifetime, defrauded her of certain shares of- stock by purchasing them for himself at far less than their true value, and that at some undetermined time the bank learned of the fraud, but “has refused and continues to refuse to take any action * * * [against Loomis] to secure for the benefit of Ella’s estate and trust” the proceeds realized by him. The relief prayed for is that Loomis’ profits be determined and that he “be ordered to account to Ella’s estate and/or the Plaintiff”; and that the bank, for “breach of its fiduciary duty to perform and dispatch its duty as co-executor and trustee * * * [be ordered] to pay to Ella’s estate and/or the Plaintiff the amount of such damages.” There was also a prayer for general relief.
The district court, understandably, ruled that the plaintiff was not entitled to have Loomis’ profits paid to herself, or to have directly any of the relief specifically sought. Her interest or damage as a result of the defrauding of Ella can only be, on this record, as a present and future income beneficiary of the trust, the principal of which would have been larger but for Loomis’ alleged misconduct. Fundamentally the claim must be that Loomis committed tortious acts, as executor and trustee, by not causing the estate or trust to sue him in one capacity or another. The bank is arguably liable for similar inaction, depending, however, upon further facts not adequately set forth, but which for present purposes, we will assume.
On such a basis the court concluded that the plaintiff, “acting alone, has a direct, separable right of action” under Massachusetts law. However, it held that the federal rules for joinder of parties control, and that by accepted federal practice Elizabeth was an indispensable party under F.R.Civ.P. 19 (a). From this it followed that the complaint must be dismissed because the joinder of Elizabeth as a party plaintiff would destroy diversity. The court indicated that if Elizabeth should be joined as a defendant and not realigned because of her apparent siding with her husband, no such excuse and ppinciple were applicable to absent remaindermen.
There are, broadly, under the rule, and prior thereto, three classifications of parties; indispensable, necessary (sometimes called conditionally necessary) and formal. A court cannot proceed in the absence of an indispensable party, but will proceed in the absence of a merely formal party. Whether or not it should proceed in the absence of a necessary party is a matter of discretion. Because the classic definition of an indispensable party is one as to whom any judgment, if effective, would necessarily affect his interest, or would, if his interest is eliminated, constitute unreasonable, inequitable, or impractical relief, see cases infra, and the latter question is the same that must be asked when deciding whether to dismiss in the absence of a merely necessary party, where the court concludes not to proceed in the absence of some party there has been a natural tendency to label that party “indispensable” whether he was truly indispensable or only necessary. Nevertheless there is a difference, as some courts, even while ordering a dismissal, have been careful to point out. See, e. g., California v. Southern Pacific Co., 1895, 157 U.S. 229, 251, 15 S.Ct. 591, 39 L.Ed. 683; Heyward v. Public Housing Administration, 1954, 94 U.S.App.D.C. 5, 214 F.2d 222. Although it would not comport with at least the language of many cases, we think that true indispensable parties are only those whose interests could not be excluded from the terms or consequences of the judgment and leave anything, or appreciably anything, for the judgment effectively to operate upon, as where the interests of the absent party are inextricably tied in to the cause, Thayer v. Life Ass’n of America, 1885, 112 U.S. 717, 5 S.Ct. 355, 28 L.Ed. 864; Terrell v. Allison, 1874, 21 Wall. 289, 22 L.Ed. 634; Barney v. City of Baltimore, 1867, 6 Wall. 280, 18 L.Ed. 825, or where the relief really is sought against the absent party alone, Kendig v. Dean, 1878, 97 U.S. 423, 24 L.Ed. 1061; see Note, Indispensable Parties in the Federal Courts, 65 Harv.L.Rev. 1050, 1056 (1952). In other words, if there may be a viable judgment having separable affirmative consequences with respect to parties before the court, and the inquiry is concerned solely with the inequities, in the light of the total circumstances, resulting from the inability to affect absent interested parties, then such other parties should be defined as merely necessary, not indispensable. The distinction is, of course, important. If indispensability is determined solely by the nature of the claim, the courts will have broader discretion to find that a particular plaintiff may proceed in the absence of other parties. This we think is proper.
Applying that principle to the case at bar, and even, we would think, with a more restricted one, if the district court was right, as we are disposed to believe it was, in stating that the plaintiff, as beneficiary, had a direct, separable right of action, this made it incorrect to call the other beneficiaries indispensable. On the basis that they were only necessary parties the court should have considered, as a matter of discretion, whether or not to proceed in their absence. However, on the present record we believe this a case where it would have been an abuse of discretion to proceed. Only incomplete and unsatisfactory relief could be afforded in a suit, the purpose of which was to charge the trustees to augment the corpus of the trust, in which but one income beneficiary was represented. Plaintiff argues that if she were to lose on the merits the situation would remain in statu quo, and no one would be hurt. But one must wonder what would happen if thereafter another beneficiary were to sue and have the trust corpus increased. Conversely, suppose this plaintiff were to win, and then some other beneficiary were to lose.
It is true that the effect of the dismissal of the action is to deny this plaintiff the benefits of diversity jurisdiction, and that it has sometimes been said that federal courts “will strain hard” to support diversity jurisdiction in the application of Rule 19. See Standard Oil Co. of Texas v. Marshall, 5 Cir., 1959, 265 F.2d 46, 56, cert. den. 361 U.S. 915, 80 S.Ct. 259, 4 L.Ed.2d 185; Brown v. Christman, 1942, 75 U.S.App.D.C. 203, 126 F.2d 625, 631-32 n. 23. However, we are shown nothing in the case at bar to make us believe that this factor, if important, is as important as relegating the parties to a jurisdiction, the existence of which has not been denied, where full workable and reasonable relief may be granted. This has been the customary result in similar situations, whether the absent beneficiaries were termed indispensable or otherwise. Baird v. Peoples Bank & Trust Co., 3 Cir., 1941, 120 F.2d 1001, 1003; Matthies v. Seymour Mfg. Co., 2 Cir., 1959, 270 F.2d 365; Young v. Powell, 5 Cir., 1950, 179 F.2d 147, cert. den. 339 U.S. 948, 70 S.Ct. 804, 94 L.Ed. 1362; Talbutt v Security Trust Co., D.C.E.D.Ky., 1938, 22 F.Supp. 241; see Rockefeller v. First National Bank of Brunswick, D.C.S.D.Ga., 1957, 154 F.Supp. 122. The actual decision, apart from certain language therein, in plaintiff’s case of Green v. Green, 7 Cir., 1955, 218 F.2d 130, cert. den. 349 U.S. 917, 75 S.Ct. 606, 99 L.Ed. 1250, is not inconsistent. If an absent beneficiary is merely a necessary party, the fact that no complaint as to her absence was made for two years may be a reason for exercising discretion in favor of not dismissing. Plaintiff’s other cases are distinguishable on the ground that the possibility of granting separate relief made proceeding without the absent parties equitable and reasonable. Waterman v. Canal-Louisiana Bank & Trust Co., 1909, 215 U.S. 33, 30 S.Ct. 10, 54 L.Ed. 80; Payne v. Hook, 1868, 7 Wall. 425, 19 L.Ed. 260; Atwood v. Rhode Island Hospital Trust Co., 1 Cir., 1921, 275 F. 513, cert. den. 257 U.S. 661, 42 S.Ct. 270, 66 L.Ed. 422; Seeley v. Cornell, 5 Cir., 1935, 74 F.2d 353.
Judgment will be entered affirming the judgment of the District Court.
. It is not alleged tliat there are no remaindermen. We cannot believe, particularly in the absence of such allegation, that a testamentary trust would have none. Defendants stated, both in the court below and in this court, that there were remaindermen, and plaintiff maintained silence. We are engaged in a lawsuit, not in a poker game, and if plaintiff chooses not to recite the facts about the other beneficiaries under these circumstances particularly where she was obligated to do so by F.R.Civ.P. 19(e), we will assume that there are other beneficiaries who, if joined, would destroy diversity.
. Plaintiff might, as income beneficiary, have a separable claim to the additional income she would have received to date had the estate been larger. She does not, however, request such fragmentary relief, nor would we, except in unusual circumstances not shown here, be inclined to proceed on that limited basis.
. Not, however, the limited right referred to in the preceding footnote.
. We note, with great deference to the learned reporter to the Advisory Committee on the Civil Rules, see fn. 7, infra, that even he cites, without comment, cases referring to indispensable parties when he is discussing only necessary parties. See subdivision (b) of the Committee Note to the proposed amendment of Rule 19, citing Roos v. Texas Co., 2 Cir., 1927, 23 F.2d 171, cert. den. 277 U.S. 587, 48 S.Ct. 434, 72 L.Ed. 1001; Niles-Bement-Pond Co. v. Iron Moulders Union, 1920, 254 U.S. 77, 41 S.Ct. 39, 65 L.Ed. 145.
. The extent to which these two terms are used almost interchangeably is illustrated by Commonwealth Trust Co. of Pittsburgh v. Smith, 1924, 266 U.S. 152, 159, 45 S.Ct. 26, 69 L.Ed. 219, where the court characterized what seem clearly indispensable parties as “necessary,” without mention of the difference.
. Eor a bibliography of secondary material, see the Committee Note to Rule 19 referred to in the next footnote.
. An extensive re-writing of Rule 19 is presently proposed to eliminate confusion which has arisen regarding various aspects of the rule and to clarify the grounds for exercising the court’s discretion. The new rule omits all reference to indispensable parties, consistent with the view that what are indispensable parties is a matter of substance, not of procedure. See Preliminary Draft of Proposed Amendments to Rules of Civil Procedure for the United States District Courts proposed by the Advisory Committee on Civil Buies, March 1964, and the Committee’s Note, published in Volume 227 F.Supp.
. This would seem equally so under Massachusetts practice, as the Massachusetts rule with respect to joinder of parties is substantially like the federal. See Massachusetts Superior Court Rule 15, and particularly Judge hummus’ annotation to the 1932 edition thereof.
. The district court properly ruled that it had not been shown that there were so many beneficiaries that the proceeding might be justified as a class suit under F.R.Civ.P. 23.
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_appel1_7_5
|
B
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine which of these categories best describes the income of the litigant. Consider the following categories: "not ascertained", "poor + wards of state" (e.g., patients at state mental hospital; not prisoner unless specific indication that poor), "presumed poor" (e.g., migrant farm worker), "presumed wealthy" (e.g., high status job - like medical doctors, executives of corporations that are national in scope, professional athletes in the NBA or NFL; upper 1/5 of income bracket), "clear indication of wealth in opinion", "other - above poverty line but not clearly wealthy" (e.g., public school teachers, federal government employees)." Note that "poor" means below the federal poverty line; e.g., welfare or food stamp recipients. There must be some specific indication in the opinion that you can point to before anyone is classified anything other than "not ascertained". Prisoners filing "pro se" were classified as poor, but litigants in civil cases who proceed pro se were not presumed to be poor. Wealth obtained from the crime at issue in a criminal case was not counted when determining the wealth of the criminal defendant (e.g., drug dealers).
UNITED STATES ex rel. Richard CURTIS, Petitioner-Appellant, v. Frank BLACKBURN, Warden, Louisiana State Penitentiary, and William J. Guste, Jr., Attorney General, State of Louisiana, Respondents-Appellees.
No. 84-3068
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
Dec. 20, 1984.
Glass & Reed, John Wilson Reed, New Orleans, La., for petitioner-appellant.
Richard Curtis, pro se.
Wm. R. Campbell, Jr., Susan Scott Hunt, E. Sue Bernie, New Orleans, La., for respondents-appellees.
Before REAVLEY, POLITZ and HIGGINBOTHAM, Circuit Judges.
POLITZ, Circuit Judge:
Richard Curtis was convicted of second offense armed robbery and was sentenced under the armed robbery statute, La.R.S. 14:64 B, and the habitual offender law, La.R.S. 15:529.1.A(1). Under the recidivist statute Curtís was subject to a minimum sentence of 33 years and a maximum sentence of 198 years. Curtis was sentenced to 198 years at hard labor. His conviction was affirmed, State v. Curtis, 363 So.2d 1375 (La.1978), but his case was remanded for resentencing because the trial judge had improperly imposed a condition that the sentence would not be subject to diminution for good behavior, a statutory provision added to the statute after commission of the first offense.
On remand Curtis was again resentenced to 198 years. He then sought state habeas relief contending that the habitual offender law, as applied to armed robbery, violated the due process and equal protection clauses of the fourteenth amendment because it provided for the imposition of a harsher sentence on a second felony offender than on a fourth offender. The Louisiana Supreme Court denied collateral relief, assigning no reasons. Curtis v. Blackburn, 373 So.2d 545 (La.1979). State remedies exhausted, Curtis filed the instant petition under 28 U.S.C. § 2254, raising the same issue presented to the state court. The district court denied habeas relief. We affirm.
Curtis’ challenge is based on an overlay of the habitual offender statute to the armed robbery statute ■ which results in the following sentencing scheme:
Conviction Minimum Penalty Maximum Penalty
First 5 years 99 years
Second 33 years 198 years
Third 49 years 198 years
Fourth 99 years Life
Although the statute states that the maximum sentence for a fourth offender is life imprisonment, Curtis argues that as a result of the case law interpreting this statute the maximum sentence for a fourth offender is, in effect, 99 years. In support of this view, Curtis cites State v. Delaney, 359 So.2d 976 (La.1978), State v. Alexander, 362 So.2d 775 (La.1978), and State v. Wilson, 363 So.2d 445 (La.1978). These cases offer less than brightline expressions by Louisiana’s highest court of the meaning of the habitual offender statute. In Delaney, with one justice dissenting, the court interpreted La.R.S. 15:529.1 A(3) and concluded that a sentence of 99 years “does not violate the prohibition in the statute that the sentence be ‘not more than his natural life.’ ” 359 So.2d at 977. In Alexander, a unanimous court, applying the same statutory provision and citing Delaney, vacated a 100-year sentence which it found illegal, stating simply: “The term of 100 years actually imposed on defendant clearly exceeds his natural life.” 362 So.2d at 776. Thereafter in Wilson, a divided court vacated a sentence of 110 years for a fourth offender under R.S. 15:529.1 A(3) stating that the sentence was “illegal and must be set aside.” 363 So.2d at 447. In a special concurrence, Justice Calogero, joined by Justice Dennis, mused that if a sentence of 100 years exceeded the defendant’s life expectancy then 99 years did also. These justices found Delaney and Alexander irreconcilable and expressed the opinion that the Louisiana Supreme Court “should either reverse Alexander or find that the sentencing provisions of the habitual offender statute do not apply to multiple convictions for armed robbery.” 363 So.2d at 447.
On the same day it decided Wilson, the Louisiana Supreme Court, with Justice Calogero as author, decided Curtis’ direct appeal, State v. Curtis, 363 So.2d 1375 (La. 1978). The Curtis opinion, on a 5-2 split, overruled Wilson, at least in part, the majority declaring: “We therefore conclude that our recent Wilson decision is incorrect and must be overruled.” 363 So.2d 1383. Thereafter, the court split 4-3 in denying rehearing with Justice Calogero reurging the reasons contained in his special concurrence in Wilson. After reviewing all assignments of error, the court affirmed Curtis’ conviction but remanded for resentencing, finding the 198-year sentence without benefit of diminution for good behavior illegal because of the good time proviso. The court did not otherwise discuss the 198-year sentence.
We cannot reconcile the holdings in Delaney, Alexander, Wilson, and Curtis, but the first three seem to declare that a fourth-offense armed robber may not be sentenced for a period longer than his natural life. It is apparent that Curtis’ 198-year second offense sentence is for a period which extends beyond his natural life span. That sets the stage for Curtis’ contention that second-time offenders are subject to more severe punishment than fourth offenders. On closer examination, and considering the total fabric of the Louisiana sentencing, punishment and pardon scheme, we do not agree.
It is obvious that the minimum sentence for armed robbery increases with each seri-atim offense, from 5 years to 33 years to 49 years to 99 years. A second offender faces a minimum sentence of 33 years. A fourth offender faces a minimum sentence three times greater, 99 years. In light of that reality, the maximum sentence for a fourth offender is of purely academic interest. Neither a second or fourth offender receiving the statutory maximum sentence will ever be released unless they secure a pardon recommendation from the Pardon Board and a pardon from the Governor. La.R.S. 15:572-574.1. Absent such discretionary pardon action by both the Pardon Board and the Governor, neither will ever be eligible for parole consideration. La. R.S. 15:574.2-574.16. As we perceive the matter, Louisiana’s sentencing scheme does not, in actuality, treat a second offender more severely than a fourth offender. What is urged as a lighter penalty is more appearance than reality.
Hopefully in time the Louisiana Supreme Court will address what at least two of its justices recognize as irreconcilable decisions in this area. The posture of the case before us does not present the occasion for this court to rule on the interplay between the armed robbery statute and the habitual offender law. Curtis challenges his sentence under the equal protection and due process clauses of the fourteenth amendment on the grounds that the statute treats second offenders more harshly than fourth offenders. Considering the substantial difference in the minimum sentences, and the realities of the maximum sentences, we are not persuaded. We find no meaningful constitutional infraction.
AFFIRMED.
. La.R.S. 14:64 B provides that a person convicted of armed robbery "shall be imprisoned at hard labor for not less than five years and for not more than ninety-nine years, without benefit of parole, probation or suspension of sentence.” Upon conviction of a second felony, the habitual offender law provides that the sentence of imprisonment “shall be for a determinate term not less than one-third the longest term and not more than twice the longest term prescribed for a first conviction . . . .” La.R.S. 15:529.1 A( 1).
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Which of these categories best describes the income of the litigant?
A. not ascertained
B. poor + wards of state
C. presumed poor
D. presumed wealthy
E. clear indication of wealth in opinion
F. other - above poverty line but not clearly wealthy
Answer:
|
songer_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.
Wilbert J. SHEETS, Plaintiff-Appellant, Cross-Appellee, v. YAMAHA MOTORS CORP., U.S.A., et al., Defendants-Appellees, Cross-Appellants.
No. 87-3420.
United States Court of Appeals, Fifth Circuit.
July 12, 1988.
Steven J. Lane, Russ M. Herman, New Orleans, La., for plaintiff-appellant, cross-appellee.
David F. Bienvenu, Donald Ensenat, New Orleans, La., for defendants-appel-lees, cross-appellants.
Before THORNBERRY, WILLIAMS and DAVIS, Circuit Judges.
JERRE S. WILLIAMS, Circuit Judge:
Appellant, Wilbert J. Sheets, appeals the district court’s dismissal of his lawsuit which asserted causes of action against appellees under the Louisiana Uniform Trade Secrets Act and the equitable doctrine of unjust enrichment. We affirm the dismissal. All parties appeal the $25,000 in sanctions the court awarded appellant. Appellant asserts he is entitled to heavier sanctions while appellees claim that no sanctions were proper. We remand the issue of sanctions back to the district court for further elaboration of the court's basis for awarding the sanctions.
I.
Wilbert J. Sheets is a 66 year old resident of Gonzales, Louisiana. He retired in 1973 from his job as a machinist at Exxon. His two sons, Wayne and Tommy, opened a motorcycle dealership in 1974 in Gonzales called Cycle Country U.S.A. Cycle Country became a Yamaha dealership in March 1976. Wayne and Tommy were the sole partners in the dealership; Wayne handled sales and Tommy handled maintenance and repairs. Wilbert worked with his sons at Cycle Country, helping with maintenance and acting as a mechanic and troubleshooter. Wilbert, however, was not a salaried employee of Cycle Country and did not receive any compensation for the services he provided the dealership.
In December 1979, Cycle Country received an initial shipment of two model number 125 Yamaha tri-motorcycles. This was the first tri-motorcycle manufactured by Yamaha. Its intended purposes included recreational use in water, mud, dust, snow, and other elements. It was advertised as being an “all-terrain vehicle” suitable for hunting, fishing, farming, professional racing, “swampratting,” and desert and mountain travel. Cycle Country sold one of these tri-motorcycles to a customer and used the other as a demonstrator.
In February 1980, Cycle Country received a shipment of 50 additional model 125’s. Members of the Sheets family bought a number of these tri-motorcycles and raced them. Tommy, Wayne, and Wilbert all personally experienced problems with the engine stalling or drowning on the 125. Cycle Country received similar complaints from other customers to whom the dealership had sold 125’s. Similar complaints were also being received by other Yamaha dealers in the area. Evidently the placement of the air intake system at the back of the machine between the two rear wheels allowed water, dust, and other foreign matter to be drawn into the carburetor, causing the vehicle to stall or drown out. The debris was also causing premature wearing of internal engine parts. Tommy and Wayne asked their father to see if he could fix this problem with the 125’s engine.
In March 1980, Wilbert Sheets modified the engine of Cycle Country’s demonstrator model by running an air hose from the air intake box between the rear wheels to the front of the tri-motorcycle under the seat. The hose acted as a snorkel for the air intake system, bringing in air from the front of the vehicle at a higher level than before. Wilbert plugged up the air intake pipe located within the air intake box. Wilbert also experimented with different sizes of fuel jets to find the size effective with the air box improvements in ensuring the proper air/fuel mixture. Overall, Wilbert Sheets claims these modifications effectively solved the stalling problems and enabled the tri-motorcycle to perform as advertised.
With the exception of the fuel jet modification, the entire device could be seen either by removing the seat of the tri-motor-cycle, which did not require tools, or by turning the machine on its side. Customers of Cycle Country were permitted to drive the modified demonstrator model. Appellant also modified a number of the tri-motorcycles owned by friends and relatives who belonged to the Cycle Country tri-motorcycle racing team. Neither Cycle Country nor appellant, however, sold a trimotorcycle with the air snorkel device, nor did appellant ever sell an air snorkel device. Wilbert Sheets continued to fine tune his modification on the tri-motorcycles owned by family and friends over the next few months.
In mid-March 1980, Wayne Sheets showed and explained the air snorkel device to Bob Aaron, a Yamaha U.S.A. district sales manager, during Aaron’s regular bimonthly visit to Cycle Country. Apparently Wayne Sheets did not show Aaron the entire modification but did tell him that his father had devised a modification to the engine which would solve the problems the machine was experiencing. Appellant claims Aaron returned two weeks later with two Yamaha representatives from Japan who examined and photographed the modified tri-motorcycle. Appellant claims he arrived at Cycle Country just as Aaron and the Yamaha representatives were leaving and remembers one of the representatives holding a camera. Aaron did not make out a dealer report documenting this second visit to Cycle Country, contrary to his usual habit. At trial he denied remembering this second visit and the names of the two Yamaha representatives. Tommy and .Wayne Sheets had been present during this visit and their testimony supported their father’s claims.
Two weeks later, appellant claims Aaron returned to Cycle Country with two more representatives from Yamaha. Only Wayne Sheets was present at the shop during this visit, and he did not recall if anyone had photographed or examined the modified tri-motorcycle during this visit. Again, no dealer report was made of this visit by Aaron.
Aaron visited the shop again in August 1980 and, according to Tommy Sheets, asked Tommy to bring a modified tri-motor-cycle to a Yamaha service seminar in New Orleans later in the month. Tommy complied with this request. This seminar was limited to Yamaha employees and dealers. Wilbert Sheets’ modification evidently was discussed at the seminar as a solution to the shifting and drowning problems the 125 was experiencing.
In April 1981, Tommy and Wayne Sheets sold their interests in Cycle Country, including the modified demonstrator, to a third party, and entered into a release with Yamaha U.S.A. Wilbert Sheets was not a party to this release.
In November 1981, Wilbert Sheets saw a Yamaha advertisement in Outdoor Life magazine, publicizing the company’s new tri-motorcycle model number 175 which contained an air intake device very similar to his modification on the 125. Wilbert Sheets immediately sought legal advice and eventually filed suit in federal district court against Yamaha Motors Corp., U.S.A. on October 5, 1982. His suit claimed damages for the alleged advantages and benefits realized by Yamaha as a result of Yamaha’s alleged misappropriation of his invention and its incorporation by Yamaha into the model 175 tri-motorcycle. His claims were based in part upon the Louisiana Uniform Trade Secrets Act for misappropriation of a trade secret and upon unjust enrichment principles in Louisiana law.
On March 21, 1983, Wilbert Sheets applied for a United States patent on his air intake device. After abandonment of this patent application, Wilbert Sheets filed a ' second patent application on February 19, 1985. His patent counsel was notified on June 11, 1985, by the United States Patent and Trademark Office that most of his claims were unpatentable because of a previous patent issued on January 29, 1985, to Ko Tanaka of Shizuoka, Japan, and assigned to Yamaha Japan.
Trial on the merits of appellant’s suit against Yamaha U.S.A. and Yamaha Japan was held before the district court without a jury on August 25 and 26 and December 29, 1986. Following the presentation of appellant’s case, appellees moved for involuntary dismissal under Fed.R.Civ.P. 41(b). On April 3, 1987, the district court dismissed the entire case under Rule 41(b) after finding that Wilbert Sheets had failed adequately to maintain the secrecy of his invention and thus could not recover under the Trade Secrets Act or for unjust enrichment. The court, however, awarded Wilbert Sheets sanctions under Fed.R.Civ.P. 11 and 37 of $25,000 against Yamaha U.S.A. and Yamaha Japan for failure of the Yamaha firms to carry out pretrial discovery in good faith and for needlessly increasing the costs of the litigation. Sheets v. Yamaha Motors Corp., U.S.A., 657 F.Supp. 319 (E.D.La.1987).
Appellant appeals the district court’s finding that he failed to make reasonable efforts to maintain the secrecy of his invention as required under the Trade Secrets Act and the court’s finding that he had no cause of action for unjust enrichment.
II.
In this diversity jurisdiction lawsuit, we look to the law of the state of Louisiana to determine the substantive rights of the parties under both of appellant’s claims. As to the trade secrets claim, Louisiana has adopted a version of the Uniform Trade Secrets Act, La.Rev.Stat.Ann. § 51:1431 et seq. Under this act, a “trade secret” is defined in § 51:1431(4) as:
information, including a formula, pattern, compilation, program, device, method, technique, or process, that: (a) derives independent economic value, actual or potential, from not being generally known to and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use, and (b) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
Comment (f) under this provision provides:
Reasonable efforts to maintain secrecy have been held to include advising employees of the existence of a trade secret, limiting access to a trade secret on a “need to know basis,” and controlling plant access. On the other hand, public disclosure of information through display, trade journal publications, advertising, or other carelessness can preclude protection.
Comment (f) shows that Louisiana has adopted the concept of “relative secrecy” as opposed to “absolute secrecy” in its trade secrets act. “The efforts required to maintain secrecy are those reasonable under the circumstances, and courts do not require extreme and unduly expensive procedures be taken to protect trade secrets.” Tubular Threading, Inc. v. Scandaliato, 443 So.2d 712, 714 (La.Ct.App.1983). See also E.I. duPont deNemours & Company v. Christopher, 431 F.2d 1012 (5th Cir.1970), cert. denied, 400 U.S. 1024, 91 S.Ct. 581, 27 L.Ed.2d 637 (1971) (explaining relative secrecy under Texas law); Tri-Tron International v. Velto, 525 F.2d 432 (9th Cir.1975) (explaining relative secrecy under California and Montana law); K-2 Ski Company v. Head Ski Co., Inc., 506 F.2d 471 (9th Cir.1974) (Maryland and Washington law).
The district court found that Wilbert Sheets had failed to use reasonable efforts under the circumstances to maintain the secrecy of his modification to the Yamaha tri-motorcycle and thus was not entitled to recover damages for the alleged misappropriation of the modification under the Uniform Trade Secrets Act. The determination of whether relative secrecy exists in a particular case is a question of fact reviewable by this Court under the clearly erroneous standard of review. Tri-Tron International, 525 F.2d at 436; K-2 Ski Company, 506 F.2d at 474.
Upon our review of the record, we must conclude that the district court’s finding that appellant failed to take reasonable efforts under the circumstance to maintain the secrecy of his invention is not clearly erroneous. As the district court noted, appellant allowed one of the modified tri-mo-torcycles to be shown at a Yamaha service seminar in August 1980. He also let Cycle Country, a company in which he had no proprietary interest, use a modified tri-mo-torcycle as a demonstrator, apparently without restriction. Further, he installed his modification on the tri-motorcycles of at least nine other individuals and gave them, at most, only minimal instructions not to reveal the modification to others. These limited attempts at secrecy appear to have had more to do with maintaining the Cycle Country racing team’s competitive edge in racing and less to do with maintaining the secrecy of the modification itself.
Apparently, appellant also allowed several Yamaha representatives to enter Cycle Country and examine and photograph his modification without taking any efforts at maintaining the secrecy of the modification. There had been no need for appellees to resort to subterfuge or other improper means in order to obtain information pertaining to the modification. Hurst v. Hughes Tool Company, 634 F.2d 895, 898 (5th Cir.), cert. denied, 454 U.S. 829, 102 S.Ct. 123, 70 L.Ed.2d 105 (1981). Cf. E.I. duPont deNemours & Company, supra; A.H. Emery Company v. Marcan Products Corporation, 389 F.2d 11 (2nd Cir.), cert. denied, 393 U.S. 835, 89 S.Ct. 109, 21 L.Ed.2d 106 (1968). A disclosure of a trade secret to others who have no obligation of confidentiality extinguishes the property right in the trade secret. Ruckelshaus v. Monsanto Company, 467 U.S. 986, 1002, 104 S.Ct. 2862, 2872, 81 L.Ed.2d 815 (1984). See also Interox v. PPG Industries, Inc., 736 F.2d 194, 202 (5th Cir.1984).
III.
Wilbert Sheets also asserts a cause of action under general equitable principles of unjust enrichment, or an actio de in rem verso, under Louisiana law. Following French jurisprudence, the Louisiana Supreme Court has adopted five prerequisites to this type of action:
(1) [Tjhere must be an enrichment, (2) there must be an impoverishment, (3) there must be a connection between the enrichment and resulting impoverishment, (4) there must be an absence of “justification” or “cause” for the enrichment and impoverishment, and finally (5) the action will only be allowed when there is no other remedy at law, i.e., the action is subsidiary or corrective in nature.
Minyard v. Curtis Products, Inc., 251 La. 624, 205 So.2d 422, 432 (1967). See also Diggs v. Hood, 772 F.2d 190, 193 (5th Cir.1985); Austin v. North American Forest Products, 656 F.2d 1076, 1088 (5th Cir.1981).
The district court gave several reasons for holding that Wilbert Sheets did not have a cause of action under the doctrine of unjust enrichment. We address only one of these rationales, as we find it dispos-itive. The district court was concerned that the application of the unjust enrichment doctrine in this case would contravene the more particularized requirements of the Louisiana Uniform Trade Secrets Act. We share the district court’s concern and hold that the fourth and fifth prerequisites to the application of this equitable doctrine were not met in this case.
Louisiana enacted an express statutory scheme to protect individuals and entities in the position of Wilbert Sheets when it adopted the Uniform Trade Secrets Act. Under Louisiana law, Wilbert Sheets is not entitled to fall back on the equitable doctrine of unjust enrichment after failing to establish a trade secret due to his failure to make reasonable efforts to maintain secrecy. Thus, in a very real sense the enrichment by Yamaha was brought about by Wilbert Sheets’ own failure to maintain the secrecy of his invention.
Louisiana law makes clear that when an adequate remedy at law is available, the court may not resort to principles of equity. Austin v. North American Forest, 656 F.2d at 1089. See La.Civ.Code Ann. art. 21; Minyard, 205 So.2d at 433. An action for unjust enrichment must not be allowed to defeat the purpose of a rule of law directed to the matter at issue. Edmonston v. A-Second Mortgage Co. of Slidell, Inc., 289 So.2d 116, 122 (La.1974). In Austin v. North American Forest, we held that a court applying Louisiana law could not resort to equity even though the remedy at law was barred by prescription. Wilbert Sheets had a remedy under the Trade Secrets Act by which he could have recovered for the alleged misappropriation of his modification to the Yamaha tri-mo-torcycle. He failed to gain the protection of this act by his carelessness. Under Louisiana law he cannot now invoke principles of equity to recover for the benefits he alleges appellees enjoyed at his expense.
IV.
After ordering additional briefing on the issue of sanctions and reconvening trial to hear evidence on this subject, the district court awarded Wilbert Sheets $25,000 in sanctions from appellees. The court found that appellees had “acted both negligently and in bad faith in needlessly increasing the costs of this litigation and in failing to cooperate in the pretrial discovery permissible under the Federal Rules of Civil Procedure.” 657 F.Supp. at 323. Behavior cited by the court as supporting these sanctions included: Yamaha U.S.A.’s failure to waive service of process on behalf of Yamaha Japan and forcing Wilbert Sheets to serve Yamaha Japan under the Hague Convention; appellees’ lack of cooperation in providing documentation of Yamaha representatives’ travel in the United States and in responding to discovery requests relevant to this issue; and appellees’ failure to respond fully and candidly to three sets of interrogatories and requests for production of records from appellant.
We have some doubt as to the propriety of the breadth of the court’s award of sanctions in this case. Our doubts arise primarily from the court’s rather vague references both to the rules under which it was basing its sanctions and the behavior the court was actually sanctioning.
The court made general references to Rule 37 in its opinion regarding the award of sanctions. The court, however, did not specify which section of Rule 37, if any, it was actually invoking to award the sanctions. Specificity is important because sanctions under Rule 37(b)(2) require that the party against whom the sanctions are levied failed to “obey an order to provide or permit discovery.” The court made no reference to any particular order that appel-lees failed to obey. We do not search the record for an order that might possibly support the district court’s $25,000 award under Rule 37(b)(2) because this may not be the portion of the record upon which the court relied. See Fjelstad v. American Honda Motor Co., Inc., 762 F.2d 1334, 1338-9 (9th Cir.1985). Sections (c) and (d) of Rule 37, the only other sections seemingly of some relevance, do not require that the sanctioned party fail to obey a discovery order.
The district court’s primary objection to appellees’ behavior, besides the court’s belief that appellees generally were not cooperating in discovery and were needlessly increasing the cost of the lawsuit, was that Yamaha U.S.A. had answered falsely (in the court’s opinion) as to its knowledge of patent rights its parent company had obtained in an air snorkel device. Because of Yamaha U.S.A.’s misleading responses as to Yamaha Japan’s patent rights, Wilbert Sheets’ attorneys claim that they ran up well over $25,000 in attorney’s fees and expenses in discovering the patent themselves and in attempting to secure a patent on behalf of Wilbert Sheets. Sheets’ attorneys claim these fees and expenses would not have been expended had appellees informed them that Yamaha Japan did have a patent application pending before the U.S. Patent and Trademark Office as early as 1981. There was extensive briefing and testimony on these expenses and the district court’s award of $25,000 in sanctions appears to be based largely on this claim.
Rule 26(g) would appear to be the rule most applicable to the overall award of sanctions in this case. The district court, however, mentioned Rule 26(g) only in passing in its opinion and relied instead on Rule 37 and Rule 11. We acknowledge that Rule 26(g) closely parallels Rule 11 and note that the two rules appear to overlap. Rule 26(g), however, applies exclusively to discovery requests, responses, and objections while Rule 11 has been interpreted by some commentators to apply only to those papers, pleadings, and motions for which other sanction provisions are not applicable. Thomas v. Capital Security Services, Inc., 836 F.2d 866, 870-71 (5th Cir.1988) (en banc); Zaldivar v. City of Los Angeles, 780 F.2d 823, 829-30 (9th Cir.1986); National Association of Radiation Survivors v. Turnage, 115 F.R.D. 543, 555 (N.D.Cal.1987). See also Notes of Advisory Committee on Rules accompanying Rule 11 (“Although the encompassing reference to ‘other papers’ in the new Rule 11 literally includes discovery papers, the certification requirement in that context is governed by proposed new Rule 26(g). Discovery motions, however, fall within the ambit of Rule 11.”)
In summary, we conclude that a remand to the district court is needed in order for that court to make additional findings so as to state more specifically the bases upon which it awarded Wilbert Sheets $25,000 in sanctions against appellees. As the district court’s holding now stands, it is unclear what specific behavior the court was sanctioning and what rules, or provisions within these rules, the court relied upon to award sanctions. Until the district court makes such specific findings and conclusions, we are unable to exercise effectively our appellate review of the court’s action.
AFFIRMED IN PART, REMANDED IN PART.
. Appellant claims to have told these individuals not to make his invention known to others. He claims he felt these people would not divulge his invention because by doing so they would lose their competitive edge in racing. Neither Tommy nor Wayne nor Wilbert, however, placed any restrictions upon the resale of these modified tri-motorcycles. Some of the modified trimotorcycles were in fact resold the following year.
. On April 6, 1984, appellant amended his complaint to add as a defendant Yamaha Motor Company Ltd. (“Yamaha Japan"), a Japanese corporation and the actual manufacturer of the tri-motorcycles. Proper service was not made on Yamaha Japan until July 1985. Yamaha Motors Corp., U.S.A. (“Yamaha U.S.A.”), a California corporation, is a wholly owned subsidiary of Yamaha Japan and is the distributor of Yamaha motorized products for Yamaha Japan in the United States.
. Passing reference should also be made to La. Rev.Stat.Ann. § 51:1437 which sets out the preemptive effect of the Louisiana Uniform Trade Secrets Act on other law. It should be emphasized, however, that we are not deciding this case on this express preemptive effect of the Uniform Trade Secrets Act but instead upon the prerequisites to the application of the doctrine of unjust enrichment under Louisiana law. As a result, we perceive no need to certify the question of preemption by § 51:1437 to the Louisiana Supreme Court as requested by appellant.
. Appellees defend their actions by noting that the discovery requests regarding the existence of the patent were directed to Yamaha U.S.A. prior to Yamaha Japan’s being made a party to the lawsuit and filing its answer. Appellees assert that Yamaha U.S.A.’s denial of the existence of any patent rights was a proper response since the patent was held by Yamaha Japan, the separate parent company of Yamaha U.S.A., and Yamaha U.S.A. had no knowledge of the patent rights held by its parent company.
. We have serious doubts as to whether some of the district court’s other reasons for awarding the sanctions are proper. There appears to be no basis for sanctioning appellees for forcing appellant to execute service of process on Yamaha Japan under the Hague Convention. Yamaha Japan clearly had the right to be served under the proper service procedure. The two corporations appear to have had legitimate business reasons for insisting on this right, including avoidance of judicial piercing of the corporate veil and imposition of liability on one corporation for the acts of the other. There was also no discussion of the expenses incurred by appellant’s counsel due to appellees’ lack of cooperation in providing documentation of appel-lees’ representatives' travel in the United States and in responding to discovery requests relevant to this issue.
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:
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songer_counsel2
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D
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
Richard HAEUBER, Plaintiff, v. CAN-DO, INC., II, et al., Defendants. PROPRIETORS’ INSURANCE COMPANY, Defendant-Third Party Plaintiff-Appellant, v. William F. NOBILE, et al., Third Party Defendants-Appellees.
No. 80-3115.
United States Court of Appeals, Fifth Circuit. Unit A
Jan. 25, 1982.
Rehearing Denied Feb. 19,1982.
Benjamin W. Yancey, David B. Lawton, New Orleans, La., for Proprietors’ Ins. Co.
Leach, Paysse & Baldwin, Michael A. Britt, New Orleans, La., for William F. Nobile.
Before BROWN, WISDOM and RANDALL, Circuit Judges.
Former Fifth Circuit case, Section 9(1) of Public Law 96-452-October 14, 1980.
JOHN R. BROWN, Circuit Judge:
The present appeal arises out of a lawsuit brought by personal' injury claimant Richard Haeuber, a seaman and member of the crew of the M/V ESTELLE VIC, against his employer, who owned the vessel, and several other defendants no longer parties on this appeal. Because the vessel was operating in violation of the requirements of its Coast Guard certificate at the time of the accident, contrary to a warranty in the policy, Proprietors Insurance Company (Proprietors), a third-party defendant, denied coverage to the owner of the vessel. The personal injury claim was settled by stipulation among the parties, and the issues remaining for trial under the stipulation were (i) whether Proprietors or the vessel owner’s broker was liable to the vessel owner, and (ii) whether the vessel owner’s broker had a claim against Proprietors’ broker. The District Court held Proprietors liable on the policy and dismissed the third-party claim against Proprietor’s broker. We reverse, and remand with respect to the third-party claim brought by the vessel owner’s broker.
Parties to the Dispute
The central parties to this appeal are (i) Can-Do, Inc., II (Can-Do), the owner and operator of the M/V ESTELLE VIC, Haeuber’s employer, and the party to whom the insurance policy was issued; (ii) Financial Guardian General Agency, Inc. (Financial), the Louisiana broker acting on behalf of Can-Do to insure the vessel; (iii) Beacon Insurances International (Beacon), the broker acting as intermediary between Financial and Proprietors; and (iv) Proprietors, the insurance company that issued the policy (through its general agency and marine underwriting arm, Unimar, not a party to this lawsuit). A marine protection and indemnity policy was issued by Proprietors to Can-Do, and included a warranty (see note 1) specifically requiring compliance with the vessel’s Coast Guard Certificate. When the personal injury claim was brought by Haeuber against Can-Do, Proprietors denied coverage because the vessel was operating in violation of the Certificate and the policy warranty. Can-Do subsequently brought a cross-claim against Proprietors alleging failure to provide coverage. Proprietors therefore filed a third-party complaint against Financial, and Can-Do brought a cross-claim against Financial as well. Following a stipulation agreement, Proprietors settled the claim by Haeuber, released Can-Do, and pursued the claim against Financial. Financial filed a third-party claim against Beacon, holding Beacon responsible for the misunderstanding.
The Great Misunderstanding
In December, 1976, Can-Do asked Financial to “renew” its policy on the M/V ESTELLE VIC. Can-Do specifically requested coverage on the vessel for operation with a crew of only two. Significantly, the U. S. Coast Guard’s manning and licensing requirements called for a minimum two-man crew plus a licensed captain.
Financial then contacted Beacon, seeking a premium quotation for a crew of two on the vessel. At that time, Financial requested that certain waivers and other unspecified provisions should be similar to Proprietors’ Policy PIC 17-748, a policy, on another vessel, that did not contain a warranty that Coast Guard requirements would be followed. On December 10,1976, Beacon sent Financial a quotation for coverage on the vessel with a crew of two. The rates quoted were approved by Unimar, Proprietors’ underwriting arm.
After receiving the premium quotation, Can-Do authorized Beacon to order a policy that would include some provisions from the expiring policy on the vessel, which contained a Coast Guard warranty, and others from Proprietors’ policy 17-748, which did not contain such a warranty. The references to these two policies were, in retrospect, confusing to the parties involved. This confusion is more clearly illustrated as our chronology continues.
After receiving the order from Financial, Beacon sent a message to Proprietors advising the underwriter that a policy should be issued on December 30, 1976, covering the vessel with a crew of two. As pointed out in the District Court’s opinion, Beacon omitted any reference in its order to Proprietors’ policy 17-748 (which did not contain a Coast Guard warranty), but simply asked for a “renewal” of the policy then in effect (which did contain a Coast Guard warranty). Proprietors accepted the risk, and Beacon sent Financial the policy numbers on December 27,1976. Financial then contacted Can-Do to advise that coverage had been placed on the vessel effective December 30, 1976. Unknown to Can-Do, the policy that had been prepared, based on the order submitted by Beacon, included the Coast Guard warranty as well as the condition that additional crewmen other than two were to be reported to Proprietors.
On January 5, 1977, before receiving the actual policy from Beacon, Financial drafted a “Certificate of Insurance” and forwarded it to Can-Do. This certificate contained the same Coast Guard warranty as the Proprietors’ policy.
Because Can-Do did not want to warrant compliance with the Coast Guard’s manning and licensing requirements, it sent a letter to Financial asking for deletion of the warranty. On January 17, 1977, Financial mailed an “endorsement” that represented to Can-Do that the warranty had been removed.
Next, Financial finally received the policy issued by Proprietors, and Financial notified Beacon that the Coast Guard warranty should be deleted and that another insured party should be added to the policy. Beacon telexed its reply, agreeing to the additional assured but stating “advise reason to delete CG warranty.” The policy itself was placed in Financial’s file and never delivered to Can-Do. No further communications took place between Financial and Beacon, nor did Beacon pass the deletion request to Proprietors.
The accident occurred ten months later, with Can-Do believing that its insurance policy provided coverage for the vessel even when operated in non-compliance with its Coast Guard Certificate. In contrast, Proprietors assumed that the policy containing the warranty had been delivered to, and accepted by, Can-Do.
Proprietors’ unwillingness to pay for the personal injury claim was based upon Can-Do’s operation of the vessel in violation of the warranty. When Financial was brought into the suit, by Proprietors’ third-party complaint as well as Can-Do’s cross-claim, it pointed out, in a third-party complaint against Beacon, that Beacon provided a premium quotation for operation of a vessel with a crew of two, thus it now argues that it reasonably believed the Coast Guard warranty would be routinely deleted to conform to the premium agreement. Moreover, the argument continues, Beacon did not forward the deletion request to Proprietors for its consideration, thus Financial holds Beacon responsible for any misunderstanding regarding Proprietors’ coverage.
The District Court held that Financial used reasonable diligence in attempting to procure insurance for Can-Do, and that the actual presence of the warranty in the policy was caused by Beacon’s failures both to order the correct coverage and to notify Proprietors to delete the warranty. Because judgment was entered for Financial and against Proprietors, Financial’s third-party demand against Beacon was rendered moot.
District Court Rationale
The District Court, in a carefully written opinion, recognized that Financial had no authority to bind Beacon to the coverage of the risk, and that Beacon likewise could not bind Proprietors. In attempting to discover how the misunderstanding arose in this controversy, the court found that Financial’s initial request to Beacon for coverage on the ESTELLE VIC made a reference to Proprietors’ older policy (on another vessel), without a warranty, which suggested that the Coast Guard warranty was not to be included in Can-Do’s new policy. This, the District Court found, was consistent with Financial’s request for coverage for a crew of two. Beacon did not transmit this specific order to Proprietors, and thus the policy prepared included a Coast Guard warranty.
At this point, it seems plausible for Financial to argue on appeal that it did not expect the policy as issued to include a Coast Guard warranty. However, as the District Court also found, Financial’s certificate of insurance, sent to Can-Do, purported to represent the coverage it had procured from Proprietors and included a Coast Guard warranty. When Can-Do notified Financial to delete the warranty, an opportunity arose to clear up this misunderstanding. Financial notified Beacon that the warranty should be deleted, but, the District Court found, Beacon “did not pass the deletion request on to [Proprietors] for its consideration, as was its usual practice when policy modifications were requested, or advise [Financial] that his request would be granted or denied.” Beacon’s request, sent to Financial, “to advise reason to delete C.G. warranty” was viewed by the court as a failure to follow up on Financial’s deletion request. On this basis, the District Court found that the warranty remained in the policy “not because of a lack of reasonable diligence amounting to negligence on [Financial’s] part, but because Beacon did not order the policy [Financial] requested, and because Beacon failed to consult [Proprietors] when notified ... of its error.” We do not disagree with the suggestion that Beacon may be at fault, but we must disagree with the conclusion that Financial exercised reasonable diligence and that Proprietors is liable on the claim.
The Stipulation: The Origin of this Appeal
The stipulation entered into between Richard Haeuber and Proprietors, Financial, Beacon, Can-Do, and several other parties not relevant in the present dispute, recited that judgment in the amount of $95,000 (with 7% interest) would be entered in Haeuber’s favor when the District Court in the present action enters its final judgment in the dispute between Proprietors, Financial, and Beacon. It was agreed that Can-Do would satisfy the judgment, but in fact Proprietors, without conceding liability, guaranteed to Can-Do the ultimate reimbursement of the $95,000 judgment. Moreover, the judgment has already been satisfied by a loan receipt agreement whereby Proprietors transferred the funds to Can-Do. The stipulation provided that, in the event an appeal is taken, the consent judgment against Proprietors would not be entered until a final decision regarding the liabilities in the dispute between Proprietors, Financial, and Beacon. Next, the stipulation stated that Can-Do releases Proprietors, Financial, and Beacon from any further claims of any sort other than those arising out of the stipulation document. But this means that Can-Do had, and was reserving, the right to assert claims against Proprietors. Finally, Financial agreed that it would not urge in defense of any claim asserted against it by Proprietors the failure of Proprietors to defend against the claim of Can-Do under the policy.
Because of Proprietors’ payment of both the $95,000 settlement and the $9,636.80 paid in connection with Haeuber’s claim immediately after the accident, Proprietors is subrogated to whatever claims Can-Do might assert against Financial and Beacon. Although Can-Do has not yet suffered a financial loss, because Proprietors already paid the $9,636 and has guaranteed payment on the $95,000, Can-Do is exposed to a claim that it has an implied duty to repay Proprietors if payment was not received by the terms of the policy. With respect to the payment of the $9,636, Can-Do brought a cross-claim against Financial for its negligence in failing to procure proper insurance. Proprietors certainly succeeds to Can-Do’s rights of recovery under this claim. Moreover, under the very terms of the stipulation, whereby Proprietors guarantees to ultimately pay the $95,000, that guarantee is conditioned upon a final decision by the courts fixing ultimate liability as between Proprietors, Financial and Beacon. This has not occurred and cannot until the final decision has been reached as between these parties. Thus Can-Do has not been completely released from all liability. The rights of recovery and liability of Can-Do have been preserved by the stipulation, and these are the rights and liabilities to which Proprietors succeeds.
Financial’s Diligence as a Broker
The primary issue on this appeal is whether Financial was reasonably diligent as a broker in its failed attempt to obtain the coverage which Can-Do requested. We think not. It was Financial that, it might be said, held all the cards throughout the misunderstanding leading up to Proprietors’ denial of coverage. Can-Do specifically requested that Financial obtain coverage for the ESTELLE VIC in December of 1976, and within days Financial teletyped Beacon seeking premium quotations. Rates were quoted in a two-man crew, and after Can-Do’s approval, Financial teletyped a message to Beacon to bind the coverage at the rates quoted. We do not find it necessary or relevant to determine whether, at this point, Financial impliedly requested a policy without a Coast Guard warranty. Nor is it significant whether Beacon understood that such a warranty was to be included in the policy. Regardless of any misunderstandings in these preliminary negotiations, Beacon telexed Proprietors’ agent to bind the coverage which included a Coast Guard warranty. Beacon notified Financial that the risk was bound, and Financial issued a certificate confirming that coverage had been accepted by Proprietors. This certificate, as stated above, included a Coast Guard warranty, although Financial now claims that the inclusion was a mistake.
When Can-Do requested that Financial have the warranty deleted, Financial boldly issued an endorsement to Can-Do that represented, albeit incorrectly, that the warranty had been removed from the policy. When the policy was received by Financial containing the warranty, it notified Beacon by letter that the warranty should be deleted, but Beacon replied “advise reason to delete C.G. warranty,” and this request was never answered, nor was it communicated to Can-Do.
Financial urges that although it retained the policy in its files, it assumed, presumably without an examination of the policy, that the request for deletion of the warranty had been submitted to Proprietors and was acceptable. Financial did not request that a new policy or endorsement be issued, and it continued to collect the premium from Can-Do and forward it to Beacon. Throughout the ten months prior to the accident, Financial knew that Can-Do wanted the warranty removed, that the written policy contained the warranty, that Beacon inquired as to why the warranty should be removed, and that no change in the policy had been issued by Proprietors by indorsement or otherwise.
On the basis of the above facts, the District Court concluded that Proprietors, either in its own right or as subrogee of Can-Do, did not establish Financial’s negligence in failing to use reasonable diligence. We disagree, and find that Financial did not act as a reasonably diligent broker for Can-Do.
In Karam v. St. Paul Fire & Marine Insurance Co., 281 So.2d 728 (La.1973), the Louisiana Supreme Court held that:
An insurance agent who undertakes to procure insurance for another owes an obligation to his client to use reasonable diligence in attempting to place the insurance requested and to notify the client promptly if he has failed to obtain the requested insurance. The client may recover from the agent the loss he sustains as a result of the agent’s failure to procure the desired coverage if the actions of the agent warranted an assumption by the client that he was properly insured in the amount of the desired coverage, (citations omitted)
Id. at 730-31. In Boothe v. American Assurance Co., 327 So.2d 477 (La.App.) writ denied, 330 So.2d 315 (1976), the court held that:
Where an insurance agent was negligent in failing to inquire why no response had been received in connection with an application for a policy for over three months, the agent was liable for losses sustained by the party seeking to be insured.
Id. at 482.
Financial was the only party during the ten months prior to the accident that knew that the coverage it had obtained for Can-Do was materially different from the coverage requested by or represented to Can-Do. Contrary to the District Court’s finding of due diligence, Financial’s duties were not exhausted by merely requesting that the warranty be deleted. The duty of a broker is to obtain, not merely request, the coverage needed, and if it is unavailable, to notify the client. It bears reiteration that we are not concerned on this appeal with whatever negligence, if any, can be established on the part of Beacon, because this issue was never reached by the District Court. We are not blind to the entire spectrum of parties involved in these misunderstandings, but we must on this appeal isolate Financial’s actions and consider whether the lack of due diligence of a broker was established by Proprietors. Financial’s responsibility was heightened by its holding the policy in its files, thus making it impossible for Can-Do to realize that its request resulted in no change in the insurance policy. Significantly, when Financial made its request to have the warranty deleted, it also requested that an additional insured be named. Beacon’s response affirmatively accepted the additional insured, but questioned the deletion of the warranty. Not only did Financial fail to notify Can-Do of the problem that obviously had arisen, but it issued an “endorsement” reassuring Can-Do that its request had been carried out.
Conclusion
The above facts are sufficient to establish that Financial, under Louisiana law, did-not exercise the due diligence of a professional broker. We need not reach the issues of alleged concealment of material facts by Financial or the alleged violation of a statutory duty to deliver a policy to the insured. We find that Financial’s actions were in no way consistent with the diligence and professionality of a reasonable broker.
In view of the above findings, we (i) reverse the holding that Proprietors failed to establish breach of duty on the part of Financial, (ii) reverse the dismissal of the third-party claim by Financial against Beacon as moot, and (iii) remand for a determination of liability as between Financial and Beacon.
REVERSED AND REMANDED.
. The warranty read as follows:
WARRANTED: COAST GUARD REGULATIONS COMPLIED WITH AND NAVIGATION LIMITS, NUMBER AND CLASSIFICATION OF CREW AND OPERATING REQUIREMENT SHALL BE AS SET FORTH IN THE U. S. COAST GUARD CERTIFICATE ISSUED TO THE VESSEL(S) INSURED HEREUNDER.
. Article III. of the stipulation states:
Proprietors ... does not concede liability to Can-Do .. . under its policy of insurance ... but, solely for the purpose of settling the claims made by plaintiff and Can-Do ... in this suit, and compromising and composing all its disputes with it, and as an inducement for [Can-Do’s] participating in the present stipulation, Proprietors hereby guarantees to [Can-Do] the ultimate reimbursement of the judgment set forth in Article I hereof [$95,-000], Proprietors agrees that this guarantee may be made the subject of a consent judgment against it, Proprietors, for the amount paid to plaintiff, Richard Haeuber, ... but this consent judgment against Proprietors shall not be entered until a final decision by the court or by the appellate court, ... fixing ultimate liability in the dispute as between Proprietors, Financial, and Beacon. . .. [Can-Do] agrees to render all reasonable assistance, at Proprietors’ expense, to effect recovery from any other party who may have been cast as between Proprietors, Financial, and Beacon....
. Article VI. of the stipulation states:
In consideration of the various undertakings in this agreement, [Can-Do] hereby waives, and finally releases Proprietors, Financial, and Beacon from any further claims of any sort whatsoever, other than those specifically arising under this document, connected with the injury to Richard Haeuber which is the subject of this litigation.
. Financial claims that it assumed the warranty had been deleted by Proprietors, brushing aside the inquiry by Beacon (as to the reason for deletion of warranty) as mere curiosity and not part of the negotiation.
. In making this decision, we have considered Financial’s great emphasis on the negotiations leading up to the issuance of the policy, particularly the fact that the premium rate was based upon a crew of two operating the ESTELLE VIC. Briefly, they argue that because the Coast Guard requires that a crew of at least three must operate such a vessel, the Coast Guard warranty was inconsistent with the parties’ original insurance agreement. Moreover, the initial request for coverage contained provisions from an earlier policy issued by Proprietors on another vessel that did not contain a warranty. This controversy, it is submitted, should be considered in light of these “total circumstances” surrounding the request for insurance protection. We find that the negotiations and premium quotations regarding the two-man vessel are neither sufficient to modify the express warranty that was never deleted nor sufficient to give notice to Proprietors, or its agent, Beacon, that the vessels would be operated in violation of Coast Guard regulations. Significantly, although an insurance policy is subject to reformation on the basis of mutual error or mistake, this theory was never pleaded and the facts reveal that Proprietors never intended to issue a policy without the warranty. See Stacy v. Petty, 362 So.2d 810, 814-15 (La.App.1978).
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_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
EDDY et al. v. PRUDENCE BONDS CORPORATION (New Company) et al.
No. 10, Docket 20589.
Circuit Court of Appeals, Second Circuit.
Dec. 8, 1947.
Writ of Certiorari Denied March 8, 1948.
See 68 S.Ct. 664.
Samuel Silbiger, of Brooklyn, N. Y., for George Eddy et al.
Edward C. Wallace and Weil, Gotshal & Manges, all of New York City, for James L. White et al.
Charles M. McCarty, of New York City, for Prudence Bonds Corporation (New Company).
George C. Wildermuth, of Brooklyn, N. Y., for the trustee of debtor.
J. M. Richardson Lyeth, of New York City, for Manhattan Bank.
Irving L. Schanzer, for Prudence Realization Corporation.
Maclay, Lyeth & Williams, of New York City (Robert L. Fay, of New York City, of counsel), for appellants President and Directors of Manhattan Co.
Before L. HAND, SWAN, and CHASE, Circuit Judges.
L. HAND, Circuit Judge.
These appeals are from four orders in bankruptcy in the reorganization of Pru« dence Bonds Corporation under § 77B of the Bankruptcy Act, 11 U.S.C.A. .§ 207, a proceeding which has repeatedly come before this court. Three of the orders directed the distribution of the collateral, which secured the Fifth, Sixth and Ninth Series of bonds issued by the Debtor, and the fourth order concerned the collateral of all the series but the Fifteenth. We may confine ourselves to the order which directed distribution of the collateral of the Fifth Series; and, indeed even more narrowly, to whether the Publicly Held Bonds of that series were entitled to interest in full up to the time of payment, as against the bonds in the hands of the Prudence Realization Corporation (the successor of the guarantor of all the bonds), as against any claim of the former trustee (the Manhattan Bank) or as against the New Company itself. As a result of our decision in President and Directors of Manhattan Company v. Kelby, the Bank, as trustee for the Fifth Series, deposited with the substituted trustee for all the series over $1,500,000 which, with the remaining collateral, has created a fund large enough to pay the principal of the Publicly Held Bonds with interest in full up to August 1, 1945, and to leave a small surplus. The proper distribution of this fund depends upon the interpretation of the documents by which the Fifth Series was reorganized ; and it will be enough to make our discussion intelligible, if in what follows we quote the relevant passages from these. However, it is desirable as a preliminary to state the positions of the parties and the conclusions of the special master which the judge affirmed. The Publicly Held Bonds argue that, although their right to interest as against the New Company was reduced to the income from the collateral, as lienors upon that collateral they retained unimpaired their claim to full interest. The Guarantor argues that, as lienors the Publicly Held Bonds were as much limited to the income from the collateral as they were as obligees of the New Company. The master held with the Guarantor, and there arose from this holding a number of other issues which become moot, when, as we are doing, we sustain the position of the Publicly Held Bonds.
By virtue of subdivision h of § 77B the order of confirmation discharged “the debtor from its debts and liabilities * * * except as provided in the plan or as may be reserved as aforesaid”; and it follows that no obligations remained except such as the New Company assumed. To learn what these were, we need look only at the Supplemental Trust Agreement, in which the New Company promised to pay interest only so far as the income of the collateral permitted, and the principal when it became due; and, in further confirmation of this, § 8 of Article II specifically exonerated the obligor from1 all deficiencies in interest which the income should not discharge. None of these clauses affected to deal with the claims of any of the bondholders as lienors upon the collateral; and a dispute had long since arisen between them and the Guarantor as to their relative rights as such. Section 11 of the original plan declared that the court should decide this dispute and went on to say that, if the Publicly Held Bonds were awarded priority, the Guarantor’s Bonds-should not “be entitled to receive any distributions on account of principal until all of the Publicly Held Bonds have been fully paid, redeemed, purchased or retired.” On July 21, 1937, Judge Inch decided that the Guarantor’s Bonds were “not entitled to-share in the collateral * * * on a parity” with the Publicly Held Bonds; that the Guarantor’s Bonds were “not enforcible obligations either as to principal or interest against their respective trust funds * * *, until” the Publicly Held Bonds-should “have been paid or provided for in full, both as to principal and interest heretofore accrued or hereafter accruing”; and that they should be so entitled “if and when and only after” the Publicly Held Bonds should “have been paid or provided for in full, both as to principal and interest.” The Guarantor appealed from this-order, and the Amended Plan must have been drafted before the appeal was disposed of, for it incorporated in haec verba § 11 of the original Plan. The appeal was-dismissed on January 7, 1938, by virtue of a settlement which accepted the order of July 21, 1937, so far as it fixed the terms of the subordination; and the Amended Plan was confirmed on January 18, 1938, still without any change in § 11. The Supplemental Trust Agreement was drawn up thereafter and was executed as of March 1, 1938, though it was not approved until April 27, 1938. Two passages in Article II dealt with the subordination of the Guarantor’s Bonds: § 8 declared at its close that they should “not be entitled to share in the Collateral until all other Bonds have been paid or provided for in full according to their tenor”; and § 10, that they should not “participate in proceeds of the Collateral * * * until the publicly owned or held Bonds have been fully paid, purchased or retired by the Corporation.” This last language also appeared in an “allonge,” affixed to the Guarantor’s Bonds. All this had taken place before anyone knew, or at least before any of the bondholders knew, anything about the conduct of the trustee of the collateral — the Manhattan Bank— whose accounts were not filed until the summer or autumn of 1938. Then for the first time it appeared that it had been guilty of breaches of trust for which we finally fixed its liability on February 2, 1945, six years later. The recoveries so obtained are to be treated as restorations to the trust fund.
The order of July 21, 1937, having divided the bondholders into two groups, these were in the same relative position as though they had been secured by separate mortgages; and it would have been illegal to deny to the senior group its priority in interest, as much as it would have been to deny it its priority in principal. If this proceeding had been a ■“straight bankruptcy,” the preferred group would, moreover, have been entitled to full interest until payment, provided the collateral was large enough. A pledgee acquires an interest in the pledge, which is not affected by the bankruptcy, for bankruptcy is no more than a means of dis-
tributing the debtor’s general assets ratably. The right which he acquires is intended to be security for his claim in full, and that includes interest till payment. In Ticonic National Bank v. Sprague, 303 U.S. 406, 58 S.Ct. 612, 82 L.Ed. 926, the court regarded it as a corollary of this general principle that the priority of creditors, preferred in the liquidation of a national bank, should include interest till payment; and, if there is a difference in the case at bar it must be because § 77B changed the law in the case of corporate reorganizations by limiting the interest on secured claims to the date when the plan goes into effect. There was nothing in § 77B(b) (5) — the only relevant provision — which suggests such a change. It is true that subdivision (d) of § 77B(b) (5), among the methods by which the claims of all objecting creditors might be “dealt with” included such “as will in the opirfion of the judge, under and consistent with the circumstances of the particular case, equitably and fairly provide such protection”; and this “protection” the act had just defined as “adequate protection for the realization by them of the value of their interests, claims, or liens.” That did permit the plan to “deal with” the claims of secured creditors by giving them new interests in the corporate property instead of paying them in cash; but it did .not affect their right to have the substituted interests computed upon the basis of the “value” of the interests — the liens — cancelled. Since the liens included interest to the date of payment, the substitute, to be lawful at all, had to include interest to the same date. Indeed, in the case of Chapter X, 11 U.S. C.A. § 501 et seq., — which in this regard is substantially identical with § 77B(b) (5), (d) — the Supreme Court recognized as much in its discussion in Vanston Bondholders Protective Committee v. Green. Hence it would have been illegal to deny • to the Publicly Held Bonds interest in cash or in some equivalent to the date of the payment of the principal, had the Plan or the Agreement so provided.
Perhaps, since the question does not seem to have been raised when the Amended Plan was confirmed and the Agreement was approved, it would be now too late to upset them, if, as matter of interpretation they plainly intended this unlawful result, although that is not too clear in the case of the Agreement. Nevertheless, in the proper interpretation of these instruments, this consideration should weigh heavily in accordance with the well established canon that, when there is a choice, a court will prefer that construction which is lawful.
Before resorting to the literal meaning of the words, it will be well also to consider whether there could have been a purpose in limiting the personal obligations of the New Company, and at the same time allowing full interest to the Publicly Held Bonds as lienors upon the collateral. We think that there may have been such a purpose. One of the chief aims of the reorganization, particularly in creating the New Company, was to get time to nurse along the collateral which it was hoped might recover part, perhaps much, of its original value. It was essential to this that none of the bondholders should be able to declare a default meanwhile, and that they must be content with whatever income might be realized. This the limitation of the New Company’s liability secured. It may be retorted that, although this might have accounted for the suspension of the right to interest until the due date of the bonds, it does not explain why all deficiencies in interest then existing, should be cancelled, as § 8 of Article II of the Agreement declared. But there was a possible reason for that as well. The due date of each series was 1945, but in each a majority of the Publicly Held Bonds, if they wished, might extend the maturity to 1950; and it was possible that some of the series might do so, and some might not. If the New Company were to be liable for any deficiency in interest upon the Publicly Held Bonds in a series which became due in 1945, the bondholders in that series would be able to take judgment and execution against it, and that would, or at least it might, put an end to any further efforts to conserve the collateral of those series which were to last five years longer. Moreover, if we assume that, not only as against the New Company, but as against the collateral of each series, the bonds were to become income bonds, a very unequal distribution becomes possible. It would by no means follow that, because the income from the collateral in one series had not been enough to pay the interest in full, the collateral itself would not show a surplus; indeed that is exactly what has happened in the case of the Fifth and Ninth Series. Yet, if the New. Company’s immunity from liability for all deficiencies in interest, applies as well to claims against, the collateral some of the res is released from the trust and turned over to the New Company. Quite aside from any question of its legality, this is mere spoliation of the beneficiaries of the trust, the Publicly Held Bonds; and we should not ascribe such an intent to the Plan unless the words allow us no escape.
After these preliminary considerations we must consider the words themselves for they are always the most important evidence of the parties’ intention. The limitation of the New Company’s obligation as to interest was indeed unconditional: the bonds were “to bear interest * * * only to the extent that the annual collections of Net Income * * * received from the Collateral * * * will suffice.” However, that did not touch the priority of the bondholders as lienors; and, as we have seen, § 11 dealt with that by declaring that the Guarantor’s Bonds were not to “be entitled to receive any distributions on account of principal,” until the Publicly Held Bonds had been “fully paid.” That phrase was at best ambiguous ; and we can see no a priori reason for incorporating into it by reference the limitation of liability for interest which had been granted to the New Company. -Indeed,, “fully paid” would normally include payment of all interest. So much then for the words of the Plan itself. At the end of § 8 of Article II of the Agreement the words were that the Guarantor’s Bonds were not to “be entitled to share in the Collateral” until all the Publicly Held Bonds had been “paid or provided for in full according to their tenor.” That too was at best equivocal; one is reminded of the ancient phrase, “secundum tenorem,” which was usually employed to mean that the letter of the instrument itself should be followed. It is only when we come to § 10 of Article II that any difficulties arise; and it must be owned that the language there looks the other way. That section declared that upon none of the Guarantor’s Bonds shall “any payments of principal or interest be payable” until the Publicly Held Bonds shall “have been fully paid, purchased or retired by the Corporation”: i. e., the New Company. Read literally, it is hard to resist the construction that, after the New Company had discharged its individual promises, the Guarantor’s Bonds were to begin to take. Must we so read the language?
The order of July 21, 1937, was of very different import; it allowed nothing to the Guarantor’s Bonds until the Publicly Held Bonds had been “paid or provided for in full both as to principal and interest heretofore accrued or hereafter accruing.” That language clearly meant interest in full, for the original plan had already limited the liability of the Debtor to income and it would be absurd to read such explicit language as intended merely to repeat the limitation; the contrast in locution cannot be disregarded. Conceivably an argument could have been made that by the time the Amended Plan was drafted the purpose had changed, even though § 11 remained as it was; but this the chronology forbids. The Guarantor appealed from the order, and it was not until January 8, 1938 — which was after the Amended Plan had been drafted in its final form — that the appeal was settled; and the settlement explicitly accepted the terms of the order, so far as it defined priority. Even though we were to suppose that the language of § 11 standing alone would have left the matter open, this sequence of events shows that they must have been used eodem intuitu as in the order: that is, that the Plan exactly incorporated the order pro tanto. Up to that time anyway, the lien of the Publicly Held Bonds to the collateral was unabated.
As we have conceded, there is ground for saying that § 10 of Article II of the Agreement, read by itself, changed the Plan in this regard; but we think that the following is an inescapable answer to that position. After the Agreement had been drafted, it was approved without giving the Publicly Held Bonds any opportunity to withdraw from the reorganization. In so proceeding the judge relied upon the following language “of subdivision f of § 77B: “Before or after a plan is confirmed, changes and modifications * * * may be made with the approval of the judge after hearing upon notice * * * subject to the right of any creditor or stockholder who shall previously have accepted the plan to withdraw his acceptance * * * if, in the opinion of the judge, the change or modification will be materially adverse to the interest of such creditor or stockholder * * *” He approved the Agreement because he held that the changes from the Amended Plan were not “materially adverse to the interest” of the Publicly Held Bonds; and so they were not, if the priority of those bonds as beneficiaries of the trust still included the right to recover full interest. On the other hand, if § 10 took away that right, they were not only materially prejudiced, but very gravely prejudiced, and the order of approval was illegal, for the judge’s discretion was not controlling. Indeed, if the Agreement did make that change, we should be disposed to hold that the order approving it was open to collateral attack, unlike the order confirming the Amended Plan. We say this because the right of a creditor to withdraw when the change is “materially adverse,” seems to have been made a condition upon the court’s power to approve the change at all. That is very-different from countenancing and enforcing a plan which contains illegal stipulations. Be that as it may, here the judge held positively that no part of the Agreement was “materially adverse” to any rights which the Amended Plan had given. That interpretation may have been right, or it may have been wrong, qua interpretation; it makes no difference, for it was a deliberate ruling that any changes were not to be deemed “materially adverse” to rights secured by the Amended Plan; and that reading is authoritative and controlling. Section 10 of Article II of the Agreement must therefore accord with § 11 of the Amended Plan; and § 11 of the Amended Plan incorporated the order of July 21, 1937.
Thus it appears that all relevant considerations conspire to demand that interpretation which the Publicly Held Bonds assert: i. e., the antecedent probabilities; the protection required for senior lienors; and the construction authoritatively placed upon the language used by the judge who authorized it. It is true that the special master in his findings of fact construed the Agreement otherwise; moreover, the findings in which he states this construction all begin with the words: “It was the intent of the parties and the fair intent and meaning of the Supplemental Trust Agreement.” But such findings have not the presumptive validity which Rule 53(e) (2), Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, gives to a master’s findings of fact. It is not necessary to analyze the mental process by which a court imposes legal consequences upon verbal utterances; possibly, it is proper to call the result a “finding of fact.” It is enough here, that, whatever the right description, such a finding is assailable as an ordinary finding of fact is not; for appellate courts have untrammelled power to interpret written documents.
As we said at the outset, the conclusion we have reached disposes of all the issues raised upon the appeal. The master found that, as of August 1, 1945, the deficiency of interest due upon the Publicly Held Bonds of the Fifth Series was $411,783.18, and that the principal due was $1,077,450, making a total of $1,489,233.18. He also found that the value of the collateral — including the amount restored by the trustee — was $1,506,513.65, so that only a small surplus of about $17,000 was left to pay the principal of the Guarantor’s Bonds: $67,-200. Even though the income for the two years which have followed has been enough to pay the interest in full, there will be no surplus for anyone but the Guarantor. The figures for the Ninth Series show an even greater deficiency, for there is no possibility of any surplus whatever, not even for the Guarantor.
The order will be reversed, and the cause will be remanded for further proceedings not inconsistent with the foregoing.
2 Cir., 147 F.2d 465
§ 1(a), Article V.
§ 1(c), Article V.
Consolidated Rock Products Co. v. DuBois, 312 U.S. 510, 527, 528, 61 S.Ct. 675, 85 L.Ed. 982; Group of Institutional Investors v. Chicago, Milwaukee, St. P. & P. R. Co., 318 U.S. 523, 546, 63 S.Ct. 727, 87 L.Ed. 959.
Coder v. Arts, 8 Cir., 152 F. 943, 949, 950, 15 L.R.A.,N.S., 372, affirmed 213 U.S. 223, 245, 29 S.Ct. 436, 53 L.Ed. 772, 16 Ann.Cas. 1008.
7 Viner’s Abridgement, 110.
207(b) (5), Title 11 U.S.O.A.
R. F. C. v. Denver & R. G. W. R. Co., 328 U.S. 495, 517, 66 S.Ct. 1282, 90 L.Ed. 1400.
§ 216(7), § 616(7), Title 11 U.S.C.A.
329 U.S. 156, 164, 67 S.Ct. 237.
Hobbs v. McLean, 117 U.S. 567, 576, 6 S.Ct. 870, 29 L.Ed. 940; Great Northern Ry. Co. v. Delmar Co., 283 U.S. 686, 691, 51 S.Ct. 579, 75 L.Ed. 1349; In re John B. Rose Co., 2 Cir., 275 F. 409, 415; Behre v. Anchor Ins. Co., 2 Cir., 15 F.2d 380, 383.
Downtown Investment Ass’n v. Boston Metropolitan Buildings, 1 Cir., 81 F.2d 314, 320.
Road Improvement Dist. v. Roach, 8 Cir., 18 F.2d 755, 759; Sun Indemnity Co. v. American University, 58 App.D.C. 184, 26 F.2d 556, 557.
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_appstate
|
99
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "state governments, their agencies, and officials". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Kent EARNHARDT, et al., Plaintiffs, Appellees, v. The COMMONWEALTH OF PUERTO RICO, et al., Defendants, Appellants. Kent EARNHARDT, Plaintiff, Appellant, v. The COMMONWEALTH OF PUERTO RICO, et al., Defendants, Appellees.
Nos. 84-1055, 84-1105.
United States Court of Appeals, First Circuit.
Argued June 7, 1984.
Decided Sept. 17, 1984.
Carlos V. Garcia Gutierrez, Santurce, P.R., for Kent Earnhardt, et al.
Gerardo Mariani, Asst. Sol. Gen., San Juan, P.R., with whom Miguel A. Pagan, Deputy Sol. Gen., Dept, of Justice, San Juan, P.R., was on brief, for The Commonwealth of Puerto Rico, et al.
Before BOWNES and BREYER, Circuit Judges, and DOYLE, Senior District Judge.
Of the Western District of Wisconsin, sitting by designation.
BOWNES, Circuit Judge.
In this Title VII discriminatory discharge case, based on 42 U.S.C. § 2000e, plaintiff, Dr. Kent Earnhardt (Earnhardt), convinced the district court that his employment with the Commonwealth of Puerto Rico was terminated because of invidious national origin discrimination and the court awarded him his lost salary as damages. Defendant Commonwealth of Puerto Rico (Commonwealth) appeals, maintaining that the district court, 582 F.Supp. 25, erred in concluding the plaintiff was fired as a result of discriminatory animus. Plaintiff Earnhardt cross-appeals the denial of a Federal Rule of Civil Procedure 59(e) motion to amend the back pay judgment to include prejudgment interest and a liquidated sum for loss of fringe benefits.
The court’s subsidiary findings of fact and its ultimate determination of liability are amply supported by the evidence. Because the findings rest on a strong evidentiary base, we rehearse only the factual highlights.
Earnhardt, who was born in the continental United States, was hired by the Commonwealth of Puerto Rico Health Department (Department) by contract dated October 24, 1975. The decision to hire Earnhardt was made by Dr. Antonio Silva Iglecia (Silva), who at that time was Assistant Secretary of Health for the Family Planning Division. The contract, under which he was to work ninety-five hours per month, expired on June 30, 1976. Shortly before that date, the contract was renewed for an additional year. In September 1976, the new contract was amended to allow for prorated sick leave and vacation time.
During his tenure with the Department, Earnhardt worked closely with Silva, preparing speeches and other policy statements. He represented Silva and the Department at an international conference on population and worked on various research projects. Earnhardt subsequently became subdirector of the Planning and Development Division under Sandra Quinones Lopez (Quinones) in July of 1976. Earnhardt’s contract was terminated later that year by a memorandum dated December 20, 1976, stating that clause 11 of the contract was the basis for the termination. Clause 11 provided that either party had the right to terminate the contract on thirty days’ notice, No reason was given to Earnhardt for the contract termination; Silva testified that he had invoked clause 11 so that the termination would not have to be justified by specific reasons.
The district court found as follows. Earnhardt, the only continental American working in the Family Planning Program, was frequently reminded of this by being addressed as “gringo” by his supervisors and co-workers rather than by his name. He was criticized upon occasion for being “muy Americano” (“very American”). “There existed in the workplace a sense that ‘Americans’ were outsiders, and that Earnhardt was one of them.” Earnhardt’s supervisor, Silva, who signed the termination memorandum, was “overly sensitive to professional differences of opinion when they came from ‘Americans.’ ” This was evidenced by a memorandum couched in ethnic terms from Silva responding to a critique by a team of evaluators from the U.S. Department of Health, Education, and Welfare and by comments Silva made to Earnhardt.
The Commonwealth contends that low productivity was the cause of Earnhardt’s termination rather than any discriminatory animus of his supervisors and co-workers. We agree with the district court that this profferred reason is not credible: “The overall impression we get from the memorandums submitted [into] evidence is that the plaintiff was a worker whose goal was to get on with his work and accomplish it in the most efficient manner possible.” The district court further found that some work rules were applied strictly and inflexibly to the plaintiff in contrast to the flexible application afforded Puerto Rican and Latin American employees in the Division.
Moreover, defendant’s own evidence was inconsistent on the reason for the firing. Silva testified that the reason Earnhardt was fired at this particular time lay in the incumbent government’s desire to turn over to the incoming administration, to which it had lost the election, only the best employees in the division. Yet there is no evidence that any other employee was terminated, or, for that matter, even evaluated at this time. The district court found that Earnhardt’s discharge was in direct violation of a Puerto Rican law which forbids Commonwealth agencies from effectuating any change in the personnel status of any employee during the sixty days before and sixty days after a general election. See 3 L.P.R.A. § 1337; see also Ortiz v. Alcade de Aguadillo, 107 D.P.R. 819 (1978). It was during this sixty-day period that Earnhardt received his termination notice.
Our review of the record convinces us that the district court’s findings were not only not clearly erroneous, but were clearly correct. We, therefore, turn to the plaintiff’s cross-appeal, which questions the summary denial of liquidated fringe benefits and prejudgment interest despite the judgment in his favor.
Plaintiffs Cross-Appeal
Earnhardt submitted a timely Rule 59(e) motion, Fed.R.Civ.P. 59(e), to amend the judgment to include within the back pay award prejudgment interest and liquidated fringe benefits, and to fix a sum certain as the amount of judgment. In his proposed findings and judgment submitted to the court after trial, Earnhardt had omitted these requests and petitioned solely for the value of his employment contract with the Commonwealth, at the rate of $850 per month, which was awarded him. Earnhardt’s 59(e) motion was denied.
Where a district court rejects a motion to alter or amend a judgment, the standard of review is whether there was an abuse of discretion. Robinson v. Watts Detective Agency, 685 F.2d 729, 743 (1st Cir.1982). Although the district court gave no reason for the denial of the motion, it was not required to do so under the rules and we must assume that the motion received careful consideration. The determination of the amount of damages is, absent legal error, a matter for the finder of fact. It cannot be said that either prejudgment interest or an award for lost fringe benefits must, as a matter of law, be part of the damages awarded in a Title VII case. The question of whether they are necessary to make a plaintiff whole is within the discretion of the district court. This is especially so when the request for such an award comes as an afterthought by the plaintiff. The district court did not abuse its discretion in denying the Rule 59(e) motion.
The judgment of the district court is affirmed in all respects.
Question: What is the total number of appellants in the case that fall into the category "state governments, their agencies, and officials"? Answer with a number.
Answer:
|
songer_appfiduc
|
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 "fiduciaries". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
DRYDEN v. MICHIGAN STATE INDUSTRIES et al. In re NICHOLS WIRE, SHEET & HARDWARE CO.
No. 9644.
Circuit Court of Appeals, Eighth Circuit.
July 20, 1933.
Joseph T. Owens, of Kansas City, Mo. (Maurice H. Winger and Leland Hazard, both of Kansas City, Mo., on the brief), for appellant.
L. L. Watts, of Kansas City, Mo., and Brauer, Bascom & Gerwitz, of St. Louis, Mo., for appellee.
Before STONE and WOODROUGH, Circuit Judges, and MUNGER, District Judge.
STONE, Circuit Judge.
Nichols Wire, Sheet & Hardware Company, being in receivership, the state of Michigan, operating under the name of Michigan State Industries, filed a claim based upon money due on a consignment of binding twine sent to> the above company. There is no contest over the amount due. The entire controversy is over giving the claim priority of payment. Priority was urged upon the basis of an equitable lien upon the proceeds coming into the hands of the receiver because the claim arose from sale of consigned merchandise, and also because the state of Michigan had a statute providing for priority of payment of debts due to it. Upon the former ground, the trial court awarded priority, and from that order this appeal is brought.
Prior to June, 1930, appellee had sold twine to the Nichols Company. In June, 1930; a representative of appellee called upon Frank R. Nichols, president and dominating personality of the company, and sought to sell more twine. Because the company still had on hand some of the twine theretofore purchased ami because of the condition of business (occasioned by a severe drouth in that business territory), Mr. Nichols declined to obligate his company further by additional purchases of twine. This situation resulted in a verbal agreement to send further twine upon consignment, allowing the company compensation to consist of the difference between the price for which it must be responsible and the price at which it might sell, together with a 5 per cent, discount upon monthly remittances. In accordance with this arrangement, the company sent to appellee two orders, as shown in the foot note. In compliance with these orders, the twine was promptly shipped, accompanied by invoices, as shown in the footnote. Thereafter the company sold the twine which it had on hand at the time of the verbal agreement, and thereafter sold the greater part of the consigned shipments before the receivership'. The receiver has sold the remainder. The amount of the claim involved here is the balance due upon the consigned twine.
Appellant ably argues here three matters: First, thaf although the contract contemplated a consignment of the twine to the company, it also intended that relation to change upon the sale of the twine by the company, at which time the bailment was to become a debtor-creditor relation; second, that even though the verbal contract contemplated a continuing consignment without the above change, yet there was an arrangement, subsequent to the shipment of the twiné, which changed the relation to' that of debtor-creditor; and, third, that no trust fund has been established in the hands of the receiver upon which the priority of the consignor could operate. The appellees present the additional matter that the state of Michigan is entitled to priority as a prerogative of sovereignty and by virtue of legislative enactment.
I. There are many eases involving the problem of whether a particular contract is one of bailment or of sale and from the decisions therein have evolved certain criteria and results useful in determining such questions. An opinion of Judge Booth, for this court, contains a generous citation of cases stating and applying these tests. M'arrinan Medical Supply v. Ft. Dodge Serum Co. (C. C. A.) 47 F.(2d) 458, 464. It is often difficult to determine whether a contract is one of sale or of bailment, because “in recent times, the real or supposed needs and exigencies of business and the ingenuity of business men and of their lawyers have evolved a class of contraéis which have the earmarks of both sale contracts and factor-age contracts.” Marrinan Medical Supply v. Ft. Dodge Serum Co., 47 F.(2d) 458, 460 (C. C. A. 8). The essential difference between the two kinds of contracts is the locus o f the title. This locus is tested not so much from the standpoint of the sender (bailor or seller) as from that of the receiver (bailee or buyer). The title may remain in the sender but if it is poised for flight into the receiver as soon as he pays the price, it is a sale, even though conditionally so. Sturm v. Boker, 150 U. S. 312, 329, 330', 14 S. Ct. 99, 37 L. Ed. 1093; Baffin & 11. Powder Co. v. Burkhardt, 97 U. S. 130, 24 L. Ed. 973; Samson Tire & Rubber Co. v. Eggleston, 45 F.(2d) 502 (C. C. A. 5), certiorari denied 284 U. S. 620, 52 S. Ct. 9, 76 L. Ed. 529'; Reliance Shoe Co. v. Manly, 25 F.(2d) 381 (C. C. A. 4); In re U. S. Electrical Supply Co., 2 F.(2d) 378 (D. C. 111.); In re Wells, 140 F. 752 (D. C. Pa.). But if the title never passes into the receiver, then it cannot be a sale to him. Ludvigh v. Am. Woolen Co., 231 U. S. 522, 34 S. Ct. 161, 58 L. Ed. 345; Sturm v. Boker, 150 U. S. 312, 329, 330, 14 S. Ct. 99, 37 L. Ed. 1093; Franklin v. Stoughton Wagon Co., 168 F. 857 (C. C. A. 8); Butler Bros. Shoe Co. v. U. S. Rubber Co., 156 F. 1, 5 (C. C. A. 8), certiorari denied 212 U. S. 577, 29' S. Ct. 686, 53 L. Ed. 658; In re Columbus Buggy Co., 143 F. 859 (C. C. A. 8); Metropolitan Nat. Bank v. Benedict Co., 74 F. 182 (C. C. A. 8).
In determining such questions, two matters must be borne in mind. First, that “the ordinary or eommon-law liabilities of a bailee may be enlarged, without destroying the essential character of the contract” [In re Eichengreen (D. C.) 18 F.(2d) 101, 104, affirmed Reliance Shoe Co. v. Manly, 25 F.(2d) 381 (C. C. A. 4); Sturm v. Boker, 150 U. S. 312, 330, 14 S. Ct. 99, 37 L. Ed. 1093; In re Galt, 120 F. 64, 68 (C. C. A. 7)], and consequently too much emphasis should not be put on provisions having that effect only. Second, that a contract may provide for a change in the title loeus upon the happening of certain stipulated contingencies or situations. Mitchell Wagon Co. v. Poole, 235 F. 817, 820 (C. C. A. 6); In re Chalmers, 206 F. 143 (D. C. Mont.); Nutter v. Wheeler, Fed. Cas. No. 10, 384, 2 Lowell, 346; Ex parte White, L. R. 6 Ch. App. 397.
With the general rule as -well as the two matters just referred to in mind, we examine the contract hero. While appellant does not go quite to the point of admitting there was a bailment at all, yet he places himself on the safer ground that “there was a consignment and henee a bailment until sale by appellant, but upon such sale appellant became a purchaser and hence a debtor for the invoice price of the twine sold to its customers.” As to this issue, he argues, first, that certain expressions on the invoices show “appellant became a debtor upon sale of the twine to its customers,” and, second, that “the conduct of the parties shows” the same thing.
The statement in the invoices relied upon is “5 P C Monthly Remittances.” He construes this as meaning that the bankrupt “had an option to pay the invoice price, for goods sold during the month, at the end of the month, and get a 5% discount, or * * * had the option to pay the invoice price when it got ready (within a reasonable time), but in that event it received no 5% discount.” From which it is concluded that “Such an arrangement is compatible only with a debt- or-creditor relationship. It is absolutely repugnant to a trust relationship. * * * ” In the first place, the invoice is not controlling (Sturm v. Boker, 150 U. S. 312, 328, 14 S. Ct. 99, 37 L. Ed. 1093) where it is in performance of a contract previously made. Here there had been a verbal contract in pursuance of which the orders and invoices resulted. This fiart of that contract is shown by the evidence to be as follows:
“Q. I notice on’ these Exhibits, C and D, it states 5% on monthly remittances. A. Yes.
“Q. What do you mean by that? A. My deal with Mr. Nichols on this consignment proposition ivas that he was to report each and every month on the sales made during the month past, and figure up the cost of the twine sold according to invoice price on which it was hilled and to remit to us the amount due us, which would be less the 5% providing the price was made at such time.
“Q. On monthly sales? A. Yes.” (Italics inserted.)
From this it appears that the discount was to be effective only upon collections realized by the bankrupt, and its purpose evidently is to encourage prompt collections and remittances. A similar discount provision was beld by the Supreme Court not to prevent a bailment. Ludvigh v. American Woolen Co., 231 U. S. 522, 34 S. Ct. 161, 58 L. Ed. 345.
Appellant contends that if the above statement on the invoices does not necessarily have the above meaning and effect, at least it renders the contract ambiguous, and therefore explainable by extraneous conduct of the parties placing tbeir construction thereon. We doubt if such ambiguity exists but, even so, this court has announced the rule of construction to be that where such a contract is ambiguous the doubt must be resolved in favor of the bailment. In re Smith & Nixon Piano Co. (C. C. A.) 149 F. 111, 112; also, see In re Harris & Bacherig, 214 F. 482 (D. C. M. D. Tenn.) opinion by Sanford, later Mr. Justice Sanford.
Therefore, while appellant properly may enter this issue, it does so with the burden that the conduct of the parties must “either expressly or by necessary inference” (In re Harris & Bacherig, supra, page 482 of 214 F.) establish its position. The first matter insisted on is that the bankrupt could, under the contract, sell at its own price. This alone is not sufficient. Ludvigh v. Am. Woolen Co., 231 U. S. 522, 34 S. Ct. 161, 58 L. Ed. 345; In re Columbus Buggy Co., 143 F. 859, 861 (C. C. A. 8); In re Renfro-Wadenstein, 53 F.(2d) 834, 835 (C. C. A. 9). Another matter is that the ledger of appellees shows a “lumping” of these two invoices with money due on the sales made before this consignment agreement into a total item from which was taken the payments made leaving a balance which covered the twine unsold up to the receivership and for which the claim was made. From this it is argued that appellees were willing to accept the Nichols ¡Company as¡ a debtor. Why this action should have effect as a construction of the contract is not quite clear. If it might it is nullified in such result by tbe same account showing, as to these two invoices, the notation “Consignment Remittaneqs to be made on monthly sales.” Another matter thought to affect this situation is that no requirement was made to keep' the twine in a separate lot nor the proceeds in a separate bank account. It was not necessary to require either, although this twine was, as matter of fact, kept in a separate lot. In McCallum v. Bray-Robinson Clothing Co., 24 F.(2d) 35, 37 (C. C. A. 6), there was a complete mingling of tbe assigned goods with others; nothing being required in tbe contract. In various eases tbe consigned goods have been commingled with others, Hamilton Nat. Bank v. McCallum, 58 F.(2d) 912 (C. C. A. 6), certiorari denied Scott v. Hamilton Nat. Bank, 287 U. S. 619, 53 S. Ct. 19, 77 L. Ed. -; McCallum. v. Bray-Robinson Clothing Co., 24 F.(2d) 35, 37 (C. C. A. 6); In re Klein, 3 F.(2d) 375, 378-379 (C. C. A. 2); In re Taylor, 46 F.(2d) 326 (D. C. Mich.); see, also, Ludvigh v. Am. Woolen Co.; 231 U. S. 522, 529, 34 S. Ct. 161, 58 L. Ed. 345, and in other eases no separate bank accounts have been kept or required. Hamilton Nat. Bank v. McCallum, supra; General Elec. Co. v. Brower, 221 F. 597, 601 (C. C. A. 9); see also, Cable v. Iowa State Sav. Bank, 197 Iowa, 393, 194 N. W. 957, 959, 197 N. W. 434, 31 A. L. R. 748. The final matter suggested is expressions in a letter from appellees (of November 20, 1931) which, contends aj>pellant, “as much or more than any other one thing shows that appellant was a debtor of appellee for tbe twine which had been sold on tbe date tbe receiver was appointed.”
This letter was in answer to one written by Nichols which is not in the record. The essential portions are in the footnote. With particular emphasis on the italicized language, appellant contends this letter shows appellees construing the contract as providing that the consignee should become its debtor when the twine was sold to customers. Of course, there are isolated expressions which would fit a relationship of debtor-creditor, but the letter as a whole leaves no such impression as contended for. The letter is just sueh as might be written either by a consignor or by a seller to a valued customer who was having financial difficulties not due to his own fault. The evidence shows this to be Hie situation between the parties. Their relations were cordial and frank. The writer of this letter testified that Mr. Nichols was “a good friend of ours and continued to_ buy more and more twine, and was opening up territory.” The opening and closing paragraphs of this letter show the kindly feeling between these men, and also the desire of appellees to maintain friendly relations with a view of future business.
We can find nothing in the action or expression of the parties as above discussed, either separately or combined, to convince that the parties thereby construed this contract as intending a departure or change from the initial consignment relationship.
II. Another contention of appellant is that even if the contract itself contemplated no change from the consignment relation, yet there was a subsequent arrangement which altered that situation and made the consignee a purchaser of all the twine. It is claimed that certain paragraphs of the letter above discussed constituted “an offer to sell to appellant the twine in appellant’s warehouse.” Without determining we may grant that the letter had such effect. However, the offer was obviously conditioned on certain action on the part of the consignee. That was the sending of two checks for $1,500 each. There was never any compliance with this condition, nor even any promiso to comply, if sueh promise would have been sufficient as an acceptance of the offer.
III. Appellant argues that there was no proof that appellant (including the consignee as well as the receiver) ever received the proceeds from the sale of the twine, and therefore no establishment of a trust fund as a basis) for preferred payment. The evidence sliows this was not an active issue. While it was a matter to be proven by appellees, a stipulation covering some of the facts and certain admissions contain what was evidently understood to be proof of this matter. The stipulation speaks of “the proceeds from the sales of the binding twine under consideration” being deposited in certain banks and of an amount (several times larger than this item) coming into the hands of the receiver.
IV. Irrespective of this being a consignment arrangement and even if it were a sale, appellees contend the state is entitled to priority of payment because a statute of Michigan (Comp, Laws Mich. 1929, § 17618) expressly gives the state such priority. In view of the above determination that appellees are entitled to priority because this contract was one of consignment, it is unnecessary to examine this contention.
We think the order must be, and, therefore it is, affirmed.
Nichols Wire, Sheet & Hardware Purchase Company, Kansas City, Mo. Order 9718
To Michigan State Industries Ship to Nichols Wire, Sheet & Hate 6/13/30 Hdwe. Co., ............... Terms
Destination Kansas City, Missouri Date to be shipped.....................................
F. O. B. Consignment Rduting C. M. St P. & Pac. Ry. Co., Chicago 1 minimum car 50# bales 8# to the ball Binder Twine y2 to be marked with Farmers Bargain Supply Co. label y¿ to be marked with Michigan State Industries label. Price per letter of May 8th. $2400.00 _
Nichols Wire, Sheet & Hardware Company, Kansas City, Mo. To Michigan State Industries Ship to Nichols Wire, Sheet & Hdwe. Co., Purchase Order 9717 Date 6/13/30 Consignment
Destination Joplin, Missouri Date to bo shipped. At once Routing C. M. St. P. & P. at Chicago, K. C. S. Chicago at K. C.
1 Minimum carload, 50# bales 8# to the Ball
Binder Twine
Marked* with Michigan State Industries lab.el.
Priced per letter of May 8th. $2400.00
Michigan State Industries Jackson, Michigan Sold To Nichols Wire Sheet & Hdwe Co. Address 21st & Main Sts — Kansas City, Mo. Shipped To Same Address Shipped From Jackson Michigan Via..............CM&STP & Pac. Ry. Co. Our Order No. Your No. 9718 Invoice No. 58132 Date June 20 1930 Terms 5 PC Monthly Remittances FOB Chicago Quantity Shipped — Ordered Description Price Amount 240 Bales Farmers Bargain Special Binder Twine-12000 Lbs 8 Lb Balls 240 Bales Michigan Binder Twine — 12000 lbs 8 lb Balls LB 10 3/4 LB 10 3/4 Less diff of Frt Jack to K. C. & CHI to K. C. at 12 1/8 cts cwt On Consignment Remittances to be made on monthly sales. 1.290.00 1.290.00 2.580.00 30.00 2.550.00 Michigan State Industries Jackson, Michigan Sold To Nichols Wire, Sheet & Hdwe Co. Address Kansas City Mo. Shipped To Nichols Wire, Sheet & Hdwe Co. * Address Davenport Iowa Shipped From Jackson Michigan Via..........Freight Collect Our Order No. Your No. 9717 Invoice No. 58180 Date June 23 1930 Terms 5 Pc Monthly Remittances FOB Chicago Quantity Shipped — Ordered Description Price Amount 480 Bales Michigan Binder Twine — 24000 LB 10 3/4 2,580.00 Lbs 8 Lb Balls Less difference of Frt Jackson to Davenport & Chicago to Davenport at 8% cts cwt. 20.40 On Consignment Remittances to be made on Monthly Sales. 2,559.60
“Dear Mr. Nichols: It certainly was nice of you to sit down and write such a heart to heart letter about conditions, and I would not say that I am inclined to believe you hut I would say that I do believe you. I have been intending to make a western trip for sometime and naturally would call at your office but so far seems as though every day has something new to detain me here at home. However, it won’t be long before I will make a trip and perhaps we can then talk things over more definitely in regard to futiire business.
“Note from your letter that you have a chock written up for us for $3,000.00 and that is just about the amount of the check that we have been looking for although we did not know anything positively about what you would send except we figured that you would at least pay that much on the open consignment account, and you also state that you are going to release this check at the earliest possible moment. We do not want to break up any calculations that you have in regard to this payment, preferring of course to have this check come to us between now and Dec. 1st, but if that is not in the cards, suggest that you close our account in the following manner.
“Make two checks — one for $1,500.00 dated on receipt of this letter, another $1,500.00 check postdated say Dec. 15th to 20th and a note for ninety days, dated Nov. 1st with 6% interest. This would close the account and ease up your present conditions as we look at it, and in connection with the note, we would not discount it at our bank but would carry it in your own safe, and you could remit direct for the note when it became due rather than have it go through our bank as well as your own. You may not; see tills on account of all the twine not having been sold if that is the case, hut nevertheless, do it this way and leave it to us to do something in return the following season to adjust matters if it becomes necessary; in other words, we cannot expect you to prepay a consignment account when the commodity is not sold and that is the adjustment that I mn referring to.
“Another point I want to bring out is that we aim to have all of our binder twine accounts receivable in a closed condition by Dec. 1st with our agencies.
“We are certainly much pleased to know that you are having good luck with our twine, and that you want to continue the connection. Assure you that that is pleasing news indeed. Financial conditions may come and go but a friendly business connection is one that should be continued and wo are ready to do our part to make it so.” (Italics inserted.)
Question: What is the total number of appellants in the case that fall into the category "fiduciaries"? Answer with a number.
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.
Charles W. JAMIESON, Petitioner, v. COMMISSIONER OF INTERNAL REVENUE, Respondent.
No. 15143.
United States Court of Appeals Seventh Circuit.
Nov. 9, 1965.
Charles W. Jamieson, Chicago, 111., for petitioner.
Louis F. Oberdorfer, Asst. Atty. Gen., Tax Division, Lawrence B. Silver, Atty., U. S. Dept, of Justice, Washington, D. C., Lee A. Jackson, David O. Walter, Attys., Dept, of Justice, Washington, D. C., for respondent.
Before SCHNACKENBERG, CASTLE and KILEY, Circuit Judges.
SCHNACKENBERG, Circuit Judge.
Charles W. Jamieson, taxpayer, has by his petition asked us to review the decision of the Tax Court of the United States denying him a $600 deduction as an exemption for his wife on his separate income tax return for the year 1960.
During 1960 he was a 75-year-old retired lawyer and his wife was 61 years old. His separate income tax return stated that his wife was a bookkeeper and that she was filing a separate return. However, he deducted $600 as a personal exemption for his wife, as well as $1200 as two exemptions for himself, i. e., the regular personal exemption and the exemption allowed a taxpayer who is 65 years of age or over.
The Tax Court made findings embodying the foregoing facts, inter alia.
In this court taxpayer relies upon the following as propositions of law:
“Whether or not a taxpayer expending $2500.00 per year in entire support of himself and his wife, his dependent, can claim said wife, his dependent, when charging off one-half of the above expenditure for her support and claiming an exemption for that charge-off, under proper interpretation of the intent of the Congress, and the Code Secs. 151(b) and 152(a) 9 as liberally construed by case law and mixed law and fact theories; the Code under Title 26, and Supplements thereto, United States Supreme Court case law, that of the Courts of Appeals, District Courts and Illinois case law where applicable; please see index.
“Regulations Sec. 1 152-1 (a) (2) defines support as food, shelter, medical care and the like. This broad term and the like is, this Court will doubtlessly agree, sufficient to cover appellant’s needs in his favor where-ever arbitrarily held against appellant and, has latitude sufficient to help prove his case. (Such liberal verbiage is used in the instruction sheets 1964).”
We believe the controlling question before us is largely determined by the provisions of 26 U.S.C.A. §§ 151 and 152, which, insofar as pertaining hereto, we set forth below.
Sec. 151. Allowance of Deductions for Personal Exemptions
(a) Allowance of deductions. — In the case of an individual, the exemptions provided by this section shall be allowed as deductions in computing taxable income.
(b) Taxpayer and spouse. — An exemption of $600 for the taxpayer; and an additional exemption of $600 for the spouse of the taxpayer if a separate return is made by the taxpayer, and if the spouse, for the calendar year in which the taxable year of the taxpayer begins, has no gross income and is not the dependent of anq^her taxpayer.
-K * ' * * * *
Sec. 152. Dependent Defined.
(a) General definition. — For purposes of this subtitle, the term “dependent” means any of the following individuals over half of whose support, for the calendar year in which the taxable year of the taxpayer begins, was received from the taxpayer * * «• .
(9) An individual [other than an individual who at any time during the taxable year was the spouse, determined without regard to section 153, of the taxpayer] who, for the taxable year of the taxpayer, has as his principal place of abode the home of the taxpayer and is a member of the taxpayer’s household, * * *
In the case at bar respondent determined that taxpayer’s wife had a gross income during the taxable year. This was not disputed by him. If a husband and a wife file separate returns, each must take his or her own exemption.
Under § 151(b), a husband, as a taxpayer, may not on his separate return claim a deduction for a $600 personal exemption of his wife, in addition to his own $600 exemption, where she had gross income during the husband’s taxable year.
As to taxpayer’s propositions of law aforesaid, which assert that he expended $2500 per year in entire support of himself and his wife, charging off one-half thereof for her support and claiming an exemption therefor, the answer is set forth in our holdings in this opinion. There is nothing which may be added which promises to clear up the obvious confusion in taxpayer’s mind, which we regret.
For these reasons the judgment of the Tax Court is affirmed.
Judgment affirmed.
Question: What is the total number of respondents in the case that fall into the category "private business and its executives"? Answer with a number.
Answer:
|
songer_respond2_4_2
|
C
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed respondent. The nature of this litigant falls into the category "sub-state government (e.g., county, local, special district)". Your task is to determine which category of substate government best describes this litigant.
BURKE et al., v. SANITARY DIST. OF CHICAGO et al.
Circuit Court of Appeals, Seventh Circuit.
April 8, 1929.
Rehearing Denied May 22, 1929.
No. 4020.
John M. Zane, of Chicago, Ill., for plaintiffs in error.
Morton S. Cressy and James M. Sheean, both of Chicago, Ill., for defendants in error.
Before ALSCHULER, PAGE, and ANDERSON, Circuit Judges.
PAGE, Circuit Judge.
This aetion of ejectment, filed April 21, 1921, was brought by the devisees of James C. Burke, deceased, to recover lands taken by defendant, the Sanitary District of Chicago (herein called District), from John C. Burke and James C. Burke, in 1892 and 1893, through condemnation. The claim is that the District abandoned the lands in suit, and that plaintiffs, through the will of James C. Burke, deceased, own an undivided half interest therein in fee. An instructed verdict was returned for defendants.
The Sanitary District presents, in the main, two defenses: (a) That when it took the Burke lands it took them in fee, leaving no interest in Burke or his heirs; and (b) that in any event it has not abandoned the lands in question.
Whether, under the'statutes of its creation, the Sanitary District took the fee of lands it condemned was elaborately discussed by the late Judge Dibell, who for many years was a presiding judge of one of the Appellate Courts of Illinois, in an opinion which he delivered as judge of the Will county, Illinois, circuit court, in which he reached the conclusion that upon condemnation the Sanitary District took the fee. Upon appeal to the Supreme Court of Illinois, that court, while affirming the judgment of the circuit court, did'not pass on that question, but decided the case upon different grounds. Allen v. Haley, 169 111. 532, 48 N. E. 478. Other than this, we do not find that the question has been determined by the Illinois courts.
Our views on the question of abandonment make it unnecessary for us to decide the first proposition, and we refrain from discussing it.
The District was organized under a statute of the state of Illinois passed May 29, 1889. Sess. Laws Ill. 1889, p. 125 (3 Callaghan’s, Ill. St. Ann. c. 42, par. 337). The condemnation ease, appealed to the Supreme Court of Illinois, is found in Burke v. Saniitary District, 152 Ill. 125, 38 N. E. 670. Possession was taken in 1893, and in 1900 what is commonly known as the Chicago Drainage Canal was completed.
The Burke land, ^containing about 300 acres, is nearly a mile long, and at places about half a mile wide. Roughly speaking, it occupies, in width, all of the space between the Desplaines river, on the northwest side, and the Illinois and Michigan Canal, on the southeast side. It was low, swampy land, used solely for grazing. At the time of this trial, there were: In meadow and pasture, 40 acres; under cultivation, 58 acres; in mud flats, brush lands, and scattered timber, 98 acres; canal waters, 49 acres; other waters, 8 acres. The Drainage Canal runs through nearly the whole length of the Burke land, and its width, between designated dock lines, is 240 feet. It is sought to recover an undivided one-half of the land, except certain railroad rights of way, and except the strip occupied by said main channel, its prism, banks, and berm— a strip of land stated in the pleadings to be 296 feet wide. However, the actual width of the canal, from water’s edge to water’s edge, was 300 feet, and from the top of its banks, on either- side, its average width throughout was 365 feet. In the course of the construction of the canal, it became necessary to make, for some distance, a new channel for the Desplaines river. Prom the material excavated, large so-called spoil banks were made, and yet remain upon the Burke land. Some of them are between the channel of the Drainage Canal and the Illinois and Michigan Canal. One, on the northwest side of the Burke land, was placed with a view of strengthening the bank of the Desplaines river.
The acts of abandonment relied upon are as follows:
Platting. Lands on either side of the channel, from Robey street, in Chicago, to the Will county line, a distance of 20 miles, and claimed to be owned by the District, were platted into lots of various sizes. Beginning at Robey street, they were numbered from 1 to 274. It is not a statutory plat, and there is no dedication to the public of any street, alley, or other public place. There are legitimate purposes to be served by platting the lands into parcels and designating them by number. The fact of platting is no evidence of an intention to abandon.
Advertising. There was a sign near the Burke property, calling attention to desirable factory sites on the District right of way. The offer was to lease only, and did not mention the Burke property. An advertising prospectus is in the record, and there are reproduced on various pages thereof sections of the platted and numbered lots, beginning at Robey street, and covering all lots up to and including lot 133. Lots 132 and 133 are the only lots mentioned that are in the Burke property. Opposite the lot numbers are shown the appraised values of the tracts. That information was given to show the rental rates, the statement being: “The annual rental of each lot or tract is based on 5 per cent, of its appraised valuation.” We find no offer of sale, other than that relating to the material in some of the ■ spoil banks.
Leases. Leases are shown to three tenants for farming and grazing purposes. In each is reserved to lessee the right to cancel, on short notice. A lease to the Corn Products Manufacturing Company, for 99 years, is for a strip of land about 1,'500 feet long on the southeasterly side of the main channel and of the width of about 400 feet to the northeasterly line of the Illinois and Michigan Canal. The lease contains the following provision:
“The said lessor may at any time enter upon said premises for the purpose of widening its said main channel, and may at any time take so much of said premises as may be necessary for the widening of said main channel.”
There is the provision that lessee may take daily from the channel 25,000,000 gallons of water, provided it returns daily an equal- quantity. Lessee agrees to pay all water rates, taxes and special assessments levied upon the leased premises. The lease provides that lessee shall build and maintain a dock along the entire front of the leased property on the channel, in accordance with the Drainage District’s plans and specifications, and it also agreed to excavate, for one-half the entire width of the canal, under the direction of the District’s engineer, so as to deepen the channel to the grade originally established. It is further provided that the District shall have the right to erect poles on the south 40 feet of the strip and to maintain them for the purpose of carrying wires. There was also a provision that the lessee will.remove the spoil bank on the leased premises. All lessees are parties defendant.
“To constitute an abandonment there must be not only an actual relinquishment of the property, but an intention to abandon it. The intention of the party * * * is the important fact.” Chicago & E. I. R. Co. v. Clapp, 201 Ill. 418, 425, 66 N. E. 223, 225. See, also, Lindblom v. Rocks, 146 F. 660, 664 (9th C. C. A.).
Durfee v. Peoria, D. & E. Ry. Co., 140 Ill. 435, 30 N. E. 686, was a case of nonuser. The railroad company leased, for 10 years, the right to use a part of another railway company’s tracks, and thereupon ceased to use the tracks on the land in question. The rails and ties were taken up, and the land was fenced in with the land of the former owner, from whom it had been taken by condemnation, and who paid taxes on it. The evidence showed that the railroad company intended to resume the running of trains over the old right of way. The court said (page 439 [30 N. E. 687]):
“Under this evidence we perceive no ground whatever upon which it could be held that the railroad company had lost its right of way by abandonment.”
Clearly, wo think, there was nothing in the three leases to indicate abandonment. Wo shall consider the Corn Products lease further.
The act under which the District was formed is “An act to create Sanitary Districts, and to remove obstructions in the Desplaines and Illinois rivers.” Laws 1889, p. 126. Section 1 provides:
“That whenever any area of contiguous territory within the limits of a single county shall contain two or more incorporated cities, towns or villages, and shall be so situated that the maintenance of a common outlet for the drainage thereof will conduce to the preservation of the public health, the same may be incorporated as a sanitary district under this act. * * * No territory shall bo included in any municipal corporation formed hereunder which is not situated within the limits of a city, incorporated town or village, or within three miles thereof. * * * ”
Section 12 authorizes the trustees of the District to levy and collect taxes within the territorial limits of the District, and there are other provisions relating to taxation and special assessment. Although there is a limitation as to the territory that may be included and taxed in any district, there is a provision by which other territory may have the use of the channel on terms to be agreed upon. Section 20 provides:
“Any channel * * * which shall cause the discharge of sewage into or through any river or stream of water beyond or without the limits of the district * * * shall be of sufficient size and capacity to produce a continuous flow of water of at least two hundred cubic feet per minute for each one thousand of the population of the district drained thereby, and the same shall be kept and maintained of such size and in such condition that the water thereof shall be neither offensive or injurious to the health of any of the people of this state, and before any sewage shall be discharged into such channel or outlet all garbage, dead animals, and parts thereof, and other solids shall be taken therefrom.”
It is also provided that:
“If the population of the district draining into such channel shall at any time exceed 1,500,000, such channel shall be made and kept of such size and in such condition that it will produce and maintain at all times a continuous flow of not loss than 20,-000 cubic feet of water per minute for eaeh 100,000 of the population of such district. * « *»
There are many other important provisions in that section, giving authority to and placing burdens upon the District. Section 24 provides:
“When such channel shall bo completed, and the water turned therein, to the amount of 300,000 cubic feet of water per minute, •the' same is hereby declared a- navigable stream, and whenever the general government shall improve the Desplaines and Illinois rivers, for navigation, to connect with this channel, said general government shall have full control over the same for navigation purposes, but not to interfere with its control for sanitary or drainage purposes.”
It is provided that compliance with the act may be compelled by suits brought by the Attorney General, and the District is liable for damages to those wrongfully injured. Section 7 reads:
“The board of trustees of any sanitary district organized under this act shall have power to provide for the drainage of such district by laying out, establishing, constructing and maintaining one or more main channels, drains, ditches and outlets for carrying off and disposing of the drainage (including the sewage) of such district, together with such adjuncts and additions thereto as. may be necessary or proper to cause such channels or outlets to accomplish the end for which they are designed in a satisfactory manner. * * * ”
Section 8 provides:
“Such sanitary district may acquire, by purchase, condemnation, or otherwise, any and all real and personal property, right of way and privilege, either within or without its corporate limits that may be required for its corporate purposes; * * * and, when not longer required for such purposes, to sell, convey, vacate and release the same, subject to the reservation contained in section 7, relating to water powers and docks.”
Various amendments have been made to the statute of 1889, and it is urged that some of them are unconstitutional because they embody an attempt to bestow upon the District, and empower it to dispose of, a greater title than was taken by condemnation. While the Legislature could not, by subsequent legislation, bestow upon the District any greater title than that taken on condemnation, yet it is lawful for a Legislature to place upon a municipality burdens, duties, and obligations incident to the general purpose of the original legislation. The original act in fact foreshadows the possibility of such legislation by providing in section 22:
“Nothing in this act contained shall be so construed as to constitute a contract or grant between the state of Illinois and any sanitary district formed under its provisions, or to prevent, debar or deprive the state of Illinois from, at any time in the future, altering, amending or repealing this act, or imposing any conditions, restrictions, or requirements other, different or additional to any herein contained upon any sanitary district which may be formed hereunder.”
When the land was condemned, ■ the Burkes had notice not only of the terms and conditions then imposed upon the District, but also had notice that the land was 'taken for such other purposes as might be imposed upon the District by the Legislature.
It is apparent that the obligations and duties that the District was required to meet at its inception were not the measure of thé obligations and duties that the District was, or might be, required by the act fo meet and perform during the years that were then before it, or during the years that are yet to come. The city of Chicago, which constituted most of the territory of the District when it was founded, then had 1,000,000 people. Since then the territory has been nearly doubled, and the people within it have trebled. The main channel extends from Robey street, in the city of .Chicago, "32 miles, through the counties of Cook and Will, to Joliet. The District is charged with the duty and responsibility of so taking care of the drainage and the sewage brought to it from the city of Chicago and other cities within its territory that the sewage will not be a menace either to the people of the District or to those using the waters of the Illinois and Desplaines rivers. It cannot now be told what lands or other property, what channels or other facilities,' will be necessary to enable the District tq carry out the obligations imposed upon it by law. The amount of land taken in condemnation was not contested by the Burkes, and they were awarded by the jury the full fair cash market value thereof, and it was paid by taxation of the people. There is no equitable reason why anything shown in the record should be held to be an abandonment, where it is clearly shown that there was an intent not to abandon the property.
It has always been contended by the District that it owns the fee in the Burke land. We do not decide this question, but the claim has. been apparently made in good faith, and that contention excludes any idea of intent to abandon. We have not overlooked the fact that in some eases intent may be presumed from the nature of the acts done.
The evidence in this case, taken ahout 25 years after the opening of the channel, shows that at that time there was 11 feet of sediment and sewage in its bottom, nearly one-third of its total depth. It seems probable that, unless the sediment is removed, the channel will soon lack the depth necessary for either drainage or navigation. One of the things required of the Corn Products Manufacturing Company, under its lease, was that it should excavate, to its original depth, one-half of the channel in front of the property leased. Whether excavated by the Corn Products Manufacturing Company or by the District itself, there is nothing in the record from which we can tell that the land in question will not be needed in the future, as it was at the time of the original excavation, for the economic disposition of the excavated material.
The record does not show the kind and character of docks required by the lease to be constructed by the Corn Products Manufacturing Company. There is nothing from which wo can determine whether all of the land covered by the lease will be required for the purposes reserved therein to the lessor: (1) The right to ereet poles and wires on a 40-foot strip along the Illinois and Michigan Canal; (2) the right to use any necessary part of the leased land for the purpose of widening the channel. Nor can it be known bow much of the land will be necessary to enable the lessee to construct and maintain docks, required by the lease. The Supreme Court of Ohio said: “A dock is a place for vessels, either excavated from the land, or surrounded by wharves.” Bing-ham v. Doane, 9 Ohio, 165, 167. On one of the exhibits there are shown many U-shaped slips, extending out from the Chicago river. It is a matter of common knowledge that docks are so constructed that vessels may be brought within the slips for loading and unloading. While docks so constructed increase the water line and enable vessels to be unloaded and loaded outside the main channel, they at the same time greatly increase the width of the land necessary for their construction. So far as we know from the record, the construction indicated above may be the construction required by the lease. One of the plats shows a sewer from Argo across the leased property, emptying into the channel. Although this is a 99-year lease, we do not think that, under all the circumstances, it was improperly made. To lease docks and sell power, to widen the channel, or to construct additional channels are matters not limited as to time. But, if it can be said that the lease to the Corn Products Company is one beyond the power of the District to make, yet as the District was established to meet a great public necessity, at great expense to the people, it should not be held that a wrongful use by tbe District of a part of its property amounts to abandonment, particularly where such use, as here shown, is intimately connected with the purposes covered by the statute.
Ordinarily, the question of abandonment is for the jury, but where, as we conclude to be the case here, the evidence, with all the inferences fairly to be drawn therefrom, is insufficient to show abandonment, there may and should be a directed verdict for the defendant.
The judgment is affirmed.
Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "sub-state government (e.g., county, local, special district)". Which category of substate government best describes this litigant?
A. legislative
B. executive/administrative
C. bureaucracy providing services
D. bureaucracy in charge of regulation
E. bureaucracy in charge of general administration
F. judicial
G. other
Answer:
|
songer_district
|
B
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
UNITED STATES of America, Plaintiff-Appellee, v. Edwin Thomas BARRETT, Defendant-Appellant.
No. 81-1622.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted June 7, 1982.
Decided April 11, 1983.
As Amended on Denial of Rehearing June 7, 1983.
Stephen R. Sady, Portland, Or., for defendant-appellant.
William W. Youngman, Asst. U.S. Atty., Portland, Or., for plaintiff-appellee.
Before CHOY, TANG and BOOCHEVER, Circuit Judges.
CHOY, Circuit Judge:
Edwin Barrett appeals from his conviction, after trial by jury, for robbing a federally insured savings and loan association, in violation of 18 U.S.C. § 2113(a). He contends that the trial court erred in (1) denying his motion for a continuance that was needed to enable his counsel to prepare for cross-examination and rebuttal of the Government’s photographic expert; (2) refusing to substitute an alternate juror for, or allow defense counsel to question, a juror who claimed to have been sleeping during the trial; and (3) admitting certain testimony of Government witnesses that should have been excluded. Because we find error in the trial court’s handling of the “sleeping”-juror question, we remand for a hearing on this issue.
I. Facts
On June 5, 1981, at about 3:25 p.m., a lone robber entered the Uptown Branch of Western Savings and Loan in Portland, Oregon. The robber approached Lydia Bass, a teller, showed her a gun, and demanded money. Bass gave the robber approximately $410 and two clips of bait bills — one containing a dye pack and the other activating the bank surveillance cameras.
On June 9, 1981, a Federal Bureau of Investigation agent and a Portland police officer went to Barrett’s residence and confronted Barrett with a surveillance photograph taken during the June 5th robbery. Barrett accompanied the officers to the Portland office of the FBI where he was questioned by Special Agent Stanley Rénning, released, then arrested two and a half hours later.
At trial, the major issue was one of identification. The Government introduced four 8- by 10-inch surveillance photographs of the robber and two smaller photographs of Barrett as he appeared before he shaved his beard and mustache. All the witnesses who testified at trial were for the Government. Bass, the teller, testified that she had previously selected Barrett’s photograph as that of the robber in a pretrial photographic spread, although she had not been certain of the identification. She also identified a gun and clothing seized from Barrett as resembling those used by the robber, and made a positive in-court identification of Barrett.
Barbara Lemon, Barrett’s live-in girl friend, testified that the person in the surveillance photograph was Barrett. She also testified that the clothes seized by the FBI were worn by Barrett on June 5th, the day of the robbery; that the gun seized by the FBI was a starting pistol that belonged to her; that Barrett left home at 7:00 a.m. on the day of the robbery, claiming that.he was going to work for Hoffman Construction Company, and did not return until 4:00 p.m.; that when he returned at 4:00 p.m., Barrett gave her $230 in cash to pay a telephone bill; that later that same day he shaved off his beard and mustache; and that he took her to dinner that night and paid the bill, something he usually did not have money to do.
Special Agent Stanley Renning of the FBI testified regarding statements Barrett had made while being questioned on June 9th about the robbery. Agent Renning testified that Barrett said that he spent the major portion of the afternoon at home preparing for a fishing trip on the day of the robbery, and that he shaved off his beard and mustache on June 4th, the day before the robbery.
Finally, Peter Smerick, an FBI photographic expert, testified that he compared the clothing of Barrett seized by the FBI with that worn by the robber in the bank surveillance photograph by use of a microscope and high-intensity light. Smerick testified to detailed similarities between Barrett’s clothing seized by the FBI and that worn by the robber in the surveillance photograph, including the color and placement of buttons on the sweater, the stripes and placement of buttons on the shirt, and the stains found on the cap.
II. Discussion
A. Denial of Barrett’s Motions for Con- . tinuance
Barrett contends that in view of the Government’s last-minute production of a photographic expert witness, the trial court should have granted a continuance to enable his counsel to prepare for cross-examination and rebuttal of that expert. The Government first notified Barrett of its intention to call a photographic expert as a witness on July 28, 1981, eight days before trial. Barrett had earlier moved for a continuance because of his counsel’s involvement in other trials. On July 31,' 1981, Barrett supplemented this motion by submitting an affidavit by his counsel stating that a continuance was necessary in order for Barrett to prepare for the expert and possibly obtain a defense expert.
On August 3, 1981, two days before trial, the Government provided Barrett with the results of the expert’s report. Although the record indicates that Barrett made a diligent effort to secure an expert to assist him before trial, he was unsuccessful. Barrett made numerous motions for continuance before and during trial which were all denied.
Barrett relies principally on the Second Circuit decision of United States v. Kelly, 420 F.2d 26 (2d Cir.1969), to support his argument that the trial court’s failure to grant a continuance constitutes reversible error. The defendants in Kelly were two police officers who were charged with retaining and selling cocaine that they had seized in an earlier raid. At trial, the Government introduced the results of neutron-activation tests which tended to show that the cocaine sold by the defendant police officers came from the same batch seized in the earlier raid. The Government, in violation of a discovery order, had not informed the defendants of the tests, and the defendants first learned of the test results when they were introduced at trial. The defendants’ motion for a continuance to carry out its own version of the tests was denied and the defendants were subsequently convicted.
In reversing the defendants’ convictions, the Second Circuit held that “fairness requires that adequate notice be given the defense to check the findings and conclusions of the government’s experts.” Id at 29.' The court ordered a new trial to give the defendants a fair opportunity to run their own neutron-activation tests. Id
We conclude that the rule announced in Kelly applies to the present case. Thus, the question becomes whether Barrett was given adequate time to obtain an expert to assist him in attacking the findings of the Government’s photographic expert. Under the circumstances of this case, we find that Barrett was not given adequate time to obtain an expert to assist him in attacking the Government’s expert.
Barrett was first notified of the Government’s intent to call a photographic expert eight days before trial. He received the results of the expert’s tests only two days before trial. The record indicates that Barrett probably could have obtained an expert to assist him had he been given more time.
The denial of a continuance is within the trial court’s discretion and should not be disturbed on appeal absent clear abuse. United States v. Hoyos, 573 F.2d 1111, 1114 (9th Cir.1978). In failing to grant the requested continuance to allow Barrett adequate time to obtain the assistance of an expert, the trial court clearly abused its discretion. Cf. United States v. Durant, 545 F.2d 823, 827-28 (2d Cir.1976) (failure to grant indigent defendant’s request for fingerprint expert violates Criminal Justice Act); Barnard v. Henderson, 514 F.2d 744, 746 (5th Cir.1975) (defendant has right to have own ballistics expert examine evidence).
Our finding of error does not end our inquiry. We must also determine whether the error amounts to one requiring reversal of Barrett’s conviction. In this context, it is important to note that our finding of error is based on our determination that Barrett should have been given additional time to secure a defense expert for the limited purpose of assisting him in attacking the credibility of the Government’s expert through cross-examination and rebuttal. It is not based on a determination that Barrett was entitled to additional time to secure a defense expert witness to provide affirmative proof of his innocence by showing that his seized clothes and the clothes worn by the robber in the surveillance photograph were different. Barrett received general discovery in the case three weeks before trial; it was only notification of the Government’s intention to call a photographic expert and the results of the expert’s tests that were received late. If Barrett had desired a photographic expert to provide affirmative proof of his innocence, he had ample time to secure one. The prejudice resulting to Barrett from the denial of the continuance is thus limited to his difficulty in attacking the credibility of the Government’s witness without the aid of an expert.
This prejudice could have been eliminated by excluding the testimony of the Government’s expert witness. Therefore, the denial of the continuance would be harmless error if the improper admission of the testimony of the Government’s expert under the facts of this case would be deemed harmless.
An error is considered harmless and shall be disregarded on review if it does not affect substantial rights of the defendant. Fed.R.Crim.P. 52(a). This circuit has for-formulated a test requiring the determination of whether the prejudice resulting from the error was more probably than not harmless. United States v. Castillo, 615 F.2d 878, 883 (9th Cir.1980).
The Government introduced the testimony of the photographic expert for the purpose of identifying Barrett as the robber. We find that the other Government evidence introduced at trial identifying Barrett as the robber is so overwhelming that the improper admission of the expert’s testimony would be deemed harmless error. United States v. Burke, 506 F.2d 1165, 1170 (9th Cir.1974) (erroneous admission of photographic expert’s testimony harmless in view of other overwhelming evidence), cert. denied, 421 U.S. 915, 95 S.Ct. 1576, 43 L.Ed.2d 781 (1975); United States v. Brown, 501 F.2d 146, 150 (9th Cir.1974) (same), rev’d in part on other grounds sub nom. United States v. Nobles, 422 U.S. 225, 95 S.Ct. 2160, 45 L.Ed.2d 141 (1975); United States v. Trejo, 501 F.2d 138, 143 (9th Cir. 1974) (same). The Government’s considerable identification evidence included (1) four clear 8- by 10-inch bank surveillance photographs of the robber for the jury to examine and compare with two smaller photographs of Barrett taken before he had shaved his beard and mustache, Barrett’s clothes seized by the FBI, and Barrett’s physical appearance at trial; (2) a positive in-court identification by Bass, the teller, who had previously given a fairly accurate description of the robber to the police and who also identified the clothing seized from Barrett as resembling that worn by the robber; and (3) the testimony of Lemon, Barrett’s live-in girl friend, who identified Barrett as the person in the surveillance photo. Since the improper admission of the Government expert’s testimony would be deemed harmless, it follows that the district court’s failure to grant the continuance is harmless error. We hold that no substantial rights of Barrett were affected by the error.
B. Sleeping Juror
After the court had instructed the jury but before the jury began its deliberations, a juror apparently asked to be removed from the panel because he had been sleeping during the trial. The judge advised both counsel of the juror’s request, stating;
Counsel, Mr. Detweiler, Juror No. 4, has been sleeping during this trial. And he’s indicated to the clerk that he would prefer to be excused in favor of the alternate juror, Mr. West.
The judge went on to state:
I don’t have the authority to do that [order the substitution]. If you wish to do it by stipulation, I shall, or will leave it alone, depending on the view of counsel.
Barrett requested the substitution, but the Government refused to so stipulate. In the absence of the Government’s stipulation, the judge refused to order the substitution.
After the jury returned a verdict of guilty, Barrett filed a motion to permit the defense to interview the juror. The trial judge denied the motion, stating:
On the matter of the juror, there was no juror asleep during this trial. I watch the jurors constantly. Of course, I can’t tell whether somebody might have felt drowsy, nor could I tell if somebody has a personal problem of some kind which might divert their mind from the case.
Other circuits have allowed a trial judge, in response to a defendant’s allegation that a juror had been sleeping, to take judicial notice of the fact that the juror had not been sleeping without requiring the judge to .make any inquiry into the allegation. United States v. Curry, 471 F.2d 419, 421-22 (5th Cir.), cert. denied, 411 U.S. 967, 93 S.Ct. 2150, 36 L.Ed.2d 688 (1973); United States v. Carter, 433 F.2d 874, 876 (10th Cir.1970). We do not believe, however, that under the particular circumstances of this case, the trial judge could properly take judicial notice of the fact that “there was no juror asleep during this trial” without making further inquiry into the matter. Unlike the above cited cases where the allegation of a sleeping juror was raised by the defendant, the court in this case was apparently informed by the juror himself that he had been sleeping during the tri^l. In view of the juror’s own statement, we have no basis for accepting the trial judge’s bare assertion that no juror had been asleep during trial.
The trial judge has considerable discretion in determining whether to hold an investigative hearing on allegations of jury misconduct and in defining its nature and extent. United States v. Hendrix, 549 F.2d 1225, 1227 (9th Cir.), cert. denied, 434 U.S. 818, 98 S.Ct. 58, 54 L.Ed.2d 74 (1977). We nevertheless hold that in failing to conduct a hearing or make any investigation into the “sleeping”-juror question, the trial judge abused his considerable discretion in this area. The case is remanded with instructions that the trial judge conduct a hearing to determine whether the juror in fact was sleeping during trial and, if so, whether the juror’s being asleep prejudiced Barrett to the extent that he did not receive a fair trial. United States v. Hendrix, 549 F.2d at 1229. The trial judge shall conduct the hearing and shall submit his findings and conclusions along with a copy of the hearing transcript to this court. We retain jurisdiction pending receipt of the trial judge’s findings and conclusions and a copy of the hearing transcript.
C. Admission of Testimony
Finally, Barrett claims that the trial court erred in admitting the testimony of several Government witnesses. Specifically, he challenges the admission of (1) the in-court identification of the teller, Bass; (2) the testimony of his girl friend, Lemon, identifying him as the person in the bank surveillance photograph; and (3) certain statements he made to FBI Special Agent Renning.
1. Bass’ In-Court Identification
Approximately two weeks after the robbery, the teller, Bass, was asked to identify the robber from among a pretrial photographic spread prepared by the FBI. The photographic spread consisted of nine photographs of white males of similar age and possessing similar facial characteristics. Bass selected Barrett’s photograph as strongly resembling the robber, although she was not certain of the identification. The day before the trial, Bass was again shown the photographic spread along with the surveillance photographs and two smaller photographs of Barrett before he had shaved his beard and mustache. At trial, she made a positive in-court identification of Barrett.
Convictions based on in-court identification following a pretrial identification by photograph will be set aside where the photographic-identification procedure was so impermissibly suggestive as to give rise to a substantial likelihood of misidentification. Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968). Barrett’s principal contention is that the pretrial photographic spread was so impermissibly suggestive that it tainted Bass’ subsequent in-court identification. Specifically, Barrett asserts that (1) he was the only person in the photographic display wearing dark glasses (the robber had been described as wearing dark glasses); (2) his photograph was one of five in which height lines typical of a booking facility appeared in the background; (3) all the men in the photographic spread were clean-shaven, implicitly indicating that the robber had shaved; and (4) he was the largest person in the photographic spread.
We have examined the photographic spread and agree with both the trial judge’s observation that it was “an extraordinarily fair throwdown,” and his finding that the spread was not impermissibly suggestive. See United States v. Collins, 559 F.2d 561, 563 (9th Cir.), cert. denied, 434 U.S. 907, 98 S.Ct. 309, 54 L.Ed.2d 195 (1977). All the men in the photographic display are remarkably similar in appearance. The only noticeable difference is that Barrett is the only one wearing photosensitive glasses and thus his glasses have a darker tint than those worn by the others. But even this difference is barely noticeable and does not serve to single out Barrett from the others.
Moreover, even if there were some suggestiveness in the photographic-spread identification, we find that Bass’ in-court identification was sufficiently reliable to justify its admission. The reliability of an in-court identification is the linchpin in determining its admissibility. Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977); United States v. Field, 625 F.2d 862, 866 (9th Cir.1980). The Supreme Court has identified five factors among the totality of the surrounding circumstances that we must consider in assessing the reliability of the identification testimony. They are:
1. [t]he opportunity of the witness to view the criminal at the time of the crime,
2. the witness’ degree of attention,
3. the accuracy of the witness’ prior description of the criminal,
4. the level of certainty demonstrated by the witness at the [pretrial] confrontation, and
5. the length of time between the crime and the [pretrial] confrontation.
Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 382, 34 L.Ed.2d 401 (1972); United States v. Field, 625 F.2d at 866. These five indicia of reliability must be balanced by the reviewing court against the corrupting effect of the suggestive pretrial identification procedure to determine whether the in-court identification should have been admitted. Manson v. Brathwaite, 432 U.S. at 114, 97 S.Ct. at 2253; United States v. Field, 625 F.2d at 866.
Applying the five-factor analysis to the facts of the present case, we find that Bass had a good opportunity to view the robber at the time of the crime. She was the victim of the robbery and testified that she had taken a long look at the robber during the robbery. Being the target of the robbery, her degree of attention was undoubtedly high. Her actions in giving the robber two clips of bait bills, one containing a dye pack and the other activating the surveillance camera, demonstrates her alertness at the time of the robbery. Bass’ prior description of the robber was detailed and fairly accurate. She correctly described the robber as a white male, about 55 to 60, about six feet tall, stout with a baker’s belly, wearing a red baseball cap,' green sweater, jeans, and horn-rimmed glasses. Only her description of the robber’s shirt was incorrect. Although her level of certainty in identifying Barrett at the pretrial photographic spread was not high, she did select Barrett from among nine similar photographs. Finally, the length of time between the robbery and Bass’ pretrial photographic-spread identification was only two weeks.
Weighing these five strong indicia of reliability against the minimal suggestiveness of the pretrial photographic spread, we are convinced that Bass’ in-court identification was sufficiently reliable to justify its admission.
2. Lemon’s Lay-Opinion Identification
As part of her testimony at trial, Lemon, Barrett’s girl friend, identified Barrett as the person in the bank surveillance photograph. Barrett argues that the admission of this testimony violated Fed.R.Evid. 701(b) which limits lay-opinion testimony to that which is “helpful to ... the determination of a fact in issue.” Barrett contends that any need for Lemon’s lay-opinion identification was totally obviated by the fact that the jury had before it two photographs of Barrett with a beard and mustache as well as Barrett himself to compare against the surveillance photographs. He therefore claims that Lemon’s lay-opinion identification was not helpful to the determination of the identification issue.
We disagree. Barrett, like the robber in the surveillance photograph, had a full beard and mustache around the time of the robbery. Since that time, his appearance had substantially changed as he was clean-shaven during the trial. We find that in view of Lemon’s intimate acquaintance with Barrett when he had a beard and mustache, and the subsequent change in his appearance, Lemon’s lay-opinion identification of Barrett was helpful to the determination of the identification issue as required by Rule 701. See United States v. Borrelli, 621 F.2d 1092, 1095 (10th Cir.) (lay-opinion identification admissible under Rule 701 where defendant’s appearance had significantly changed since time of robbery), cert. denied, 449 U.S. 956, 101 S.Ct. 365, 66 L.Ed.2d 222 (1980).
We will not disturb the trial court’s discretion to admit lay-opinion testimony under Rule 701 absent clear abuse. United States v. Butcher, 557 F.2d 666, 670 (9th Cir.1977). We find no abuse of discretion in the trial court’s admission of Lemon’s lay-opinion identification under Rule 701.
Barrett also argues that the admission of Lemon’s testimony violated Fed.R. Evid. 403 because its probative value was substantially outweighed by the danger of unfair prejudice. We again apply the abuse-of-discretion standard of review, United States v. Hobson, 519 F.2d 765, 771 (9th Cir.), cert. denied, 423 U.S. 931, 96 S.Ct. 283, 46 L.Ed.2d 261 (1975), and find Barrett’s unfair-prejudice claim to be without merit.
3. Admission of Statements Made by Barrett
At trial, FBI Special Agent Renning testified to statements Barrett had made while being questioned about the robbery. Renning testified that Barrett said that he spent the major portion of the afternoon of June 5th, the date of the robbery, preparing for a fishing trip and that he shaved off his beard and mustache on June 4th, the day before the robbery. Barrett contends that these statements should have been suppressed because they were obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
We disagree. The trial court held a pretrial suppression hearing to determine the admissibility of the challenged statements. The trial'court heard conflicting testimony from FBI agents Stewart and Renning on the one hand and Barrett on the other. While acknowledging the difference in testimony, the court found that Barrett had his Miranda rights read to him in full. The court further found that Barrett was not in custody nor under arrest when he made the statements.
Findings of fact made at a suppression hearing will not be disturbed on appeal unless clearly erroneous. United States v. Botero, 589 F.2d 430, 433 (9th Cir.1978), cert. denied, 441 U.S. 944, 99 S.Ct. 2162, 60 L.Ed.2d 1045 (1979). In making its findings, the trial court credited the testimony of FBI agents Stewart and Renning over that of Barrett. This credited testimony provides support for the trial court’s findings. We therefore hold that the factual finding of the trial court that Barrett was read his Miranda rights is not clearly erroneous and is entitled to our acceptance on appeal. See United States v. Coletta, 682 F.2d 820, 825 (9th Cir.1982), cert. denied, - U.S. , 103 S.Ct. 1187, 75 L.Ed.2d 433 (1983); United States v. Dufur, 648 F.2d 512, 514 (9th Cir.1980), cert. denied, 450 U.S. 925, 101 S.Ct. 1378, 67 L.Ed.2d 355 (1981).
Applying the facts found by the district court, we conclude that Barrett’s Miranda rights were not violated and that his statements were properly admitted. We do not reach the question of whether Barrett was not in custody at the time he made the statements, and thus was not entitled to any Miranda protection, Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 714, 50 L.Ed.2d 714 (1977). Even assuming he was in custody and entitled to Miranda protection, he was advised of his rights under Miranda and waived them.
III. Conclusion
We find that the trial court’s denial of the continuance was error but, under the circumstances of this cáse, the error was harmless. We also find that the trial court did not err in admitting the testimony of government witnesses challenged by Barrett on appeal. However, because we believe that the trial judge abused its discretion in failing adequately to investigate the “sleeping”-juror question, we remand the case for a hearing on this matter. We retain jurisdiction of this case pending receipt of the trial judge’s findings and conclusions, along with a copy of the hearing transcript, on the “sleeping”-juror question.
. Lemon, who was living with Barrett at the time of the robbery, turned over both the clothes and gun to the FBI after being approached by them.
. See supra note 1.
. Candice Philbrick, payroll clerk for Hoffman Construction Company, later testified that Barrett was not employed by the company on the date of the robbery.
. Smerick’s examination actually involved a three-way comparison between Barrett’s clothes, the surveillance photograph, and photographs taken of an FBI agent modeling Barrett’s clothes in a posture similar to that held by the robber in the surveillance photograph.
. It is significant to note that Barrett’s requests for a continuance did not allege a need to secure a photographic expert to establish his innocence. His requests were based on the need to secure an expert to assist him in preparing for cross-examination and rebuttal of the Government’s expert. Barrett first expressed his desire for a photographic expert only after the Government had notified him of its intent to call one.
. Although the court’s error in denying the continuance impeded defense counsel’s ability to prepare for trial, it cannot be said that the error implicated the constitutional right to cross-examination. Sixth amendment rights may be violated by less than a complete denial of cross-examination, but this case does not involve a sufficient diminution of the right to come within the constitutional protection. The scope of cross-examination was not directly curtailed; defense counsel had a full opportunity to question the government’s expert witness. Counsel received the government’s report before trial. See United States v. Jordan, 466 F.2d 99 (4th Cir. 1972), cert. denied, 409 U.S. 1129, 93 S.Ct. 947, 35 L.Ed.2d 262 (1973), United States v. Hernandez, 608 F.2d 741 (9th Cir. 1979). Because no constitutional rights were violated in this case, we apply the nonconstitutional harmless error standard of review.
. It is important to note that the Government did not emphasize the photographic expert’s testimony during closing argument and instead invited the jurors, with their own eyes, to compare the surveillance photographs with the clothes that were seized from Barrett by the FBI.
. We have examined the actual surveillance photographs and found them surprisingly well-focused and clear in detail. The general features of the robber’s face and body as well as the details of his clothes, such as the placement of buttons on his sweater and shirt, are discernible.
. After the robbery, Bass described the robber to the police as a white male, 55-60, about six feet tall, stout with a baker’s belly, wearing a red baseball cap, a green sweater, jeans, and a red shirt. Only the description of the shirt, which was plaid, was mistaken.
. The record does not show exactly what was said by the juror.
. Although we do not question the good faith of the trial judge, we also place some significance on the fact that the trial judge did not assert his knowledge that no juror had been asleep when the question was first raised, but only asserted this knowledge after the jury had returned a verdict of guilty.
. The record demonstrates that the trial judge believed that he had no authority to substitute an alternate for the alleged sleeping juror absent a stipulation by both parties. Because of this belief, the judge may have concluded that once the Government refused to stipulate to the substitution, any hearing or other investigation into the “sleeping”-juror question would have been meaningless. We note that if the trial judge’s decision not to conduct a hearing or investigation was based on his belief that he had no independent authority to substitute an alternate juror for a sleeping juror, the decision was based on an erroneous premise. Under Rule 24(c) of the Federal Rules of Criminal Procedure, a trial judge has the independent authority to order such a substitution. United States v. Smith, 550 F.2d 277, 285-86 (5th Cir.), cert. denied, 434 U.S. 841, 98 S.Ct. 138, 54 L.Ed.2d 105 (1977); United States v. Cameron, 464 F.2d 333, 334-35 (3d Cir.1972).
. We have previously stated that even if the allegations of juror misconduct are found to be true, the inquiry does not end there because not every incident of juror misconduct requires a new trial. United States v. Hendrix, 549 F.2d 1225, 1229 (9th Cir.), cert. denied, 434 U.S. 818, 98 S.Ct. 58, 54 L.Ed.2d 74 (1977). The court must determine whether the resulting prejudice amounted to a deprivation of the fifth amendment due-process or sixth amendment impartial-jury guarantees. Id. Therefore, even if the juror in the present case is found to have been asleep during portions of the trial, a new trial may not be required if he did not miss essential portions of the trial and was able fairly to consider the case.
. Barrett also challenges the admission of the testimony of the Government’s photographic expert, Smerick, regarding the detailed similarities between Barrett’s seized clothing and that worn by the robber in the surveillance photograph. In discussing the denial of Barrett’s motion for continuance, we have already stated that even assuming that Smerick’s testimony was inadmissible, the admission of his testimony would be harmless error. We thus need not spend an extended period of time discussing the admissibility of Smerick’s testimony. We find that if viewed independent of the denial of the continuance, the trial court’s admission of Smerick’s testimony was entirely proper.
Barrett argues that the trial court’s admission of Smerick’s testimony violated Fed.R. Evid. 702 which provides that an expert may not testify unless his or her specialized knowledge will “assist the trier of fact to understand the evidence or determine a fact in issue.” Barrett asserts that Smerick’s testimony added nothing to the jury’s own ability to compare the seized clothing with the clothing in the surveillance photographs. Ke therefore contends that the trial court erred in finding that Smerick’s testimony would assist the trier of fact within the meaning of Rule 702.
We disagree. The trial court’s discretion to admit expert testimony under Rule 702 may not be disturbed on appeal absent clear abuse. United States v. Brown, 501 F.2d 146, 149 (9th Cir.1974), rev’d in part on other grounds sub nom. United States v. Nobles, 422 U.S. 225, 95 S.Ct. 2160, 45 L.Ed.2d 141 (1975). Smerick testified to similarities between the tonal condition, style and placement of buttons, stripes, and stains found on the seized clothing and the clothing in the surveillance photographs. We cannot say that the trial court abused its discretion in finding that the testimony was sufficiently detailed to assist the trier of fact within the meaning of Rule 702. See United States v. Collins, 559 F.2d 561, 565 (9th Cir.), cert. denied, 434 U.S. 907, 98 S.Ct. 309, 54 L.Ed.2d 195 (1977).
Barrett#-additionally argues that the trial court erred in failing to grant a mistrial when Smerick exceeded the limits imposed by the pretrial order by testifying on the ultimate issue of the identity between the clothes seized from Barrett and the clothes in the surveillance photograph. This argument is also without merit. Expert testimony on an ultimate fact is permitted under Fed.R.Evid. 704. Although the Government had voluntarily agreed that Smerick would not testify on the ultimate issue of whether the seized clothes and clothes in the surveillance photograph were identical, the trial court, in the absence of this self-imposed limitation, would not have required it. Moreover, the trial court gave the jury a curative instruction immediately after Smerick’s improper testimony was made. Under these circumstances, we find that the trial court correctly determined that Smerick’s improper testimony on the ultimate issue did not warrant a mistrial.
. Barrett also argues on appeal that
Question: From which district in the state was this case appealed?
A. Not applicable
B. Eastern
C. Western
D. Central
E. Middle
F. Southern
G. Northern
H. Whole state is one judicial district
I. Not ascertained
Answer:
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songer_appfed
|
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 "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
PORTER, Adm’r, Office of Price Administration, v. McCOLLOCH, Judge.
No. 11024.
Circuit Court of Appeals, Ninth Circuit.
March 21, 1946.
Herbert H. Bent, Jacob Chaitkin, and Austin Clapp, Attys., OPA, all of San Francisco, Cal., for petitioner.
S. J. Graham, William M. Langley, and John M. Hickson, all of Portland, Or., for respondent.
C. M. Gould and Hill, Morgan & Farrar, all of Los Angeles, Cal., and Reuben G. Lenske, of Portland, Or., for A. G. E. Abendroth.
Before STEPHENS, FIEALY, and BONE, O'rcuit Judges.
PER CURIAM.
This proceeding is an outgrowth of our decision in Bowles, Administrator, v. Abendroth, 9 Cir., 151 F.2d 407, in which we reversed an order of the district court denying an application of the Administrator, made pursuant to § 202(c) of the Price Control Act, 50 U.S.C.A.Appendix, § 922(c), for the enforcement of a subpena. As appeared on the face of the application and supporting' papers, the subpena had been issued over the signature of James F. Brownlee, Acting Price Administrator of the Office of Price Administration. No question was raised concerning Brownlee’s authority in the premises. We decided that on the showing made it was the duty of the district court to grant the application.
Mandate was issued commanding the taking of further proceedings in the cause by the district court in accordance with our opinion and decree. Thereafter the Administrator, Petitioner here, submitted to Honorable Claude McColloch, judge of the district court, a proposed order responsive to the mandate. The judge, however, on the supposed authority of Cudahy Packing Co. v. Holland, 315 U.S. 357, 62 S.Ct. 651, 86 L.Ed. 895, declined to make any order enforcing compliance with the subpena in view of the fact that it had been issued over the signature of the Acting Price Administrator rather than the Price Administrator, Chester Bowles. Instead an order was entered denying the enforcement application for want of jurisdiction.
The Administrator petitioned this court for a writ of mandamus commanding the district judge to comply with our decree. An order to show cause was issued, and the matter is before us on the petition of the Administrator and the return of the Respondent judge.
The law of the case requires the granting of the writ petitioned for. No new facts were before the district court after mandate went down. The court was not, as it appears to have thought, without jurisdiction to proceed. Questions, if any, concerning the authority of the Acting Price Administrator to issue the subpena were waived by the failure timely to raise them. It is not now open to the Respondent to question the mandate.
Some claim is made that the desired inspection has already been had and that the proceeding is therefore moot. This was not a ground of the trial judge’s decision, and there is no sufficient basis for the suggestion of mootness.
Since the views here expressed will serve to remove the obstacles to enforcement thought by Respondent to exist, we assume that the writ need not formally issue at this time. Instead, the clerk is directed to furnish certified copies of this opinion to the Respondent and to the Clerk of the District Court of Oregon for Respondent’s information and guidance.
The subpena was denominated an “inspection requirement.”
Question: What is the total number of appellants in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number.
Answer:
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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
James BARRETT, Petitioner, Appellant, v. UNITED STATES of America, Respondent, Appellee.
No. 91-1568.
United States Court of Appeals, First Circuit.
Heard Jan. 10, 1992.
Decided June 8, 1992.
Kenneth J. King with whom Fenn & King, Jamaica Plain, was on brief, for petitioner, appellant.
Margaret D. McGaughey, Asst. U.S. Atty., with whom Richard S. Cohen, U.S. Atty., Portland, Me., was on brief, for respondent, appellee.
Before TORRUELLA, Circuit Judge, BOWNES, Senior Circuit Judge, and CYR, Circuit Judge.
CYR, Circuit Judge.
James W. Barrett [hereinafter “petitioner”] appeals the dismissal of a motion to vacate or set aside his conviction and sentence for an armed bank robbery which occurred in Portland, Maine, in 1975. Petitioner asserts four grounds for relief: (1) a Jencks Act claim, see 18 U.S.C. § 3500; (2) a Brady claim, see Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); (3) a Sixth Amendment ineffective assistance claim; and (4) an alleged entitlement to a new trial based on newly discovered evidence. We affirm the district court judgment.
I
BACKGROUND
Three armed men wearing ski masks robbed the Lunts Corner Branch of the Northeast Bank in Portland, Maine, on October 4, 1975, and made their getaway. At trial, some nine years later, petitioner denied any involvement in the robbery. The chief prosecution witness, Joseph Aceto, testified that he and the petitioner entered the bank with codefendant Raymond Le-vasseur, while a fourth individual, code-fendant Thomas Manning, waited in the getaway car. At the time of petitioner’s trial, Levasseur and Manning were fugitives. The trial “ultimately turned on the relative credibility of Aceto and [petitioner],” United States v. Barrett, 766 F.2d 609, 612 (1st Cir.), cert. denied, 474 U.S. 923, 106 S.Ct. 258, 88 L.Ed.2d 264 (1985), which is the principal focus of the present appeal as well.
II
DISCUSSION
Petitioner challenges the dismissal of the section 2255 petition without an evidentiary hearing. Petitioner was required to demonstrate to the district court, by a preponderance of the evidence, not only an entitlement to section 2255 relief but entitlement to an evidentiary hearing. Myatt v. United States, 875 F.2d 8, 11 (1st Cir.1989); United States v. DiCarlo, 575 F.2d 952, 954 (1st Cir.), cert. denied, 439 U.S. 834, 99 S.Ct. 115, 58 L.Ed.2d 129 (1978). An evi-dentiary hearing is not required where the section 2255 petition, any accompanying exhibits, and the record evidence “plainly [reveal] ... that the movant is not entitled to relief....” Rule 4(b), Rules Governing Section 2255 Proceedings. See Dziurgot v. Luther, 897 F.2d 1222, 1225 (1st Cir.1990). As we have explained on previous occasions, summary dismissal is appropriate when the section 2255 petition “ ‘(1) is inadequate on its face, or (2) although facially adequate, is conclusively refuted as to the alleged facts by the files and records of the case.’ ” DiCarlo, 575 F.2d at 954 (quoting Moran v. Hogan, 494 F.2d 1220, 1222 (1st Cir.1974)). Thus, the petition is subject to dismissal, without an evidentiary hearing, if the grounds for relief either are not cognizable under section 2255 or amount to mere “bald” assertions without sufficiently particular and supportive allegations of fact. Moran, 494 F.2d at 1222. Alternatively, even a section 2255 petition predicated on specific assertions of fact allegedly supported in the record may be dismissed summarily by the district court since “only [the] district court know[s] definitely, without a hearing, whether the petitioner’s facially adequate supporting allegations are in fact untrue,” id. at 1222 n. 1, and “the district court can often ‘test’ the adequacy of accompanying factual allegations by assuming arguendo their truth, and then assessing their sufficiency in light of the relevant constitutional standards and the record,” id. at 1222. As we have observed, “if [petitioner’s] claim is based upon facts with which the trial court, through review of the record or observation at trial, is familiar, the court may make findings without an additional hearing, and, as is the ease for findings of the trial court generally, those findings will not be overturned unless they are clearly erroneous.” Panzardi-Alvarez v. United States, 879 F.2d 975, 985 n. 8 (1st Cir.1989) (quoting DiCarlo, 575 F.2d at 954-55), cert. denied, 493 U.S. 1082, 110 S.Ct. 1140, 107 L.Ed.2d 1045 (1990).
1. Jencks Act Claim
On June 11, 1990, petitioner filed a pro se motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255. More than five months later, through appointed counsel, petitioner filed an amended habeas petition, alleging, inter alia, that the government had suppressed evidence at trial, including a verbatim transcript of an interview of Joseph Aceto conducted in Arkansas approximately two months before trial by FBI Agent Crate in the presence of Assistant United States Attorney (“AUSA”) Mark Terison, the prosecutor at petitioner’s trial. The amended section 2255 petition alleged that the failure to provide the verbatim interview transcript violated the government’s duty to disclose exculpatory information under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Petitioner demanded an evidentiary hearing and the disqualification of AUSA Terison.
The government responded to the amended habeas petition on January 4, 1991. On February 19, 1991, petitioner filed “Plaintiffs Motion for Leave to File a Brief Reply Memorandum,” asserting that “several legal arguments and factual assertions raised by the government ... require a response from plaintiff.” (emphasis added). The district court granted the motion. Instead of filing a “brief reply memorandum,” however, on February 22, 1991, more than eight months after the filing of the original habeas petition, petitioner filed “Plaintiffs Reply to Government’s Response to His 28 U.S.C. § 2255 Motion,” raising a Jencks Act claim for the first time. The government did not respond to petitioner’s Jencks Act claim prior to the district court’s denial of habeas relief on April 30, 1991. The district court order dismissed the amended petition, without an evidentiary hearing and without alluding to the Jencks Act claim. See Barrett v. United States, 763 F.Supp. 658 (D.Me.1991).
An unsigned and undated motion purportedly submitted by petitioner’s counsel was docketed in the district court on May 24, 1991, requesting reconsideration of the April 30 dismissal order on the ground that the district court had not addressed the Jencks Act claim. On May 31, 1991, petitioner filed a notice of appeal from the April 30 dismissal order. On June 6, 1991, petitioner’s May 24 motion to reconsider was stricken by the district court, as it was unsigned. See Fed.R.Civ.P. 7(b)(3) (“All motions shall be signed in accordance with Rule 11.”); Fed.R.Civ.P. 11 (“If a ... motion ... is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the ... movant.”); see also D.Me.L.R. 1(b), 3(d)(1). Thereafter, petitioner filed two further motions for reconsideration, which the district court denied. We turn to the resultant procedural snarl.
Treated as Rule 59(e) motions, all three motions for reconsideration were untimely. See Fed.R.Civ.P. 59(e). The ten-day time bar under Rule 59(e) is jurisdictional. Rivera v. M/T Fossarina, 840 F.2d 152, 154 (1st Cir.1988) (“ten-day limitation period of Rule 59(e) ‘is one of the few limitary periods which the court has no power to enlarge’ ”) (quoting Scola v. Boat Frances R., Inc., 618 F.2d 147, 155 (1st Cir.1980). As the first motion to reconsider the April 30 order was not even submitted until May 24, it was untimely, as were those which followed.
Alternatively, were we to treat the three motions for reconsideration as having been timely filed under Rule 60(b)(1), see Fed.R.Civ.P. 60(b)(1) (motion may be made within a reasonable time, not more than one year), petitioner would fare no better, since the district court orders denying the motions were never appealed.
Furthermore, as a practical matter, petitioner’s failure to raise the Jencks Act claim in a timely manner below precludes effective appellate review on the merits. See Dziurgot, 897 F.2d at 1224 (claim not raised in § 2255 motion will not be reviewed on appeal); cf. United States v. Valencia-Copete, 792 F.2d 4, 5 (1st Cir.1986) (direct appeal). Additionally, we would note, without deciding, that the Jencks Act claim may not be cognizable under section 2255 in any event, by virtue of the recognized rule that nonconstitutional claims may not be presented in a section 2255 proceeding unless “the claimed error of law [represents] ‘a fundamental defect which inherently results in a complete miscarriage of justice.’ ” Fasano v. Hall, 615 F.2d 555, 557 (1st Cir.) (quoting Davis v. United States, 417 U.S. 333, 345, 94 S.Ct. 2298, 2302, 41 L.Ed.2d 109 (1974)), cert. denied, 449 U.S. 867, 101 S.Ct. 201, 66 L.Ed.2d 86 (1980); see United States v. Addonizio, 442 U.S. 178, 99 S.Ct. 2235, 60 L.Ed.2d 805 (1979) (discussing rationale for restrictions on collateral attacks against criminal convictions); United States v. Capua, 656 F.2d 1033, 1037 (5th Cir.1981) (§ 2255 proceeding distinguishing between cognizability of “constitutional or jurisdictional errors on the one hand, and mere errors of law on the other,” and adverting to Davis criteria for identifying “mere errors of law”); see also Wilson v. United States, 554 F.2d 893, 894 (8th Cir.) (en banc) (Jencks Act claim not cognizable under § 2255), cert. denied, 434 U.S. 849, 98 S.Ct. 158, 54 L.Ed.2d 117 (1977); Lindhorst v. United States, 585 F.2d 361, 366 (8th Cir.1978) (same).
2. The Brady Claims
a) Expectations of Lenity
Petitioner asserts that the government suppressed documentary evidence indicating that Aceto may have expected lenient treatment on an Arkansas murder charge in return for testimony against petitioner on the federal charge for armed bank robbery. Petitioner argues that the government deprived him of important impeachment evidence against Aceto.
Prosecutorial nondisclosure of exculpatory evidence does not assume unconstitutional dimensions unless the undisclosed evidence is “material ... to guilt or to punishment_” Brady, 373 U.S. at 87, 83 S.Ct. at 1197. “Since impeachment evidence is ‘exculpatory’ under Brady, ... the question we ask in a prosecutorial nondisclosure setting is ‘whether the omitted evidence is of sufficient materiality to call for a new trial.’ ” United States v. Sanchez, 917 F.2d 607, 617 (1st Cir.1990) (quoting United States v. Imbruglia, 617 F.2d 1, 4 (1st Cir.1980), cert. denied, — U.S.-, 111 S.Ct. 1625, 113 L.Ed.2d 722 (1991)). The materiality test under Brady is not met unless the nondisclosure of the evidence “undermine[s] confidence in the outcome of the trial,” United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481 (1985), which can occur only if “there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Id. at 682, 105 S.Ct. at 3383 (emphasis added); Sanchez, 917 F.2d at 617 (Bagley prescribes “uniform standard of materiality for general application in all nondisclosure cases”).
The district court denied petitioner’s initial request to cross-examine Aceto at trial about the pending Arkansas murder indictment, on the ground that there was no sufficient factual basis for finding that the probative value of the untried murder indictment would outweigh substantially the severe risk of unfair prejudice. See Fed.R.Evid. 608(b)(1) (whether to permit inquiry into specific instance of conduct, other than conviction of crime, for purpose of proving witness’ truthfulness or untruthfulness, is addressed to “the discretion of the court”); see also 3 Weinstein’s Evidence, ¶ 608[05] (1991) (courts may apply Rule 403 safeguards under Rule 608(b)); Fed.R.Evid. 403 (evidence may be excluded “if its probative value is substantially outweighed by the danger of unfair prejudice”). Nevertheless, shortly thereafter, at “considerable expense and trouble to the court and government,” Barrett, 766 F.2d at 615, the district court recalled Aceto expressly to permit petitioner’s trial counsel to demonstrate, on voir dire, a reasonable basis for the claim that Aceto expected to “benefit in connection with his ... homicide prosecution as a result of his testimony in [petitioner’s] case.” Yet, after eliciting the admission that there was a murder indictment pending against Aceto, petitioner’s trial counsel “suddenly gave up,” id., and abandoned all further interrogation of Aceto on voir dire. After several unsuccessful efforts to encourage defense counsel to pursue the inquiry further, the district court excused Aceto. On direct appeal, it was held that petitioner’s trial counsel had been given “ample opportunity to make a record from which he could argue that the witness was biased because of a particular hope or expectation,” Barrett, 766 F.2d at 615 (citing United States v. Tracey, 675 F.2d 433, 439 (1st Cir.1982)), but that petitioner had “failed ... to establish ... why inquiry into this most prejudicial matter should be made before the jury.” Id.
The claim presently before the court closely tracks the claim rejected on direct appeal. We consider whether, but for the government’s nondisclosure of the Terison memorandum and the related documents, petitioner would have been allowed to inquire into the Arkansas murder charge at trial and, if so, whether there is. a reasonable probability that the jury would Have acquitted petitioner. Bagley, 473 U.S. at 678, 105 S.Ct. at 3381. Petitioner relies primarily on a January 24, 1984 file memorandum prepared by AUSA Terison. The Terison memorandum states, in pertinent part:
On or about January 18, 1984 I talked to Tommy Brown who is a state of Arkansas prosecutor responsible for the murder prosecution of Joseph Aceto.... Brown also said that his case against Aceto was not a rock solid one and that both he and Aceto may be interested in reaching some sort of plea arrangement whereby Aceto would agree to come to Maine to testify in the Barrett case.
(Emphasis added).
(i) Materiality of Undisclosed Documents
The present claim must fail unless the Terison memorandum and the related documents, alone or in combination with the evidence admitted at trial, would have facilitated petitioner’s voir dire examination of Aceto sufficiently to have enabled establishment of the required predicate for a reasonable belief that Aceto expected favorable treatment from the Arkansas prosecutor in return for testimony against petitioner on the federal charge. In other words, the petitioner must demonstrate that the undisclosed documents contained either admissible evidence, or inadmissible information, with which petitioner would have been able to demonstrate to the district court that he was entitled to an evi-dentiary hearing on the section 2255 petition.
The only portion of the Terison memorandum even arguably probative of Aceto’s state of mind — the Arkansas prosecutor’s statement to Terison that Aceto might be interested in a plea agreement — would not have been admissible as evidence of the matter asserted, as it constituted compound hearsay; that is, Terison’s assertion as to what Brown stated might interest Aceto. At most, as the district court noted, access to the Terison memorandum might have prompted further interrogation of Aceto as to whether the Terison memorandum was based on expressions of interest on the part of Aceto, or only on the hopes of the Arkansas prosecutor. Yet at trial petitioner insistently refused the clear opportunity, indeed the explicit invitation, see supra note 9, to interrogate Aceto on voir dire concerning any benefit he hoped for, or expected, in return for testimony against petitioner.
The entire purpose of the voir dire examination, as all concerned well understood, was to afford petitioner an opportunity to demonstrate a factual predicate for inferring that Aceto expected favorable treatment in connection with the pending murder indictment in return for his testimony against petitioner. On voir dire, without the benefit of the Terison memorandum or the related documents, petitioner’s trial counsel elicited the information that a murder indictment was pending against Aceto. Nevertheless, despite the fact that the admission of the murder indictment depended upon the establishment of some evidence as to Aceto’s state of mind on the subject, or some other reasonable evidentiary basis for inferring the existence of a connection between Aceto’s testimony against petitioner and an expectation, understanding, or agreement concerning lenient treatment on the murder charge, Aceto was “never asked the critical question whether the government had made any agreements with respect to the pending charge or whether Aceto had some hope of leniency with respect thereto.” Barrett, 766 F.2d at 615. Notwithstanding the district court’s earnest efforts, petitioner’s trial counsel relinquished the opportunity to examine Aceto concerning any agreement or understandings which may have been reached, or any hopes Aceto may have harbored, in connection with his testimony against petitioner. The government’s belated disclosure of the Terison memorandum and the related documents cannot efface petitioner’s plain election to abandon any direct inquiry as to Aceto’s hopes or expectations for leniency.
The information in the Terison memorandum and the related documents is entirely cumulative of the evidence available to petitioner at voir dire; that is, principally, the pending murder indictment and Aceto's appearance as a witness for the prosecution at petitioner’s federal trial. At voir dire, petitioner knew about the pending murder indictment against Aceto, and petitioner had been provided with the Form 302 interview summary which revealed that a “Thomas Brown, Prosecutor’s Office,” participated in the Aceto interview. Moreover, the Form 302 provided to petitioner plainly revealed itself as a redacted version of the original Form 302, in that it exhibited a large blank space between Brown’s name and the ensuing designation that Brown was a prosecutor — located in the most likely place for a designation of Brown’s full title. Yet, despite this information, petitioner’s trial counsel never asked Aceto whether Prosecutor Brown had anything to do with the pending murder indictment against Aceto. We believe the record reveals an abiding tactical reluctance to learn whether the obvious redaction in the Form 302 provided to petitioner was pertinent to his defense.
Petitioner offers no nonspeculative ground whatever for concluding that the undisclosed cumulative evidence would have spurred further inquiry into Aceto’s state of mind, let alone a more fruitful inquiry. Accordingly, we conclude that the unavailability of the cumulative impeachment evidence contained in the Teri-son memorandum, and related documents, did not affect the outcome of the trial. Bagley, 473 U.S. at 678, 105 S.Ct. at 3381.
b) Aceto’s Mental State
Petitioner claims that the government withheld four documents wherein Aceto is diagnosed as a paranoid schizophrenic who was receiving personal messages via radio and television. As the district court stated, and this court observed on direct appeal, an abundance of damning impeachment evidence was adduced at trial as to Aceto’s mental instability. See also supra note 14. Given all the “damaging [trial] evidence concerning Aceto’s mental status,” see Barrett, 766 F.2d at 615-16, we see no reason to disturb the district court finding, see Barrett, 763 F.Supp. at 664, that there is no reasonable probability that the cumulative impeachment evidence in these undisclosed diagnoses would have affected the outcome of the trial. See Bagley, 473 U.S. at 678, 105 S.Ct. at 3381.
3. Ineffective Assistance Claim
Petitioner claims that trial counsel’s representation was so deficient as to amount to a denial of his Sixth Amendment right to the effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In response to an inquiry from counsel, petitioner testified on direct examination that he shot a person in self-defense in 1963 and spent thirteen years in prison before the conviction was vacated. The government responded by introducing the death certificate, which indicated that the victim had been shot in the back.
Petitioner must demonstrate that the alleged deficiencies in professional performance assumed unconstitutional dimensions and resulted in prejudice “so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. Strickland cautions reviewing courts to “indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance ... ‘considered to be sound trial strategy ... [,]’ ” id. at 689, 104 S.Ct. at 2065 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 164, 100 L.Ed. 83 (1955)), and that “strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.” Id. at 690, 104 S.Ct. at 2066 (emphasis added). Thus, “a defendant must allege and demonstrate that his counsel’s error clearly ‘resulted from neglect or ignorance rather than from informed, professional judgment.’ ” United States v. Bosch, 584 F.2d 1113, 1121 (1st Cir.1978) (quoting Marzullo v. Maryland, 561 F.2d 540, 544 (4th Cir.1977), cert. denied, 435 U.S. 1011, 98 S.Ct. 1885, 56 L.Ed.2d 394 (1978)) (emphasis added); see United States v. Natanel, 938 F.2d 302, 309 (1st Cir.1991) (citing Bosch) (defendant bears burden of demonstrating deficient performance; performance standard is “to be applied not in hindsight, but based on what the lawyer knew, or should have known, at the time his tactical choices were made and implemented”), cert. denied, — U.S.-, 112 S.Ct. 986, 117 L.Ed.2d 148 (1992).
We note at the outset that petitioner does not advance the contention that counsel’s trial strategy resulted from any failure to conduct a “thorough investigation of law and facts,” see Strickland, 466 U.S. at 690, 104 S.Ct. at 2064, but merely that introduction of petitioner’s self-defense testimony was not a “plausible option.” Id. Petitioner’s failure to allege, see Bosch, 584 F.2d at 1121, let alone demonstrate, see id., that counsel’s tactical decision “resulted from neglect or ignorance,” id., effectively insulates counsel’s choice among plausible options from successful collateral challenge in the present circumstances. Strickland, 466 U.S. at 690, 104 S.Ct. at 2066.
As noted on direct appeal, see Barrett, 766 F.2d at 618, trial counsel advanced two reasons for inquiring into petitioner’s 1963 murder conviction, and both were plausible. The principal aim of the self-defense initiative was to establish that petitioner’s fugitive status following the armed bank robbery for which he was on trial “was not, as the government would have it, [evidence of petitioner’s] guilt, but ... of [petitioner’s] lack of faith in the justice system.” Id. The second purpose, as articulated by the district court and acknowledged by defense counsel, was to establish petitioner’s credibility as a witness and “explain[ ] the fact that he was previously in prison.” Id. Thus, as the district court ruled, the decision to apprise the jury of the petitioner’s invalid murder conviction rather clearly represented a calculated defense tactic. The district court explained:
The Court cannot find that counsel’s decision to introduce the self-defense issue was constitutionally unreasonable. Petitioner concedes that the decision was tac-tical_[c]ounsel could well have decided that the jury would be more sympathetic to Petitioner if it heard the details of the killing from him. Such a decision is indeed strategic and, in the context of this most thoroughly-prepared trial, unchallengeable.
Barrett, 763 F.Supp. at 664-65 (emphasis added). Therefore, we cannot conclude that counsel’s decision to pursue this strategic initiative amounted to ineffective assistance.
4. Newly Discovered Evidence
Finally, petitioner points to newly discovered evidence as grounds for an evi-dentiary hearing and a new trial. Code-fendants Thomas Manning and Raymond Levasseur, unavailable at the time of petitioner’s trial, submitted substantively identical affidavits which flatly attest: I did not rob the Northeast Bank in Portland, Maine with James Barrett.
We need not determine whether newly discovered evidence is a cognizable ground for obtaining a new trial in proceedings under section 2255, since the present claim cannot succeed in any event. At a minimum, petitioner would be required to meet the conventional criteria for obtaining a new trial on the ground of newly discovered evidence. Cruz-Sanchez v. Rivera- Cordero, 835 F.2d 947, 948 (1st Cir.1987); see Lindhorst v. United States, 658 F.2d 598, 602 (8th Cir.1981) (request for § 2255 relief based on newly discovered evidence reviewable under standards applicable to motion for new trial under Fed.R.Crim.P. 33), cert. denied, 454 U.S. 1153, 102 S.Ct. 1024, 71 L.Ed.2d 309 (1982). Thus, petitioner must show, among other things, that “the new evidence is material and is not merely cumulative or impeaching...” United States v. Benavente-Gomez, 921 F.2d 378, 382 (1st Cir.1990) (emphasis added); United States v. Martin, 815 F.2d 818, 824 (1st Cir.), cert. denied, 484 U.S. 825, 108 S.Ct. 89, 98 L.Ed.2d 51 (1987); see United States v. Rodriguez, 738 F.2d 13, 18 (1st Cir.1984) (on motion for new trial, “[ijmpeachment evidence is presumptively immaterial”); Pelegrina v. United States, 601 F.2d 18, 21 (1st Cir.1979) (“impeaching evidence is generally treated as immaterial” on motion for new trial); United States v. Bonadonna, 775 F.2d 949, 957 (8th Cir.1985) (“newly discovered evidence which is merely impeaching normally cannot form the basis for a new trial”); see generally 3 Charles A. Wright, Federal Practice and Procedure § 557 (1982). Since it does not bear directly on the defendant’s guilt or innocence, “impeachment evidence ... [does] not rise to the level of materiality that would be likely to cause a different result at a new trial.” Benavente-Gomez, 921 F.2d at 383.
The district court summarily may dismiss a section 2255 motion, without an evidentiary hearing, if its claims are inadequate on their face. DiCarlo, 575 F.2d at 974. Therefore, plenary presentation is not required unless the motion “eontain[s] assertions of fact that a petitioner is in a position to establish by competent evidence.” United States v. Aiello, 814 F.2d 109, 113 (2d Cir.1987) (emphasis added); see Dalli v. United States, 491 F.2d 758, 760 (2d Cir.1974) (appellate court views summary dismissal with disfavor if motion was supported by “a sufficient affidavit”) (emphasis in original); cf. Machibroda v. United States, 368 U.S. 487, 495-96, 82 S.Ct. 510, 514-15, 7 L.Ed.2d 473 (1962) (hearing required where it appears reasonably likely that evidence exists which could either corroborate or disprove material. allegations supported by affidavits). Thus, the threshold issue is “whether, if the evidence should be offered at a hearing, it would be admissible proof entitling the petitioner to relief.” Dalli, 491 F.2d at 760 (emphasis added).
Assuming their truth, see Myatt, 875 F.2d at 11, these affidavits assert merely that Manning and Levasseur did not rob the Northeast Bank with Barrett. For the testimony to be admissible in evidence, the putative witness must be shown to have sufficient personal knowledge of the matter at issue. See Fed.R.Evid. 602 (“A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.”); Fed.R.Evid. 104(b); see United States v. Doe, 960 F.2d 221, 223 (1st Cir.1992) (evidence inadmissible unless “ ‘a reasonable trier of fact could believe the witness had personal knowledge’ ”) (quoting Folio Impressions, Inc. v. Byer California, 937 F.2d 759, 764 (2d Cir.1991)); United States v. Sorrentino, 726 F.2d 876, 887 (1st Cir.1984) (affirming district court’s exclusion of testimony because witness lacked personal knowledge concerning subject of testimony); cf. Fed. R.Civ.P. 56(e) (for summary judgment purposes, “affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein”) (emphasis added); Fed.R.Civ.P. 81(a)(2) (Civil Rules applicable in habeas corpus proceedings where practice is not otherwise dictated by statute).
These affidavits present no foundational facts as to the affiants’ personal knowledge. The affidavits assert neither that the affiants were present at the time of the robbery, nor that they were elsewhere with Barrett at the time of the robbery. Although the affidavits state categorically that the affiants did not participate in the bank robbery with petitioner, the affiants do not represent that petitioner did not participate in the bank robbery with others. Thus, their statements do not bear directly on petitioner’s guilt or innocence, but instead constitute cumulative impeachment evidence against Aceto, who testified that Levasseur and Manning, as well as Aceto and the petitioner, robbed the bank. Since petitioner did not demonstrate that the newly discovered evidence would have been admissible at trial, either as alibi evidence or as evidence of the identification of the participants in the bank robbery, neither an evidentiary hearing nor a new
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_fedlaw
|
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 statute, and if so, whether the resolution of the issue by the court favored the appellant.
In the Matter of ALLEN UNIVERSITY, an educational corporation chartered by the State of South Carolina, Debtor.
No. 73-1897.
United States Court of Appeals, Fourth Circuit.
Argued Jan. 9, 1974.
Decided May 16, 1974.
Gerald M. Finkel, Columbia, S. C. (Stanley H. Kohn, Kohn & Finkel, Columbia, S. C., on brief), for appellants.
David W. Robinson, Columbia, S. C. (Robinson, McFadden, Moore & Pope, Columbia, S. C., on brief), for appellees.
Before HAYNSWORTH, Chief Judge, and WINTER and WIDENER, Circuit Judges.
WIDENER, Circuit Judge:
On May 21, 1973, creditors of Allen University filed in the district court a petition under 11 U.S.C. § 526 asking that Allen University be reorganized under the provisions of Chapter X of the Bankruptcy Act, 11 U.S.C. §§ 501-676. The district court dismissed the petition on the basis that, since Allen was not a “moneyed, business, or commercial corporation” within the intendment of 11 U.S.C. § 22(b), an action could not be maintained against it for involuntary reorganization under Chapter X.
In this appeal, petitioners contest both the district court’s holding that an eleemosynary educational corporation may not be the subject of involuntary reorganization under Chapter X of the Bankruptcy Act, and also the court’s finding that Allen University is not a “moneyed, business, or commercial” corporation. We affirm both aspects of the decision of the district court.
Allen University is a nonprofit, eleemosynary educational institution operating a four-year college in Columbia, South Carolina. It is controlled and primarily supported by the African Methodist Episcopal Church of South Carolina. Indeed, a majority of its Board of Trustees is composed of ministers and representatives of this church. The Board is elected by the church conference. The petitioners in this appeal are, for the most part, teachers and employees of Allen University who are owed back wages. They claim that the university is insolvent and has preferentially paid other creditors. They also contend that the normal provisions of Chapter XI of the Bankruptcy Act are not adequate and, consequently, that the university is in need of reorganization under Chapter X in order to continue its educational work and pay its debts.
In Hoile v. Unity Life Ins. Co., 136 F.2d 133, 135 (4th Cir. 1943), we held that the eligibility of a corporation for relief under Chapter X depends in the first instance on its eligibility to be adjudged a bankrupt in ordinary bankruptcy. Thus, voluntary petitions may be filed under Chapter X by corporations which can be adjudicated bankrupt on voluntary petitions; involuntary petitions may be filed against corporations against which involuntary petitions in ordinary bankruptcy can be filed. We see no reason to depart here from our previous holding.
11 U.S.C. § 506, which defines the term “corporation” for the purposes of Chapter X, states that “ ‘corporation’ shall mean a corporation, as defined in this title, which could be adjudicated a bankrupt under this title. . . . ” [Emphasis added.] 11 U.S.C. § 1 provides, for purposes of the Bankruptcy Act, that “[p]ersons shall include corporations except where otherwise specified. . . . ” 11 U.S.C. § 22(a) provides that “[a]ny person, except a municipal, railroad, insurance, or banking corporation or a building and loan association, shall be entitled to the benefits of this title as a voluntary bankrupt.” Thus, under this provision, in a proper case, it would seem an eleemosynary educational institution could be adjudged a bankrupt in a voluntary proceeding.
Because this proceeding is involuntary, however, we must look to subsection (b) of 11 U.S.C. § 22. The statute there provides that “[a]ny natural person, except a wage earner or farmer, and any moneyed, business, or commercial corporation, except a building and loan association, a municipal, railroad, insurance, or banking corporation, owing debts to the amount of $1,000 or over, may be adjudged an involuntary bankrupt upon default or an impartial trial and shall be subject to the provisions and entitled to the benefits of this title.” Consequently, in order to be adjudged an involuntary bankrupt under Chapter XI, or to be involuntarily reorganized under Chapter X, a debtor corporation must fall within the definition of “moneyed, business, or commercial.” Hoile v. Unity Life Ins. Co., 136 F.2d 133 (4th Cir. 1943); accord, In re Michigan Sanitarium & Benevolent Ass’n., 20 F.Supp. 979 (E.D.Mich.1937); contra, In re Maryvale Community Hospital, Inc., 307 F.Supp. 304, 306 n. 4 (D.Ariz.1969), aff’d per curiam, 456 F.2d 410 (9th Cir. 1972).
By judicial interpretation, the phrase “moneyed, business, or commercial corporation” has acquired a meaning which limits it to corporations organized for profit. See Hoile v. Unity Life Ins. Co., 136 F.2d 133, 135 (4th Cir. 1943). Although Allen University has been chartered as a corporation, as the petition alleges, there is neither capital stock in the corporation nor a return of capital to investors outstanding. Indeed the record discloses no investors. Moreover, although it may be true, as the district court found, that the University carries on a number of activities, some of which could, standing alone, be characterized as commercial in nature, including the operation of a day-care center and University apartments, offering of certain printing services to the public, leasing of two houses in Columbia, and the operation of Reed Center in Charleston, these activities are only ancillary to the institution’s main purpose of education. We are of opinion that such ancillary activities do not bring Allen University within the realm of a “moneyed, business, or commercial corporation.”
Accordingly, the district court property sustained the plea to the jurisdiction, and its decision is
Affirmed.
. Accord, 6 Collier on Bankruptcy ¶ 2.07 [2] (14th Ed.1972); 11 Remington on Bankruptcy §§ 4416, 4424 (1961 rev.).
. Similarly, the fact that, according tb its charter, Allen University may sue and be sued should not be determinative of its status as a “moneyed, business, or commercial corporation,” since, under general South Carolina law, charitable corporations may sue and are subject to suit. S.C.Code Ann. § 12-758 (Cum.Supp.1971).
Question: Did the interpretation of federal statute by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_numappel
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1
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your specific task is to determine the total number of appellants in the case. If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
UNITED STATES of America, Plaintiff-Appellee, v. Juan De Dios LEVARIO QUIROZ, Defendant-Appellant.
No. 87-1662.
United States Court of Appeals, Fifth Circuit.
Aug. 23, 1988.
Thomas S. Morgan, Midland, Tex. (Court-appointed), for Juan De Dios Levario Qui-roz.
Janet E. Bauerle, LeRoy Morgan Jahn, Asst. U.S. Attys., Helen M. Eversberg, U.S. Atty., San Antonio, Tex., for U.S.
Before GOLDBERG, GARWOOD and JOLLY, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
Juan De Dios Levario Quiroz was convicted of assaulting a United States Border Patrol Officer with a deadly weapon. Le-vario Quiroz admitted shooting the federal officer, but claims he shot in self-defense. On appeal, he contends that the trial court erred in admitting evidence of a separate and unrelated shooting in which he also claimed self-defense. Levario Quiroz’s lawyer did not object to the introduction of the extraneous offense, and we thus review this issue under the “plain error” standard. We hold that the government’s introduction of the extraneous offense was highly prejudicial and constituted plain error. We therefore reverse Levario Quiroz’s conviction.
I
The following undisputed facts were introduced at trial. On August 17, 1982, a United States Border Patrol office received information that Levario Quiroz was wanted by the Texas Sheriffs Department and was likely to cross the Rio Grande River into the United States that afternoon. Border Patrolmen Paul Conover and Stanley Spencer proceeded to the Rio Grande River and conducted surveillance of a well-known crossing. Conover and Spencer saw a boat with two men (later identified as Levario Quiroz and Juan Enrique Galindo) cross the Rio Grande River to the United States’ side. The border patrolmen then attempted to follow the tracks of the individuals up a narrow trail leading from the river. Con-over, walking ahead of Spencer, rounded a bend in the path and saw Levario Quiroz.
At this point the parties emphatically differ as to what occurred. Conover testified that Levario Quiroz was sitting in a metal chair cradling a rifle in his arm. Conover shouted “stop” or “freeze” in Spanish (“parada”), and Levario Quiroz began shooting at Conover. Conover was shot twice and returned fire. Conover wounded Levario Quiroz with a shot-gun blast and Levario Quiroz, seriously crippled, fled only a short distance before he was apprehended. Patrolman Spencer, although unable to see Levario Quiroz at the time of the shooting incident, stated that he heard Conover shout “parada” and then shots were fired. A number of prosecution witnesses testified concerning the circumstances of Levario Quiroz’s arrest.
Levario Quiroz was his only witness. He testified that he had crossed the river to visit some friends. He stated that he was sitting in a metal chair, talking to a friend, when he heard someone yell “parada.” Suddenly, he heard shots and felt several buckshot pellets hit his legs. Levario Qui-roz then grabbed a rifle leaning against a tree and started returning fire. Thus, Le-vario Quiroz contended that he acted in self-defense.
II
The issue on appeal is whether the district court erred in admitting evidence that Levario Quiroz had been involved in a shooting in Monahans, Texas, in which he also claimed self-defense. It is therefore important to understand this evidence in the context in which it was offered at trial.
The assistant United States attorney was cross-examining Levario Quiroz about the guns that were in his possession at the time of the Rio Grande incident. Levario Quiroz had testified that he crossed the river to have a meal with some friends and had no intention of shooting anyone.
Prosecution: Why don’t you look these folks in the eye and tell them why you felt that for this friendly lunch you had to be armed to the teeth with a .45 caliber pistol and a .30 caliber pistol?
Levario Quiroz: Never, I have had problems but I never use them to kill anybody.
Prosecution: You never used these two weapons to kill someone?
Levario Quiroz: Never.
Prosecution: All right. What was Mr. Galindo carrying, how was he armed?
Levario Quiroz: He had a shotgun.
Prosecution: He had a shotgun. Was it a sawed-off shotgun?
Levario Quiroz: I don’t know. I know it was a shotgun.
The prosecution then attempted to introduce a statement signed by Levario Quiroz and given to a Mexican official while Le-vario Quiroz was in the hospital following his capture. The prosecutor, in a bench conversation, asserted that the statement was relevant for impeachment purposes and to show Levario Quiroz’s intent:
Prosecutor: Your Honor, it is time for me to get into some areas of his statement. One of the things I need to bring up, I need to ask the man, that he stated that he has never murdered anyone, with at least these two weapons. He has stated that Juan Galindo had a sawed-off shotgun as opposed to .22. He has alleged on his direct examination that he acted in self-defense, therefore, putting in the question of his intent and his credibility. Judge, what I would ask the Court, what Government’s Exhibit 22 is, first of all, is a statement given to a Mexican Consulate which Mr. Levario Quiroz signed, which he owns up to shooting three people in Ojinaga, Mexico [this reference is an apparent mistake by the prosecutor who meant to refer to the Monahans shooting] sometime prior to this particular offense. He states that Mr. Galindo was carrying .22 and he, in fact, did shoot the Border Patrol, not Galindo but himself. He owns up to that.
The prosecution specifically argued that the extraneous shooting was relevant under Fed.R.Evid. 404(b) to show intent in shooting the border patrolman. In order to rule on the admissibility of this evidence, the trial judge removed the jury from the courtroom and then questioned Levario Quiroz concerning his statement. Levario Quiroz informed the judge that he had signed the statement under duress and while under drug sedation in the hospital. After the trial court completed its inquiry into the signed statement, the prosecutor reiterated that the Monahans shooting was relevant under Rule 404(b). Levario Qui-roz’s attorney stated that he had no objection to the introduction of evidence concerning the Monahans shooting. The trial court then ruled:
You will be allowed to go, to impeach on the type of weapon that Galindo was purportedly carrying on August 17, 1982. You will be allowed to go into the fact whether or not he has ever told a Mexican] official about a shooting in Mona-hans, and allowed to pursue that. (Emphasis added.)
The prosecutor then began questioning Levario Quiroz in the presence of the jury:
Prosecution: Right. Okay. During that statement, did you tell that official, that fellow from Mexico, that Mr. Galin-do was carrying a .22 rifle; do you recall that?
Levario Quiroz: I don’t remember because the anesthesia, the shots they gave me, sometimes I didn’t know what I was saying.
Prosecution: Do you remember telling that fellow that you shot a man in Monahans, Texas?
Levario Quiroz: I do remember that because that was the last, some of the last that they asked me and I was about to get another shot [for pain].
Prosecution: Okay. You told the fellow from Mexico that you shot a male person that you knew and had a quarrel with in the past, and as a result of the shooting, two women were also wounded; is that right?
Levario Quiroz: That same incident was in Monahans.
Prosecution: Was that self-defense when you shot those two women?
Levario Quiroz: When Corales was fighting with me, he told me he was going after his gun and a lady, one of the girls, women, was handing him the gun and that is when I shot at him and hit the two women.
Prosecution: In any case, Mr. Levar-io, that was the first time you had to act in self-defense; is that correct?
Levario Quiroz: The first time you what?
Prosecution: The time in Monahans was the first time that you had to act in self-defense; is that correct, sir?
Prosecution: Now, sir, in this case when you shot the Border Patrolman with that .30 caliber carbine, that was also self-defense, wasn’t it, sir?
Levario Quiroz: Yes.
The prosecution also focused upon the Monahans shooting and the claim of self-defense during his closing argument. The prosecution stated:
Ladies and gentlemen, I don’t want you to consider the Monahans case for any other reason than whether or not this man is telling you the truth when he says he is peaceable, law-abiding. This man is not. He knows, he knows what happened out there and he is — no, this is not a laughing matter, but it will be such a laughing matter and he will laugh at each and every one of you if you let him, if you find him not guilty in this case.... You know, Mr. Levario-Quiroz certainly does, he certainly is consistent in his defenses_ Use your common sense. Getting back to what I was saying, Mr. Levario-Quiroz is very consistent. The shooting at Monahans, again, he is armed to the teeth, at a dance — at a dance. How many of you take guns to a dance? Well, it was self-defense then, too. This man, it is just really unfortunate, this is the most unlucky man I have ever seen in my life. Every time he steps out somebody is taking a shot at him and he has to defend himself.
Ill
In examining whether the trial court erred in allowing the extraneous offense testimony, we must first determine the appropriate standard of review. Since Levar-io Quiroz’s trial counsel did not object to the extraneous offense evidence, we can only reverse the trial court if plain error exists. Fed.R.Crim.P. 52(b). As the Supreme Court has stated, this rule:
authorizes the Court of Appeals to correct only “particularly egregious errors," those errors that “seriously affect the fairness, integrity or public reputation of judicial proceedings.” In other words, the plain-error exception to the contemporaneous-objection rule is to be “used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result.”
United States v. Young, 470 U.S. 1, 105 S.Ct. 1038, 1046, 84 L.Ed.2d 1 (1985) (citations omitted). The court also cautioned that appellate courts should not review the alleged error in an isolated manner but rather should examine the entire record as a whole. Id., 105 S.Ct. at 1046. In the light of Young, this court has stated that “in order for an error to constitute ‘plain error,’ it must (1) seriously affect substantial rights and (2) have an unfair prejudicial impact on the jury’s deliberations.” United States v. Garza, 807 F.2d 394, 396 (5th Cir.1986).
A.
The government’s contention at trial and on appeal is that evidence concerning the Monahans shooting was relevant under Rule 404(b) to show Levario Quiroz’s intent. We therefore address only whether the extraneous evidence was admissible under Rule 404(b).
The text of Rule 404(b) states:
(b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
Our court considered Rule 404(b) in United States v. Beechum, 582 F.2d 898 (5th Cir.1978) (en banc), and this case has served as the cornerstone for precedents that have followed. Beechum establishes a two-part test for admission of extrinsic evidence: “First, it must be determined that the extrinsic offense evidence is relevant to an issue other than the defendant’s character. Second, the evidence must possess probative value that is not substantially outweighed by its undue prejudice and must meet the other requirements of Rule 403.” Id. at 911. Fed.R.Evid. 403 provides: “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”
In applying the Beechum test, we first consider whether the evidence is relevant. To be relevant under Beechum
the evidence sought to be admitted must tend to make the existence of some fact that is of consequence to the determination of the action either more or less probable than it would be without the evidence. Where that evidence involves an extrinsic act, its relevancy under Beechum is a function of the degree of similarity between the extrinsic act and the offenses charged. This means more than the existence of a common characteristic. For the purposes of the Beec-hum test, the common characteristic must be “the significant one for the purpose of the inquiry at hand.” United States v. Guerrero, 650 F.2d 728, 733 (5th Cir.1981) (citations omitted).
The government attempts to show similarity by arguing that both the Monahans offense and the instant shooting concerned violent acts and the claim of self-defense. It is difficult for us to understand, however, how the incident at Monahans was probative of Levario Quiroz’s criminal intent in the Rio Grande incident. This court has explained: “Where the issue addressed is the defendant’s intent to commit the offense charged, the relevancy of the extrinsic offenses derives from the defendant’s indulging himself in the same state of mind in the perpetration of both the extrinsic and charged offenses.” United States v. Satterfield, 644 F.2d 1092, 1095 (5th Cir.1981) (quoting United States v. Beechum, 582 F.2d at 911). Whether a defendant can claim self-defense for his own act of violence always depends upon the peculiar facts that surround the incident. If the factual situation surrounding Levario Qui-roz in Monahans bore any resemblance to the circumstances at the Rio Grande, the government’s position would be more understandable. However, the Monahans shooting arose in the context of a social setting involving women; Rio Grande involved a confrontation with law enforcement officers. Monahans involved someone whom the defendant had known before; Rio Grande involved strangers. The Monahans incident apparently built up over a period of some time; the Rio Grande incident occurred suddenly and unexpectedly. The Monahans incident occurred in a dance hall; the Rio Grande shooting occurred in a remote, desolate area. In Mon-ahans, only Levario Quiroz fired his weapon, but at the Rio Grande there was an exchange of fire. At Monahans, Levario Quiroz admitted his adversary did not shoot first; at the Rio Grande, according to Levario Quiroz, the border patrol shot first. At Monahans Levario Quiroz was not injured by his victim; at the Rio Grande he was critically injured by his victim. Each of these circumstances is of critical importance in evaluating the claim of self-defense, yet none of these circumstances at Monahans is similar to any of these at Rio Grande. Given the almost complete absence of characteristics in common between the two incidents, we think Monahans has no relevance to show Levario Quiroz’s state of mind when he was confronted by an armed person on the banks of the Rio Grande two months later.
The extrinsic evidence, to be sure, showed that Levario Quiroz previously had shot a man, and had, on that occasion as in this one, claimed self-defense. The jury was reminded of this point by the prosecutor in his closing argument. But, unfortunately, the Monahans incident was inadmissible for the purpose for which the prosecutor sought to use it. Rule 404(b) makes plain that “evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith.”
B.
Having established that the Monahans shooting was not relevant, we next inquire whether this evidence constitutes plain error. As previously noted, in order to establish plain error, an appellate court must review the entire record and determine whether the extrinsic evidence affected a substantial right of the defendant and unfairly prejudiced the jury’s deliberations and verdict. See United States v. Young, 470 U.S. 1, 105 S.Ct. 1038, 1044-46, 84 L.Ed.2d 1 (1985); United States v. Garza, 807 F.2d 394, 396 (5th Cir.1986).
After reviewing the entire record, we are convinced that the evidentiary error here resulted in the denial of the right to an impartial verdict. A review of the record establishes that Levario Quiroz shot a federal officer and that no one contested this fact. The record also makes clear that the only disputed questions before the jury were who shot first and whether Levario Quiroz shot in self-defense. There were only two witnesses to the shooting, border patrolman Conover, and Levario Quiroz. The resolution of the case before the jury could be based on nothing more and nothing less than the personal credibility of these two witnesses: whom did the jury believe? If, for example, the jury believed Levario Quiroz’s testimony that he was ambushed, shot at first and wounded, by a person he did not know, it could easily have believed that he was only defending himself against an unknown assailant who was trying to kill him; thus, the jury could have concluded that when he shot the assailant he lacked the intent to commit the crime of assaulting a federal officer. It seems to us that Levario Quiroz’s contention and testimony that he shot in self-defense is altogether plausible if one accepts his version of the events at the Rio Grande.
We repeat ourselves in saying that the only question for the jury to decide was whom it should believe, Levario Quiroz or border patrolman Conover. In assessing the importance of credibility to Levario Quiroz and the prejudice of any evidentiary error, it is fair to observe that he was significantly disadvantaged from the start. He was a Mexican who could speak little English. The jury had heard testimony that he was being sought by the sheriff for a crime. Added to these handicaps, he was asking the jury to believe his word over the testimony of a law enforcement officer. Thus, with these strikes against him, it was absolutely critical that he present to the jury all the indicia of credibility that he could call forth, in order to convince the jurors that he had acted only in self-defense.
With this critical and determinative credibility issue hanging in the balance, we have no doubt that the government's introduction of inadmissible evidence, which went to show the general character trait of committing violent acts and then claiming self-defense, was fundamentally prejudicial and undermined the impartiality of the jury’s verdict on the sole question before it: whether Levario Quiroz had acted in self-defense and therefore lacked criminal intent when he shot Conover.
Furthermore, the inadmissible evidence was highly prejudicial in other ways. It showed Levario Quiroz had shot two women and, additionally, in the course of admitting the evidence, the jury heard that Le-vario Quiroz had been indicted for the Mon-ahans offense.
We are therefore convinced that the prejudice caused by the introduction of the extraneous offense was an egregious error that seriously affected the “fairness, integrity or public reputation of [the] judicial proceedings.” United States v. Young, 105 S.Ct. at 1046. When the evidentiary error is examined within the context of the entire record, we find that plain error was committed and that fundamental fairness and basic justice require the reversal of this conviction. Consequently, we reverse and remand for a new trial.
Judge GARWOOD notes his dissent.
REVERSED AND REMANDED.
. The trial judge correctly ruled that the statement was admissible to impeach the defendant on Galindo’s weapon.
. Levario Quiroz did not testify that he was peaceable and law-abiding. He generally testified that he had no intention of harming anyone except in self-defense on the occasion of the Rio Grande shooting and that he had never killed anyone with the two guns in question.
. The government has ultimately abandoned any reason for the admissibility of this extraneous offense except to show intent under Rule 404(b). The government's confusion at trial is reflected in this portion of its final argument; it first contended that the only purpose of raising the Monahans shooting was to impeach the defendant’s testimony that he was a peaceful law-abiding person. Before the prosecutor could catch his breath, however, he argued to the jury that they should consider the Monahans incident for the purpose of showing, effectively, that Levario Quiroz's conduct in the Rio Grande incident was in conformity with his conduct at Monahans, a purpose generally prohibited under Rule 404.
Question: What is the total number of appellants in the case? Answer with a number.
Answer:
|
songer_treat
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B
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What follows is an opinion from a United States Court of Appeals.
Your task is to determine the 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 ex rel. MAJKA v. PALMER, District Director of Immigration.
No. 4953.
Circuit Court of Appeals, Seventh Circuit.
Oct. 16, 1933.
David Snow, of Chicago, 111., for appellant.
Dwight H. Green, U. S. Atty., and Austin Hall, Asst. U. S. Atty., both of Chicago, 111., for appellee.
Before EVANS, SPARKS, and FITZHENRY, Circuit Judges.
SPARKS, Circuit Judge
(after stating the facts as above).
The statute under which the deportation proceedings herein involved were had provides that, “ * * * any alien who was eonvieted, or who admits the commission, pri- or to entry, of a felony or other crime or misdemeanor involving moral turpitude * * * shall, upon the warrant of the Secretary of Labor, be taken into custody and deported. * * *” 39 Stat. 889 (8 USCA § 155). Appellant contends that there was no authority for the deportation since there was no showing that the act of perjury constituted a crime under the laws of Poland where the act was committed, and that, admitting that perjury is defined as a crime in the United States, such definition has no bearing outside the United States, and is not applicable where the act is committed outside its own territorial boundaries. Appellant, however, loses sight of section 1750 of the Revised Statutes (22 USCA § 131J, which gives to every notarial act done before any consular officer within the limits of his consulate, the same force and effect as if done in the United States, and provides that in the case of perjury, the offender may be proceeded against in any district of the United States in the same manner as if the offense had been committed within the United States. Without going into the question raised by appellant as to whether or not the United States could have proceeded against him by means of extradition had he decided not to avail himself of the passport illegally obtained, and remained in Poland instead of coming to the United States, it seems clear to us that when he did enter the United States, thereby making use of the fraudulent passport for the very purpose for which the crime was committed, he placed himself within the control of its laws and subjected himself to whatever proceedings it might see fit to bring as the result of his criminal act. It therefore becomes immaterial to determine whether or not perjury is held to be a crime in Poland, since the crime admitted was committed against the United States. Being a crime involving moral turpitude it may be the basis for deportation proceedings. Kaneda v. United States (C. C. A.) 278 P. 694; Yoshimasa Nomura v. United States (C. C. A.) 297 F. 191.
Appellant also contends that even if his acts did constitute a crime against the United States, that crime was not complete until he set foot upon United States territory, and therefore it was not committed prior to entry. With this we do not agree. The crime was completed when he made the false statements concerning a material matter under oath administered by an officer of the United States empowered by it to administer that oath. A crime involving moral turpitude committed within the United States prior to a second entry into this country may be used as the basis for deportation proceedings. United States v. Smith, 289 U. S. 422, 53 S. Ct. 665, 77 L. Ed. 1298. A crime against the United States committed outside its territorial boundaries but within the limits of its consular jurisdiction may also be reason for deporting the alien, particularly where, as in this ease, the act made it possible for him to enter and it might otherwise have been impossible for him to do so.
It is true that in the absence of a conviction of the crime, the immigrant inspector would not have been able to deport the alien ■without his own admission of it. However, the alien did admit both the facts, and that they constituted a crime. The record does not indicate that any unfairness was practiced in securing this admission, and there is no evidence that he was embarrassed or disconcerted during the hearing. He was given the opportunity to secure counsel if he so desired, and he refused to avail himself of that opportunity. We find no reason for reversing the order of the District Court, and it is therefore affirmed.
“Depositions and Notarial Acts; Perjury. Every secretary of embassy or legation and consular officer is hereby authorized, whenever he is required or deems it necessary or proper so to do, at the post, port, place, or within the limits of his embassy, legation, or consulate, to administer to or take from any person an oath, affirmation, affidavit, or deposition, and to perform any notarial act which any notary public is required or authorized by law to do within the United States. Every such oath * * * and notarial act administered, sworn, !- '* * or done, by or before any such officer, when certified under his hand and seal of office, shall be as valid, and of like force and effect within the United States, to all intents and purposes, as if administered * * * or done, by or before any other person within the United States duly authorized and competent thereto. If any person shall willfully and corruptly commit perjury, * v v in any such oath, v * within the intent and meaning of any Act of Congress now or hereafter made, such offender may be charged, proceeded against, tried, convicted, and dealt with in any district of the United States, in the same manner, in all respects, as if such offense had been committed in the United States, before any officer duly authorized therein to administer or take such oath, * * * and shall be subject to the same punishment and disability therefor as are or shall be prescribed by any such act for such offense. *****
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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songer_direct1
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C
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What follows is an opinion from a United States Court of Appeals.
Your task is to 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.
The MIHALEK CORPORATION and Lawrence Patrick Mihalek, Plaintiffs-Appellants, v. The STATE OF MICHIGAN, Governor James J. Blanchard, the Dept. of Commerce of the State of Michigan, Ralph J. Gerson, Director, Ross Roy, Inc., Defendants-Appellees.
Nos. 84-1851, 84-1854, 85-1593 and 84-1986.
United States Court of Appeals, Sixth Circuit.
June 8, 1987.
Before MERRITT, WELLFORD, and NORRIS, Circuit Judges.
ORDER
We filed an opinion in this cause on March 18,1987, 814 F.2d 290, affirming the decision of the district court and denying plaintiffs the relief sought for alleged misappropriation of their copyrighted and trademark materials and ideas in the advertising plan in controversy. The petition for rehearing asserts that we failed to reach two issues in our prior opinion. First, the misappropriation claim included the contention that defendants, through governmental and state action, had taken their property without compensation within the meaning of the fifth amendment. Our opinion does not specifically mention the fifth amendment claim. It is clear, however, that our holding was to the effect that as a matter of law there was no “taking” of plaintiffs’ materials and concepts and those utilized by defendants. We found no error in the district court’s conclusion that defendants had not used, appropriated, or benefitted from plaintiffs’ property in the form of ideas, materials, or advertising concepts. There was, then, no violation of plaintiffs’ claimed fifth amendment rights.
Plaintiffs also assert that we failed to address their claims of “direct photocopying by defendants” of “copyrighted advertising program plan at the direction of two of the highest officials in the Michigan Department of Commerce.” This contention involves the statement made in (plaintiffs’ brief that two state officials had kept two photocopies of some of the copyrighted material. This photocopying was assertedly discovered during plaintiffs’ Michigan Freedom of Information Act investigation following selection by defendants of another advertising program.
It is not clear whether defendants asserted “fair use” as an affirmative defense in this case, nor whether there may have been a technical, although possibly de minimis non curat lex violation of 17 U.S.C. § 106 in the alleged retention of photocopies by two state officials. This question was not specifically addressed by the district court in his decision nor does it appear that this failure to address this issue was called to his attention by the parties. We believe it is best for the district court in the first instance to address this contention. We therefore REMAND the question of alleged photocopying by state officials and whether, if it occurred, this constituted a violation of plaintiffs’ claimed rights in any respect in light of the record made by the parties.
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_method
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A
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine the nature of the proceeding in the court of appeals for the case, that is, the legal history of the case, indicating whether there had been prior appellate court proceeding on the same case prior to the decision currently coded. Assume that the case had been decided by the panel for the first time if there was no indication to the contrary in the opinion. The opinion usually, but not always, explicitly indicates when a decision was made "en banc" (though the spelling of "en banc" varies). However, if more than 3 judges were listed as participating in the decision, code the decision as enbanc even if there was no explicit description of the proceeding as en banc.
PALLMA et al. v. FOX et al.
No. 232, Docket 21568.
United States Court of Appeals Second Circuit.
Argued May 3, 1950.
Decided June 8, 1950.
Leonard Zissu, New York City (Abraham Marcus, Alan J. Stein, New York City, of counsel), for appellants.
Fitelson & Mayers, New York City, I. Jack London, New York City, for appellees.
Before L. HAND, Chief Judge, and CHASE and CLARK, Circuit Judges.
L. HAND, Chief Judge.
The plaintiffs appeal because of its inadequacy from a judgment in their favor in an action brought upon a written contract with the defendants, entered into on March 20, 1928, by which they sold their business as publishers of musical compositions. Part of the property sold was the copyrights of 29 musical compositions: 3 piano solos, 1 violin solo, 3 organ solos and 22 songs. That part of the contract out of which this action arose we quote in the margin. The plaintiff, Pallma, had been in the defendants’ employ, but had left them in 1925 to form the plaintiff firm. However, by 1928 he and Warner were deeply in debt and wished to sell out, and, after they had, Pallma went back into the defendants’ employ where he remained until 1933. The defendants rendered accounts to the plaintiffs under the contract until the year 1939, covering some of the matters mentioned in the contract which are no longer in dispute; hut for the “bulk revenues,” so called, they accounted only in part, and in a very small amount. The plaintiffs filed their complaint on October 26, 1939, demanding, among other matters now not involved, an account of these revenues; and Judge Mandelbaum directed the defendants to account by an interlocutory judgment, entered June 30, 1943, in which he appointed a master to state the account. The master reported on September 25, 1946, and Judge Goddard on July 3, 1947, confirmed the report in part and rejected it in part, remanding some of the issues to the master on October 14, 1947. The master made a second report on April 12, 1949, and on July 26 of that year Judge Goddard also modified this report in part and confirmed it as modified. It is from this judgment that the plaintiffs appeal upon the ground that they have not been allowed enough as their share of the “bulk revenues.”
These were from two sources: payments made by the American Society of Corn-posers, Authors and Publishers, known as ASCAP; and .payments made by moving picture producers who “synchronized” music with their films. ASCAP’s practice, with which the plaintiffs were familiar, was for music publishers, who were members, to grant it the right to exploit a catalogue of their compositions, for the performance of which ASCAP in turn granted licenses to radio broadcasters, hotels, dance halls, theatres, cafes and other public performances. These licenses gave the licensees the privilege of performing at will the compositions, of all publishers which ASCAP controlled, in consideration of an annual lump sum, which was not dependent upon the extent to which the licensee might use the compositions. The gross, or “bulk," revenue so received ASCAP divided in half, giving one part to authors and composers and the other to publishers: we are here concerned only with the publishers’ half. That was divided among all the publishers during the period with which this case is concerned by two different methods; one, from 1928 to 1936; the other, from 1936 to 1945. During the first period the publishers’ half was divided by assigning to each publisher a “class” — A, B, C, etc. — which entitled him to a prescribed percentage of- three-fourths of the half. His “class” was determined periodically by a “Classification Committee” which appraised his catalogue, taken as a whole, upon the basis of what was called the “availability” of the compositions in it. This committee did not try to appraise “availability” by any quantitative measure, but by an overall estimate of the popularity of the compositions. It did not, and would not, disclose the factors which determined its decision, except by vague variants on “popularity,” such as “importance,” “character” or “vogue.” As we have just said, a publisher’s “class” determined his percentage of only three-fourths of the publishers’ half; the other fourth was distributed on the basis of what was called his “seniority,” which was. the sum of “credits” that had been allotted to him .in past years, the “credit” for each such year -being in its turn determined by his class in that year. After 1936 the following method was used. A record was kept of the performance over four radio networks of each composition in the catalogue of each publisher, and the composition was credited with a “point” computed by the aggregate of its performances. One-half of the publishers’ half was divided by crediting to each publisher the percentage that the sum of his “points” bore to the total “points” of all member publishers. The other 'half was divided as the whole had been before 1936, except that “availability” then counted for only three-fifths instead of three-fourths of a publisher’s dividend, and in consequence “seniority” counted for two-fifths instead of one-fourth.
The defendants dealt with each moving picture producer by a separate contract, but these fell into three groups. In the first group were contracts in which the producer paid an annual lump sum for the privilege of using all the compositions of a publisher’s catalogue as he might choose; thus these were like the contracts which ASCAP made with its licensees. In the second group were the contracts of producers who paid a prescribed sum for each use of a composition, but with an annual minimum for the whole catalogue. In cases in which the sum of the use payments was less than the minimum this group would be the same as the first group; but the master m-ade no distinction to provide for the possibility that the minimum might be less than the sum of the use payments. However, as there were only two of these contracts whose “revenues” together amounted to only $7,000 out of over $560,000, and as neither party has apparently objected to this omission, we shall treat the second group as identical with the first. The third group of contracts was of those in which the producer credited the publisher with a prescribed amount for each use of a composition with a minimum which could however be carried over from year to year. These afforded a ready means of separating the return upon each composition, and the master did not include them as “bulk revenue”; and the plaintiffs do not assert that they constitute a separate unsatisfied liability. Nor do we find it necessary to consider that part of the defendants’ receipts which they received under what went by the name of the ERPI contracts, for the master found that in this sum — $175,000 — the plaintiffs were entitled to share only on the “use basis” on which the payments had been computed, and that the defendants had “already accounted for” that share.
The master in his first report, following Judge Mandelbaum, held that, although the defendants were justified in putting the plaintiffs’ 29 compositions into their catalogue and allowing ASCAP and the moving picture producers to make payments upon the catalogue as a whole, they were wrongdoers in failing to keep that part of the “bulk revenues” which came from the plaintiffs’ compositions separate from the part that came from their own compositions. He did not, however, apply the extreme doctrine that, since because of this wrong the defendants were under a duty to disentangle the two contributions, all doubts should be taken against them. Indeed, if he had, it would have been difficult to avoid the conclusion that the plaintiffs could claim all the “bulk revenues”; and even the plaintiffs themselves do not assert that. The master appears to have taken the intermediate position of somewhat weighting the scales against the defendants, when he was in doubt. He found that the change of the defendants’ “class” from C to B in April of 1928, was owing to the addition of the Pallma compositions to their catalogue, which they put forward to ASCAP as a reason in a letter of February, 1928. He was confirmed in this conclusion because of a letter written in March, 1932, in which they asked for a still further advance in “class,” and mentioned 33 songs in their catalogue ás especially deserving, of which two were Pallma songs. He also relied upon a survey, made shortly before the contract, based upon the number of performances of Pallma songs compared with performances of the defendants’. He concluded from these facts that the plaintiffs had contributed six percent to the ASCAP “bulk revenues” over the entire period, and this amount he allowed them.
Judge Goddard reversed this finding because it was without adequate support in the evidence, and, as was inevitable, he also reversed the master’s finding that the same percentage should be applied to the moving picture producers’ “bulk revenues.” He held that the defendants’ ASCAP revenues after 1936 should be divided in the proportion which the performances of the Pall-ma compositions bore to the defendants’, performance being the basis of half the ASCAP award to the defendants after 1936. In so doing he made no allowance for possible differences between a performance basis, and an “availability” or “seniority” basis on which ASCAP had computed the other half of these receipts. He gave no instructions about the proper division of the moving picture producers’ “bulk revenues.” On the second hearing the master divided the ASCAP revenues before 1936 in the proportion of the sheet sales of Pall-ma compositions to the whole catalogue; and he divided the moving picture producers’ revenues over the whole period in accordance with the sheet sales. Judge Goddard confirmed these findings as to ASCAP revenues, and to this the plaintiffs have not objected. He did not, however, accept the master’s division of the moving picture producers’ revenues; nor would he accept the defendants’ argument that they should be divided in the proportion of performance. Sheet sales he thought did not allow for the use of the compositions as “background,” which was part of the “bulk” contracts with moving picture producers. “Performance” percentages he discredited because, although the defendants in the ERPI contract had bargained on the basis of performances, they had not used them in the “bulk” contracts. He therefore took half the difference between the sheet sales and the performance percentages; and the final judgment was framed accordingly, the expenses of the reference being divided between the parties.
We cannot agree that the defendants are subj ect to the burden which the law places upon a wrongdoer — usually a fiduciary — which resolves all doubts against him in separating the beneficiary’s interest from his own. The contract of 1928 expressly permitted the defendants to combine the plaintiffs’ compositions with their
own in a single catalogue; and, indeed, the master and both district judges conceded that to this extent the defendants did no wrong. B.ut, that once being conceded, the defendants were justified in exploiting the combined catalogue as they would have exploited their own, and in collecting the revenues in “bulk” whenever that was customary in the publishing business. So far as concerns the ASCAP revenues, there can be no possible doubt of this; the plaintiffs were not members of ASCAP, which would •surely not have consented to treat them as such: the Classification Committee would not have given them a classification based on any such catalogue. The difficulties of procuring separate allowances for Pallma compositions were perhaps not so insuperable in dealing with the moving picture producers’, but it would be entirely gratuitous and unwarranted to assume that these producers would have separated the “bulk revenues.” Yet without some such separation in the case of both ASCAP and the producers, the plaintiffs’ share had to remain the subject of compromise, or of ascertainment by what in candor can be no better than the honest guessing, which has pervaded, and was bound to pervade, this litigation. Therefore, although we recognize that this interpretation of the contract puts the plaintiffs at a disadvantage, that is inherent in the contract itself, and is far more just than to impose any burden of proof upon the defendants for performing the contract in the way which the plaintiffs either intended, or were chargeable with notice that it would be performed. Nor does the defendants’ failure to account for the “bulk revenues” throw any burden of proof upon them; an accounting, when not voluntary, always presupposes that the accounting party has been in default; he can properly be charged with the expenses of the proceeding, but with no more. Upon any accounting, he does indeed have the burden of proving any credits, if - they are challenged; but the other party has the burden of proving all “surcharges” and in the cáse at bar
we are concerned only with those. Therefore the plaintiffs had the burden throughout.
Coming then to the details, we agree with Judge Goddard that the master’s finding was “clearly erroneous” that the plaintiffs contributed six percent of the ASCAP revenues over the whole period. We do not forget what we have so often said, and what indeed Rule 53(e) (2), Federal Rules of Civil Procedure, 28 U.S.C.A., makes peremptory; i. e., that a master’s findings are as conclusive upon the district court as that court’s findings are conclusive upon us. Nevertheless some review is always open; and it extends as much to untenable inferences from conceded evidences as to the credibility of testimony. The defendants in their letter of February 28, 1928, did indeed notify ASCAP that, beginning the next day, they would exploit the Pallma compositions as part of their catalogue. Moreover, that was while the defendants’ application for a change in “class” was pending, and it was put forward as one ground for a change of “class.” On the other hand, not only did ASCAP’s answer give no indication that the Pallma compositions had anything to do with the result, but it explicitly stated that “the addition of the Pallma credits to yours would have no effect upon your standing.” The master was in error in striking this out; the plaintiffs had put in the letter as evidence of ASCAP’s action upon it; the answer was part of that action. Again, the defendants’ letter, four years later— March 22, 1932—gave no support to the ■master’s finding. It did indeed mention 33 “numbers,” which were “popular as well as standard successes,” and of these two were Pallma songs; but there is as little ground in that for supposing that the Pall-ma compositions contributed six percent to the revenues, as there would be for assuming that they contributed two percent because in the same letter the defendants mentioned 52 “outstanding composers” in théir catalogue, of whom only one was among Pallma composers. Nor can we accept the master’s exclusion of “theatre performances” from the so-called survey of 1927. It is true that Mills testified that of the music played at motion picture performances (which is to be distinguished from that “synchronized” in films), “much” was not “regularly published, copyrighted and available in some form to all licensees”; and that such music ASCAP did not count; but he also said that “much of it was” so published. It was utterly unjustified therefore to eliminate from Mills’ letter of March 5, 1928, all theatre credits. If we were to use one-half of them, the plaintiffs’ contribution would be less than one percent; and, even if we were to take only one-fifth, it would be little more than one and a half. Finally, the notion that Mills’ opinion was not reliable evidence, because he was not a member of the “Classification Committee,” is equally untenable. His duties constantly brought him in contact with classifications; he was the chairman of the Administrative Committee; and if there was an expert, certainly he was one.
For these reasons we hold that Judge Goddard was right in declaring the first report “clearly erroneous”; and no question arises as to whether he was right also in accepting the second report as to the ASCAP revenues, for the plaintiffs rest their appeal as to these solely upon the argument that the first report was right. There remains therefore only the division of the moving picture producers’ revenues. The master’s first allowance was made on the assumption that the producers’ contribution to these could properly be measured by their contribution to the ASCAP revenues ; and, as we have said, it fell with his finding as to them. Was he right in using sheet sales as a proper standard of division in his second report? If that was not right, was Judge Goddard right in substituting the mean between the sheet sales percentage and the performance percentage? The master used the sheet sales as a standard, exclusive of any performance factor, because he understood Judge Goddard to have ruled that the performance standard was not applicable to the “bulk” contracts of moving picture producers. It turned out that he had misapprehended the judge, and his actual finding was therefore irrelevant. The judge had, therefore, either to decide the issue for himself on the evidence, or to send the case back a third time; and he very wisely decided to decide it himself. It is his finding, not the master’s, which is before us.
Performance is a better standard of contribution than the sheet sales, and for that reason the master and the judge did use it for the second period of the ASCAP revenues, during which that standard was available. Indeed, if the plaintiffs had so argued, it might have been a closer approximation to the truth, to carry the performance standard back over the first period. The master thought, and the plaintiffs argue, that there were no reliable statistics on which to base a performance percentage applicable to the moving picture revenues, and that therefore only the sheet sales standard was available. We think that this is not true; that there was reliable evidence; and that Judge Goddard was right in overruling the master, so far as he can be said to have made any finding to the contrary. The percentages appear on Exhibit R-A, consisting of two sheets purporting to contain the number of performances of the defendants’ whole catalogue and that of the Pallma compositions. This exhibit was typed in the office of the defendants’ attorneys from information furnished them by one of the defendants, Sam Fox, which he in turn took from books kept in the defendants’ offices. The method of keeping the books Fox explained. The moving picture producers regularly sent to the defendants “cue sheets,” containing the numbers of performances of all compositions in the defendants’ catalogue, including any Pallma performances. These were filed and preserved, and their contents were from time to time transcribed into the defendants’ books by employees, called “auditors.” Two or three omissions were apparently discovered in the books at the earlier hearings, but even if these made the books not conclusive, they did not make them incompetent. Fox’s testimony made them competent for the following reasons, under the federal statute, as well as under § 374-a of the New York Civil Practice Act. The “cue sheets” themselves were records kept by the producers and regularly delivered to the ■ defendants; presumably they were made up by persons authorized to make them. It was part of the duties of the “auditors” to enter their contents in the books, and, although this was not done at once, but only when it was found convenient, that was within a “reasonable time,” for there was no need for haste, since the “cue sheets” were preserved. True, Exhibit R-A was' a transcript from the books, and the plaintiffs objected to it on the ground that the books would be “the ■best evidence” which we will accept as an objection to secondary evidence of their contents. However, to produce the books themselves would have been cumbersome and dilatory, and Fox consented to let the plaintiffs examine them at length in his office. Therefore the master took this course. He admitted the exhibit, and twice adjourned the 'hearings so as to give the plaintiffs a chance to’ compare the exhibit with the books, and to adduce any testimony to show that it was not an accurate transcript; and they never did introduce any such testimony. This was certainly a valid substitute for the production of the books themselves, and justified the use o’f secondary evidence.
As we have said, performance was a much better standard to test contribution than sheet sales. The producers performed those compositions of the whole catalogue which they thought would best please their audiences, and their judgment was the best index available of the relative drawing power of “synchronized” music. Thus, even though we disregard the factor of “background" — a term which appears in the moving picture contracts, but Whose meaning is by no means clear — the contribution of a composition to the “bulk revenues” is better so appraised than by the number of people who wished to buy copies of it for individual, or even orchestral, performance. If Judge Goddard erred at all, it was in taking a mean between the sheet sales and the performance, instead of using only the standard of performance.
There is a disputed item of $310.77, as to whose proper allocation we cannot be sure. The judge deducted it from the amount of the percentages, because 'he supposed it had been already paid; but the plaintiffs say that it had been computed upon the total — $562,944.70 — of all the “bulk revenues” from the moving picture pro^ ducers, before deducting the ERPI payments — $175,000. As we understand it, this would increase the recovery by 175/563 of $310.77 — somewhat less than $97. It is hard to say that the plaintiffs have proved their right to this, but since the defendants’ brief does not answer the claim, we will allow so much of the item.
My brothers think that, since the defendants were only willing to concede that they owed $313.83 to the plaintiffs, and the plaintiffs have now recovered nearly $8,500, the defendants should pay all the expenses of the reference. Although I feel the force of that argument, for myself I should have ruled otherwise. The efforts of the plaintiffs to swell their claim seem to me quite unwarranted; and if they 'had kept it within bounds, I doubt that the expenses would have been more than half what they were. However, my view is not to prevail, and the defendants will pay all expenses of the references together with an addition of $97 to the recovery.
Judgment modified as above, and as modified, affirmed.
. “It is further agree,d that any earnings or royalties from all foreign rights, from rights or reproduction in any manner or description upon mechanical instruments, and all performing rights of whatever kind, including cinematograph and radio broadcasting rights, and from all other sources whatsoever now or hereafter conferred or created or protected by said copyrights herein assigned, are to be divided one-half to Sam Fox Publishing Company and one-half to Frank J. Pallma, Jr., and Stanley Warner, after deducting such royalties as are herein required to be paid to authors and composers in accordance with contracts made with them and hereby assigned.
“It is further agreed that all numbers from the Pallma catalogue are to be listed at once in the Sam Fox Publishing Company musical catalogue, and representation of same given therein for a minimum period of ten years; after which time, in the event Sam Fox Publishing Company desire to discontinue any of the items in the Pallma catalogue, said items are to revert back to Frank J. Pallma, Jr., or Stanley Warner, or their assigns upon payment for all copies, plates, titles, etc., of compositions so discontinued that may be on hand, at the cost price, not to exceed the original cost of manufacturing mentioned in this agreement, and they are to receive full and complete assignment and delivery of same and copyrights thereto, upon payment therefor.”
. McManus v. Sawyer, D.C., 281 F. 231; Pappathanos v. Coakley, 263 Mass. 401, 161 N.E. 804; Daniels, Chancery Pleading and Practice, 6th Am. ed., p. *1225; Bates, Federal Equity Procedure, VoL H, § 763.
. § 1732, Title 28 U.S.C.A.
. Burton v. Driggs, 20 Wall. 125, 136, 22 L.Ed. 299; Rollins v. Board of Commissioners, 8 Cir., 90 F. 575, 583; United States v. Mortimer, 2 Cir., 118 F.2d 266, 269.
Question: What is the nature of the proceeding in the court of appeals for this case?
A. decided by panel for first time (no indication of re-hearing or remand)
B. decided by panel after re-hearing (second time this case has been heard by this same panel)
C. decided by panel after remand from Supreme Court
D. decided by court en banc, after single panel decision
E. decided by court en banc, after multiple panel decisions
F. decided by court en banc, no prior panel decisions
G. decided by panel after remand to lower court
H. other
I. not ascertained
Answer:
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songer_appbus
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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 "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.
EDMONDS, INC., Appellant, v. Marie F. VOJKA et al., Appellees. McPHERSON BUILDING CORP., Appellant, v. Marie F. VOJKA, Appellee.
Nos. 18036, 18037.
United States Court of Appeals District of Columbia Circuit.
Argued Jan. 31, 1964.
Decided April 2, 1964.
Mr. John F. Mahoney, Jr., Washington, D. C., with whom Messrs. Charles E. Pledger, Jr., and Daniel M. Head, Washington, D. C., were on the brief for appellant in No. 18036.
Mr. Denver H. Graham, with whom Mr. Albert E. Brault, Washington, D. C., was on the brief, for McPherson Building Corp., appellee in No. 18036 and appellant in No. 18037.
Mr. Arthur S. Feld, Washington, D. C., with whom Messrs. Joseph D. Bulman and Sidney M. Goldstein, Washington, D. C., were on the brief, for appellee Vojka.
Before Fahy, Washington and Bastían, Circuit Judges.
FAHY, Circuit Judge.
Marie F. Vojka sued Edmonds, Inc., and McPherson Building Corporation, for damages due to injuries suffered in a fall in an office building owned by McPherson and in which Edmonds, an optical company, had offices on the first and second floors. She went to Edmonds, on the second floor, for photographing of her eyes. After this was done she proceeded toward the first floor by a stairway, and in thus descending she fell. Her complaint alleges that the fall was caused by the dangerous and defective condition of the stairs maintained by McPherson, and also by Edmonds’ negligence in directing her over a dangerous path in the building when a safer way was available. The case was tried before a jury, which returned a verdict against both Edmonds and McPherson, reduced to a money judgment by the court.
Edmonds sought exoneration or indemnification from McPherson, which was denied. McPherson sought contribution from Edmonds, which was granted.
In No. 18036 Edmonds appeals from the judgment against it and also from the order denying indemnification from McPherson. In No. 18037 McPherson appeals from the judgment against it. Vojka is appellee in both appeals, and McPherson is also an appellee in No. 18036 insofar as the order disallowing indemnification is concerned.
No. 18086. As hereinafter explained we reverse the judgment against McPherson. It follows that we must also-reverse the judgment against Edmonds, for the finding by the jury of negligence-on Edmonds’ part is interwoven with the finding of negligence on the part of McPherson with respect to the stairs where appellee Vojka fell. Since, as we shall explain, this finding is afflicted with reversible error, it cannot be said that had such error not occurred either Edmonds or McPherson would have been held liable by the jury. In awarding a new trial to McPherson we must therefore also award a new trial to Edmonds.
No. 18037. The error is with respect to testimony about building regulations. The building is an office building which was erected in 1922. Appellee attributed her fall at least in part to the absence of a handrail on the stairs. A 1917 building code of the District of Columbia required handrails on the wall side of stairs. If it applied to this building the provision was important, since this code was in effect in 1922 when the building was erected. Counsel for appellee stated, however, that the 1917 code related to apartment houses and that there was then no specific code for office buildings. He offered the evidence of the 1917 provision to show analogously the standard of care which should have been observed in office buildings, though the code itself was not applicable to such buildings. He said he was unable to allege a violation of the 1917 code "because there was no code provision for it.”
Notwithstanding the foregoing an employee of the District of Columbia Department of Licenses and Inspections, called by appellee, on being asked if there was any provision in the 1917 code with regard to handrails in office buildings, replied, “There is a general requirement for handrails in stairways. It does not confine itself to any particular occupancy. It is a general requirement for handrails ■on the wall side of stairways. * * * ” He subsequently added, “This general requirement is not modified specifically by an office occupancy reference.” On cross-examination there was an unsuccessful effort to clear up whether the 1917 code applied to office buildings. Indeed, the witness then indicated more strongly that the 1917 handrail provision did apply to office buildings. Thereupon counsel for McPherson requested that all this testimony about stairways and railings be stricken and the jury instructed to disregard it. The request was denied, followed by a motion for a mistrial on the ground that although counsel for appellee had represented that the building code of 1917 applied only to apartment houses, a view taken also by defense counsel, yet the witness had been permitted to testify “that there was a general section.” The motion for a mistrial was also denied. McPherson’s request that the jury be instructed that there was no building code violation as such was also denied.
The question as to the applicability of the 1917 handrail provision was not decided at the trial. The question needed an answer by the court. The importance of the matter is obvious; yet we cannot say whether or not the jury considered that the 1917 provision applied and was violated by McPherson. If the provision was not applicable, a question for the trial court, see Hecht Co. v. McLaughlin, 93 U.S.App.D.C. 382, 385, 214 F.2d 212, 215 (1954), but was considered to be applicable by the jury, as may have been the case, the verdict may have resulted from a misunderstanding of the legal status of the 1917 provisions. We think the court should have • determined this question and then should have ruled on the evidence and instructed the .jury in accordance with its determination.
Adding to the need for a new trial is a problem about the 1951 building code. This code was formulated long after the building was constructed, and was not retroactive, so that of course it was not violated. Nevertheless, extensive evidence regarding its provisions was permitted to be introduced on the theory that the provisions evidenced a standard of accepted architectural practice by which to measure whether or not McPherson had exercised due care in maintaining the stairway, though, as such, the code was not violated. This theory of admissibility finds support in 2 Harper & James, Torts § 17.6 at 1006 (1956). We think the evidence was admissible as relevant to the degree of care required; but to avoid jury confusion the court should itself have made clear that non-conformance with the standards of the code was not evidence of code violation. The danger of misunderstanding by the jury in a matter of critical importance on the issue of negligence required such an instruction if requested, and McPherson adequately requested it. True it is that counsel for appellee stated he was not claiming a code violation as such; but this disclaimer of counsel during the course of the trial is not the same as an instruction by the judge in a matter so liable, absent his instruction, to be misunderstood.
Since the judgment is to be reversed and the cases remanded, we need not pass at this time upon the merits of the questions of contribution or indemnification. Nor are the contentions with respect to the limitations of the pretrial orders necessary to be decided, except to say that in view of what has transpired ample notice has now been given to all parties as to the use which might be attempted to be made on the remand with respect to the building codes.
Reversed and remanded.
. She joined Cafritz Company, a corporation, manager of the building. But Cafritz is not a party in the present appeals.
. As in that case, a determination of the scope of the regulation may depend on factual testimony. Also, as we there pointed out, the construction by the agency charged with its execution may be material and helpful, if doubt or ambiguity appears.
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_jurisdiction
|
D
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What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the trial court level. These issues are only considered to be present if the court of appeals is reviewing whether or not the litigants should properly have been allowed to get a trial court decision on the merits. That is, the issue is whether or not the issue crossed properly the threshhold to get on the district court agenda. The issue is: "Did the court determine that it had jurisdiction to hear this case?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".If the opinion discusses challenges to the jurisdiction of the court to hear several different issues and the court ruled that it had jurisdiction to hear some of the issues but did not have jurisdiction to hear other issues, answer "Mixed answer".
Ora P. HALL v. Arthur S. FLEMMING, Secretary of Health, Education and Welfare.
No. 14300.
United States Court of Appeals Sixth Circuit.
April 13, 1961.
Ora F. Duval, Olive Hill, Ky., for appellant.
John W. Morgan, Asst. U. S. Atty., Lexington, Ky. (Jean L. Auxier, U. S. Atty., Lexington, Ky., on the brief), for appellee.
Before MILLER, Chief Judge, and McALLISTER and WEICK, Circuit Judges.
McALLISTER, Circuit Judge.
This is an appeal from an order of the District Court dismissing appellant’s claim for benefits under Section 205(g) of the Social Security Act, 42 U.S.C.A. § 405(g). Appellant had filed his application for disability insurance benefits, which had been determined adversely to him by the Bureau of Old Age and Survivors Insurance of the Social Security Administration. After such adverse determination, appellant had requested a hearing before a Referee, who, in a comprehensive opinion, ruled that he was not entitled to such benefits. Upon request for review of the decision of the Referee, the Appeals Council of the Department of Health, Education and Welfare, affirmed the findings and conclusions of the Referee. The District Court, on review of the decision of the Appeals Council, acting for the Secretary, found that appellant, because of the condition of his health, was “under severe handicap, and a failure to succeed in this cause will apparently make of him a dependent upon charity until he reaches a sufficient age to draw social benefits under other laws. But the findings of the Referee are supported by substantial evidence and are therefore conclusive. He has found that the claimant has not sustained the burden of proving that he is suffering from a physical impairment which could be expected to result in death, or to be of long continued or indefinite duration, or that he is not capable of engaging in any substantial, gainful activity.” The court further held that “there is ample proof to sustain the findings of the Referee that this claimant is a man of intelligence and some education and has the ability to perform services and duties other than those of his accustomed occupation.”
However, in the determination of this appeal,’ the controlling questions are: (1) what can appellant do; and (2) what employment opportunities are there for-a man who can do only what appellant can do?
In a similar case, Kerner v. Flemming, 2 Cir., 283 F.2d 916, 921, the court held, after reviewing the record, that there was no substantial evidence that would enable the Secretary to make any reasonable determination whether the applicant was unable to engage in substantial and gainful activity. In its opinion, the court said:
“Such a determination requires resolution of two issues — what can applicant do, and what employment opportunities are there for a man who can do only what applicant can do? Mere theoretical ability to engage in substantial gainful activity is not enough if no reasonable opportunity for this is available. * * * Here there was insufficient evidence on either issue * * *.”
We have before us no substantial evidence as to what appellant can do, or as to his employment opportunities, and, further, we have no reasoned determination and findings on these controlling issues. Accordingly, the order appealed from is reversed with directions that the case be remanded to the Secretary of Health, Education and Welfare in order that further evidence be taken and findings be made on the above-mentioned issues.
Question: Did the court determine that it had jurisdiction to hear this case?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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sc_authoritydecision
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B
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the 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.
NORWOOD et al. v. HARRISON et al.
No. 72-77.
Argued February 20-21, 1973 —
Decided June 25, 1973
Burger, C. J., delivered the opinion of the Court, in which Stewart, White, Marshall, Blackmun, Powell, and Rehnquist, JJ., joined. Douglas and Brennan, JJ., concurred in the result.
Melvyn R. Leventhal argued the cause for appellants. With him on the briefs were Jack Greenberg, James M. Nabrit III, Charles Stephen Ralston, Norman J. Chach-kin, and Anthony G. Amsterdam.
William A. Attain, First Assistant Attorney General of Mississippi, argued the cause for appellees. With him on the brief were A. F. Summer, Attorney General, and Heber Ladner, Jr., Special Assistant Attorney General.
Solicitor General Griswold, Assistant Attorney General Pottinger, Deputy Solicitor General Wallace, Harriet S. Shapiro, Brian K. Landsberg, and Thomas M. Keeling filed a memorandum for the United States as amicus curiae urging reversal.
Mr. Chief Justice Burger
delivered the opinion of the Court.
A three-judge District Court sustained the validity of a Mississippi statutory program under which textbooks are purchased by the State and lent to students in both public and private schools, without reference to whether any participating private school has racially discriminatory policies. 340 F. Supp. 1003 (ND Miss. 1972). We noted probable jurisdiction, 409 U. S. 839.
I
Appellants, who are parents of four schoolchildren in Tunica County, Mississippi, filed a class action on behalf of students throughout Mississippi to enjoin in part the enforcement of the Mississippi textbook lending program. The complaint alleged that certain of the private schools excluded students on the basis of race and that, by supplying textbooks to students attending such private schools, appellees, acting for the State, have provided direct state aid to racially segregated education. It was also alleged that the textbook aid program thereby impeded the process of fully desegregating public schools, in violation of appellants’ constitutional rights.
Private schools in Mississippi have experienced a marked growth in recent years. As recently as the 1963-1964 school year, there were only 17 private schools other than Catholic schools; the total enrollment was 2,362 students. In these nonpublic schools 916 students were Negro, and 192 of these were enrolled in special schools for retarded, orphaned, or abandoned children. By September 1970, the number of private non-Catholic schools had increased to 155 with a student population estimated at 42,000, virtually all white. Ap-pellees do not challenge the statement, which is fully documented in appellants’ brief, that “the creation and enlargement of these [private] academies occurred simultaneously with major events in the desegregation of public schools . ...”
This case does not raise any question as to the right of citizens to maintain private schools with admission limited to students of particular national origins, race, or religion or of the authority of a State to allow such schools. See Pierce v. Society of Sisters, 268 U. S. 510 (1925). The narrow issue before us, rather, is a particular form of tangible assistance the State provides to students in private schools in common with all other students by lending textbooks under the State’s 33-year-old program for providing free textbooks to all the children of the State. The program dates back to a 1940 appeal for improved educational facilities by the Governor of Mississippi to the state legislature. The legislature then established a state textbook purchasing board and authorized it to select, purchase, and distribute free textbooks for all schoolchildren through the first eight grades. In 1942, the program was extended to cover all high school students, and, as codified, the statutory authorization remains substantially unchanged. Miss. Code Ann. § 6634 et seq. (1942).
Administration of the textbook program is vested in the Mississippi Textbook Purchasing Board, whose members include the Governor, the State Superintendent of Education, and three experienced educators appointed by the Governor for four-year terms. Id., §§ 6634, 6641. The Board employs a full-time administrator as its Executive Secretary. Textbooks may be purchased only “for use in those courses set up in the state course of study adopted by the State Board of Education, or courses established by special acts of the Legislature.” Id., § 6646. For each course of study, there is a "rating committee” composed of appointed members, id., § 6641 (l)(d), and only those books approved by the relevant rating committee may be purchased from publishers at a price which cannot “be higher than the lowest prices at which the same books are being sold anywhere in the United States.” Id., §6646 (1).
The books are kept at a central book repository in Jackson. Id., § 6641 (1) (f). Appellees send to each school district, and, in recent years, to each private school requisition forms listing approved textbooks available from the State for free distribution to students. The local school district or the private school sends a requisition form to the Purchasing Board for approval by the Executive Secretary, who in turn forwards the approved form to the Jackson book repository where the order is routinely filled and the requested books shipped directly to the school district or the private school.
The District Court found that “34,000 students are presently receiving state-owned textbooks while attending 107 all-white, nonsectarian private schools which have been formed throughout the state since the inception of public school desegregation.” 340 F. Supp., at 1011. During the 1970-1971 school year, these schools held 173,424 books, for which Mississippi paid $490,239. The annual expenditure for replacements or new texts is approximately $6 per pupil, or a total of approximately $207,000 for the students enrolled in the participating private segregated academies, exclusive of mailing costs which are borne by the State as well.
In dismissing the complaint the District Court stressed, first, that the statutory scheme was not motivated by a desire to further racial segregation in the public schools, having been enacted first in 1940, long before this Court’s decision in Brown v. Board of Education, 347 U. S. 483 (1954), and consequently, long before there was any occasion to have a policy or reason to foster the development of racially segregated private academies. Second, the District Court took note that providing textbooks to private sectarian schools had been approved by this Court in Board of Education v. Allen, 392 U. S. 236 (1968), and that “[t]he essential inquiry, therefore, is whether we should apply a more stringent standard for determining what constitutes state aid to a school in the context of the Fourteenth Amendment’s ban against denial of the equal protection of the law than the Supreme Court has applied in First Amendment cases.” 340 F. Supp., at 1011. The District Court held no more stringent standard should apply on the facts of this case, since, as in Allen, the books were provided to the students and not to the schools. Finally, the District Court concluded that the textbook loans did not interfere with or impede the State’s acknowledged duty to establish a unitary school system under this Court's holding in Green v. County School Board, 391 U. S. 430, 437 (1968), since
“[depriving any segment of school children of state-owned textbooks at this point in time is not necessary for the establishment or maintenance of state-wide unitary schools. Indeed, the public schools which plaintiffs acknowledge were fully established as unitary schools throughout the state no later than 1970-71, continue to attract 90% of the state's educable children. There is no showing that any child enrolled in private school, if deprived of free textbooks, would withdraw from private school and subsequently enroll in the public schools.'' 340 F. Supp., at 1013.
II
In Pierce v. Society of Sisters, 268 U. S. 510 (1925), the Court held that a State’s role in the education of its citizens must yield to the right of parents to provide an equivalent education for their children in a privately operated school of the parents’ choice. In the 1971 Term we reaffirmed the vitality of Pierce, in Wisconsin v. Yoder, 406 U. S. 205, 213 (1972), and there has been no suggestion in the present case that we alter our view of Pierce. Yet the Court’s holding in Pierce is not without limits. As Mr. Justice White observed in his concurring opinion in Yoder, Pierce “held simply that while a State may posit [educational] standards, it may not pre-empt the educational process by requiring children to attend public schools.” Id., at 239.
Appellees fail to recognize the limited scope of Pierce when they urge that the right of parents to send their children to private schools under that holding is at stake in this case. The suggestion is made that the rights of parents under Pierce would be undermined were the lending of free textbooks denied to those who attend private schools — in other words, that schoolchildren who attend private schools might be deprived of the equal protection of the laws were they invidiously classified under the state textbook loan program simply because their parents had exercised the constitutionally protected choice to send the children to private schools.
We do not see the issue in appellees’ terms. In Pierce, the Court affirmed the right of private schools to exist and to operate; it said nothing of any supposed right of private or parochial schools to share with public schools in state largesse, on an equal basis or otherwise. It has never been held that if private schools are not given some share of public funds allocated for education that such schools are isolated into a classification violative of the Equal Protection Clause. It is one thing to say that a State may not prohibit the maintenance of private schools and quite another to say that such schools must, as a matter of equal protection, receive state aid.
The appellees intimate that the State must provide assistance to private schools equivalent to that which it provides to public schools without regard to whether the private schools discriminate on racial grounds. Clearly, the State need not. Even as to church-sponsored schools whose policies are nondiscriminatory, any absolute right to equal aid was negated, at least by implication, in Lemon v. Kurtzman, 403 U. S. 602 (1971). The Religion Clauses of the First Amendment strictly confine state aid to sectarian education. Even assuming, therefore, that the Equal Protection Clause might require state aid to be granted to private nonsectarian schools in some circumstances — health care or textbooks, for example — a State could rationally conclude as a matter of legislative policy that constitutional neutrality as to sectarian schools might best be achieved by withholding all state assistance. See San Antonio Independent School District v. Rodriguez, 411 U. S. 1 (1973). In the same way, a State's special interest in elevating the quality of education in both public and private schools does not mean that the State must grant aid to private schools without regard to constitutionally mandated standards forbidding state-supported discrimination. That the Constitution may compel toleration of private discrimination in some circumstances does not mean that it requires state support for such discrimination.
Ill
The District Court’s holding therefore raises the question whether and on what terms a State may — as a matter of legislative policy- — provide tangible assistance to students attending private schools. Appellants assert, not only that the private schools are in fact racially discriminatory, but also that aid to them in any form is in derogation of the State’s obligation not to support discrimination in education.
This Court has consistently affirmed decisions enjoining state tuition grants to students attending racially discriminatory private schools. A textbook lending program is not legally distinguishable from the forms of state assistance foreclosed by the prior cases. Free textbooks, like tuition grants directed to private school students, are a form of financial assistance inuring to the benefit of the private schools themselves. An inescapable educational cost for students in both public and private schools is the expense of providing all necessary-learning materials. When, as here, that necessary expense is borne by the State, the economic consequence is to give aid to the enterprise; if the school engages in discriminatory practices the State by tangible aid in the form of textbooks thereby gives support to such discrimination. Racial discrimination in state-operated schools is barred by the Constitution and “[i]t is also axiomatic that a state may not induce, encourage or promote private persons to accomplish what it is constitutionally forbidden to accomplish.” Lee v. Macon County Board of Education, 267 F. Supp. 458, 475-476 (MD Ala. 1967).
We do not suggest that a State violates its constitutional duty merely because it has provided any form of state service that benefits private schools said to be racially discriminatory. Textbooks are a basic educational tool and, like tuition grants, they are provided only in connection with schools; they are to be distinguished from generalized services government might provide to schools in common with others. Moreover, the textbooks provided to private school students by the State in this case are a form of assistance readily available from sources entirely independent of the State — unlike, for example, “such necessities of life as electricity, water, and police and fire protection.” Moose Lodge No. 107 v. Irvis, 407 U. S. 163, 173 (1972). The State has neither an absolute nor operating monopoly on the procurement of school textbooks; anyone can purchase them on the open market.
The District Court laid great stress on the absence of a showing by appellants that “any child enrolled in private school, if deprived of free textbooks, would withdraw from private school and subsequently enroll in the public schools.” 340 F. Supp., at 1013. We can accept this factual assertion; we cannot and do not know, on this record at least, whether state textbook assistance is the determinative factor in the enrollment of any students in any of the private schools in Mississippi. We do not agree with the District Court in its analysis of the legal consequences of this uncertainty, for the Constitution does not permit the State to aid discrimination even when there is no precise causal relationship between state financial aid to a private school and the continued well-being of that school. A State may not grant the type of tangible financial aid here involved if that aid has a significant tendency to facilitate, reinforce, and support private discrimination. “[Decisions on the constitutionality of state involvement in private discrimination do not turn on whether the state aid adds up to 51 percent or adds up to only 49 per cent of the support of the segregated institution.” Poindexter v. Louisiana Financial Assistance Comm’n, 275 F. Supp. 833, 854 (ED La. 1967).
The recurring theme of appellees’ argument is a sympathetic one — that the State’s textbook loan program is extended to students who attend racially segregated private schools only because the State sincerely wishes to foster quality education for all Mississippi children, and, to that end, has taken steps to insure that no sub-group of schoolchildren will be deprived of an important educational tool merely because their parents have chosen to enroll them in segregated private schools. We need not assume that the State’s textbook aid to private schools has been motivated by other than a sincere interest in the educational welfare of all Mississippi children. But good intentions as to one valid objective do not serve to negate the State’s involvement in violation of a constitutional duty. “The existence of a permissible purpose cannot sustain an action that has an impermissible effect.” Wright v. Council of City of Emporia, 407 U. S. 451, 462 (1972). The Equal Protection Clause would be a sterile promise if state involvement in possible private activity could be shielded altogether from constitutional scrutiny simply because its ultimate end was not discrimination but some higher goal.
The District Court offered as further support for its holding the finding that Mississippi’s public schools “were fully established as unitary schools throughout the state no later than 1970-71 [and] continue to attract 90% of the state’s educable children.” 340 F. Supp., at 1013. We note, however, that overall statewide attendance figures do not fully and accurately reflect the impact of private schools in particular school districts. In any event, the constitutional infirmity of the Mississippi textbook program is that it significantly aids the organization and continuation of a separate system of private schools which, under the District Court holding, may discriminate if they so desire. A State’s constitutional obligation requires it to steer clear, not only of operating the old dual system of racially segregated schools, but also of giving significant aid to institutions that practice racial or other invidious discrimination. That the State’s public schools are now fully unitary, as the District Court found, is irrelevant.
IV
Appellees and the District Court also placed great reliance on our decisions in Everson v. Board of Education, 330 U. S. 1 (1947), and Board of Education v. Allen, 392 U. S. 236 (1968). In Everson, we held that the Establishment Clause of the First Amendment did not prohibit New Jersey from “spending tax-raised funds to pay the bus fares of parochial school pupils as a part of a general program under which it pays the fares of pupils attending public and other schools.” 330 U. S., at 17. Allen, following Everson, sustained a New York law requiring school textbooks to be lent free of charge to all students, including those in attendance at parochial schools, in specified grades.
Neither Allen nor Everson is dispositive of the issue before us in this case. Religious schools “pursue two goals, religious instruction and secular education.” Board of Education v. Allen, supra, at 245. And, where carefully limited so as to avoid the prohibitions of the “effect” and “entanglement” tests, States may assist church-related schools in performing their secular functions, Committee for Public Education v. Nyquist, post, at 774, 775; Levitt v. Committee for Public Education, post, at 481, not only because the States have a substantial interest in the quality of education being provided by private schools, see Cochran v. Louisiana Board of Education, 281 U. S. 370, 375 (1930), but more importantly because assistance properly confined to the secular functions of sectarian schools does not substantially promote the readily identifiable religious mission of those schools and it does not interfere with the free exercise rights of others.
Like a sectarian school, a private school — even one that discriminates — fulfills an important educational function; however, the difference is that in the context of this case the legitimate educational function cannot be isolated from discriminatory practices — if such in fact exist. Under Brown v. Board of Education, 347 U. S. 483 (1954), discriminatory treatment exerts a pervasive influence on the entire educational process. The private school that closes its doors to defined groups of students on the basis of constitutionally suspect criteria manifests, by its own actions, that its educational processes are based on private belief that segregation is desirable in education. There is no reason to discriminate against students for reasons wholly unrelated to individual merit unless the artificial barriers are considered an essential part of the educational message to be communicated to the students who are admitted. Such private bias is not barred by the Constitution, nor does it invoke any sanction of laws, but neither can it call on the Constitution for material aid from the State.
Our decisions under the Establishment Clause reflect the “internal tension in the First Amendment between the Establishment Clause and the Free Exercise Clause,” Tilton v. Richardson, 403 U. S. 672, 677 (1971). This does not mean, as we have already suggested, that a State is constitutionally obligated to provide even “neutral” services to sectarian schools. But the transcendent value of free religious exercise in our constitutional scheme leaves room for “play in the joints” to the extent of cautiously delineated secular governmental assistance to religious schools, despite the fact that such assistance touches on the conflicting values of the Establishment Clause by indirectly benefiting the religious schools and their sponsors.
In contrast, although the Constitution does not proscribe private bias, it places no value on discrimination as it does on the values inherent in the Free Exercise Clause. Invidious private discrimination may be characterized as a form of exercising freedom of association protected by the First Amendment, but it has never been accorded affirmative constitutional protections. And even some private discrimination is subject to special remedial legislation in certain circumstances under § 2 of the Thirteenth Amendment; Congress has made such discrimination unlawful in other significant contexts. However narrow may be the channel of permissible state aid to sectarian schools, Nyquist, supra; Levitt, supra, it permits a greater degree of state assistance than may be given to private schools which engage in discriminatory practices that would be unlawful in a public school system.
Y
At oral argument, appellees expressed concern over the process of determining the scope of relief to be granted should appellants prevail on the merits. That aspect of the case presents problems but the procedural details need not be fully resolved here. The District Court’s assumption that textbook loans were permissible, even to racially discriminating private schools, obviated any necessity for that court to determine whether some of the private schools could properly be classified as “racially discriminatory” and how that determination might best be made. We construe the complaint as contemplating an individual determination as to each private school in Mississippi whose students now receive textbooks under the State’s textbook loan program; relief on an assumption that all private schools were discriminating, thus foreclosing individualized consideration, would not be appropriate.
The proper injunctive relief can be granted without implying a finding that all the private schools alleged to be receiving textbook aid are in fact practicing restrictive admission policies. Private schools are not fungible and the fact that some or even most may practice discrimination does not warrant blanket condemnation. The District Court can appropriately direct the appellees to submit for approval a certification procedure under which any school seeking textbooks for its pupils may apply for participation on behalf of pupils. The certification by the school to the Mississippi Textbook Purchasing Board should, among other factors, affirmatively declare its admission policies and practices, state the number of its racially and religiously identifiable minority students and such other relevant data as is consistent with this opinion. The State’s certification of eligibility would, of course, be subject to judicial review.
This school-by-school determination may be cumbersome but no more so than the State’s process of ascertaining compliance with educational standards. No presumptions flow from mere allegations; no one can be required, consistent with due process, to prove the absence of violation of law.
The judgment of the District Court is vacated and the case is remanded for further proceedings consistent with this opinion.
So ordered.
Me. Justice Douglas and Mr. Justice Brennan concur in the result.
App. 40-41.
Brief for Appellants 8-9.
See Norwood v. Harrison, 340 F. Supp. 1003, 1007 (ND Miss. 1972).
The regulation for distribution of state-owned textbooks from 1940 through 1970 provided as follows:
“For the distribution of free textbooks the local control will be placed in the hands of the County Superintendent of Education. All requisitions for books shall be made through him and all shipments of books shall be invoiced through him. At his discretion he may set up certain regulations governing the distribution of books within the county, such regulations not to conflict with the regulations adopted by the State Textbook Board or provisions of the Free Textbook Act.”
This regulation was revised on October 14, 1970, to read as follows:
“Public Schools. The administration of the textbook program in the public schools shall be the responsibility of the administrative heads of the county units, consolidated districts, and municipal separate districts set up by the Legislature. All textbook transactions between the public schools and the State shall be carried on through them. It shall be the duty of these local custodians to render all reports required by the State; to place orders for textbooks for the pupils in their schools ....
“Private Schools. Private and parochial school programs shall be the responsibility of the State Textbook Board. All textbook transactions will be carried out between the Board and the administrative heads of these schools. Their duties shall be the same as outlined above for public schools.”
The variation in the figures as to schools and students is accounted for by the District Court’s omission of particular kinds of schools in making the findings. The earlier and higher figures are found in the briefs and are not disputed.
Brown v. South Carolina Board of Education, 296 F. Supp. 199 (SC), aff’d per curiam, 393 U. S. 222 (1968); Poindexter v. Louisiana Financial Assistance Comm’n, 275 F. Supp. 833 (ED La. 1967), aff’d per curiam, 389 U. S. 571 (1968). See Wallace v. United States, 389 U. S. 215 (1967), aff’g Lee v. Macon County Board of Education, 267 F. Supp. 458, 475 (MD Ala.). Mississippi’s tuition grant programs were invalidated in Coffey v. State Educational Finance Comm’n, 296 F. Supp. 1389 (SD Miss. 1969); Coffey v. State Educational Finance Comm’n, SD Miss., CA No. 2906, decided Sept. 2,1970 (unreported). The latter case involved a statute which provided for tuition loans rather than tuition grants. See Green v. Connolly, 330 F. Supp. 1150 (DC), aff’d sub nom. Coit v. Green, 404 U. S. 997 (1971).
Appellees misperceive the “child benefit” theory of our cases decided under the Religion Clauses of the First Amendment. See, e. g., Cochran v. Louisiana Board of Education, 281 U. S. 370 (1930), and Board of Education v. Allen, 392 U. S. 236 (1968). In those cases the Court observed that the direct financial benefit of textbook loans to students is “to parents and children, not to schools,” id,, at 244, in the sense that parents and children — not schools— would in most instances be required to procure their textbooks if the State did not. But the Court has never denied that “free books make it more likely that some children choose to attend a sectarian school,” ibid., just as in other cases involving aid to sectarian schools we have acknowledged that the various forms of state assistance “surely aid these [religious] institutions ... in the sense that religious bodies would otherwise have been forced to find other sources from which to finance these services.” Tilton v. Richardson, 403 U. S. 672, 679 (1971). Plainly, religion benefits indirectly from governmental aid to parents and children; nevertheless, “[t]hat religion may indirectly benefit from governmental aid . . . does not convert that aid into an impermissible establishment of religion.” Lemon v. Kurtzman, 403 U. S. 602, 664 (1971) (opinion of White, J.).
The leeway for indirect aid to sectarian schools has no place in defining the permissible scope of state aid to private racially discriminatory schools. “State support of segregated schools through any arrangement, management, funds, or property cannot be squared with the [Fourteenth] Amendment’s command that no State shall deny to any person within its jurisdiction the equal protection of the laws.” Cooper v. Aaron, 358 U. S. 1, 19 (1958). Thus Mr. Justice White, the author of the Court’s opinion in Allen, supra, and a dissenter in Lemon v. Kurtzman, supra, noted there that in his view, legislation providing assistance to any sectarian school which restricted entry on racial or religious grounds would, to that extent, be unconstitutional. Lemon, supra, at 671 n. 2. See Part IV, infra.
Accord, Griffin v. State Board of Education, 296 F. Supp. 1178, 1181 (ED Va. 1969), superseding Griffin v. State Board of Education, 239 F. Supp. 560 (ED Va. 1965); Brown v. South Carolina Board of Education, supra.
In Tunica County, for example, where appellants reside, in response to Green v. Connally, supra, and Alexander v. Holmes County Board of Education, 396 U. S. 19 (1969), all white children were withdrawn from public schools and placed in a private academy housed in local church facilities and staffed by the principal and 17 high school teachers of the county system, who resigned in mid-year to accept jobs at the new academy. See United States v. Tunica County School District, 323 F. Supp. 1019 (ND Miss. 1970), aff’d, 440 F. 2d 377 (CA5 1971). As of the time of the filing of this lawsuit, the successor Tunica Institute of Learning enrolled 495 students, all white, and would not attest to an open enrollment policy. Similar histories of Holmes County, Canton Municipal Separate School District, Jackson Municipal Separate School District, Amite County, Indianola Municipal Separate School District, and Grenada Municipal Separate School District are recited, without challenge by appellees, in Brief for Appellants 14r-19.
See, e. g., Griffin v. Breekenridge, 403 U. S. 88 (1971); Jones v. Alfred H. Mayer Co., 392 U. S. 409 (1968); 42 U. S. C. § 2000a et seq. (barring discrimination in public accommodations); 42 U. S. C. § 2000e et seq. (barring discrimination in private employment); 42 U. S. C. § 3601 et seq. (barring discrimination in private housing transactions).
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_respond2_7_2
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C
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the gender of this litigant. Use names to classify the party's sex only if there is little ambiguity (e.g., the sex of "Chris" should be coded as "not ascertained").
FINN et al. v. CHILDS CO.
No. 147, Docket 21521.
United States Court of Appeals Second Circuit
Argued Feb. 27, 1950.
Decided April 5, 1950.
Ben A. Matthews, of New York City (Harper & Matthews, Vincent P. Uihlein, and Cornelius D. Crowley, Jr., all of New York City, on the brief), for respondent-appellant.
George Zolotar, Special Counsel, Securities and Exchange Commission, of New York City (Roger S. Foster, General Counsel, David Ferber, of Washington, D. C., and Lawrence M. Greene, Special Counsel, Securities and Exchange Commission, of Philadelphia, Pa., Richard V. Bandler, of New York City, and C. Eugene Webb, of Washington, D. C.), for Securities and Exchange Commission.
Joseph Lorenz, of New York City (Lorenz, Finn & Lorenz, of New York City, on the brief), for trustee-appellee John F. X. Finn and appellee Lorenz, Finn & Lorenz.
William P. Palmer, of New York City (Root, Ballantine, Harlan, Bushby & Palmer, L. Robert Driver, Jr., and Adam Yarmolinsky, all of New York City, on the brief), for appellees Everett Frank and William S. Hernon.
Samuel Masia, of New York City (Archibald Palmer, of New York City, appellee pro se), for appellee Archibald Palmer.
Harold P. Seligson, of New York City (Marshall, Bratter, Seligson & Klein, of New York City, on the brief), for appellees Protective Committee for Debentures and Marshall, Bratter, Seligson & Klein.
Hoch Reid, of New York City (Ehrich, Royall, Wheeler & Holland and Ralph Royall, all of New York City, on the brief), for appellee Ehrich, Royall, Wheeler & Holland.
Karelsen, Karelsen & Rubin, of New York City, for appellee Bernard Reis and Co.
Abraham K. Weber, of New York City, appellee pro se.
Holmes, Rogers & Carpenter, of New York City (Charles P. Rogers and Oliver C. Carpenter, both of New York City, of counsel), for appellees Thompson Preferred Stockholders’ Committee.
Hetkin, Jervis & Hetkin, of New York City (Alfred H. Hetkin and Herman Jervis, both of New York City, of counsel), appel-lees pro se.
Levin & Weintraub, of New York City (Benjamin Weintraub, of New York City, of counsel), for appellees New York Credit Men’s Association and pro se.
Bergerman & Hourwich and Samuel A. Mehlman, both of New York City (Milton M. Bergerman, of New York City, of counsel), for appellees McMeekan Committee and Bergerman & Hourwich and Samuel A. Mehlman pro se.
Karelsen, Karelsen & Rubin and Paul J. Kern, all of New York City (Morton G. Rosenberg, of New York City, of counsel), for appellees Durrell Preferred Stockholders Committee and Karelsen, Karelsen & Rubin and Paul J. Kern pro se.
Weinstein & Levinson, of New York City (Frank Weinstein and Samuel J. Levin-son, both of New York City, of counsel), appellees pro se.
Murphy, Block, Sullivan & Sawyer, of New York City (John Dwight Sullivan, of New York City, of counsel), for appellees Common Stockholders’ Committee and Murphy, Block, Sullivan & Sawyer pro se.
Before CLARK, GOODRICH, and FRANK, Circuit Judges.
. Annexed to this opinion as an appendix at its end is a table showing in detail the various amounts claimed, recommended, and allowed.
CLARK, Circuit Judge.
On petitions of various parties the district court granted final allowances for counsel fees and expenses of $964,439.36 in the proceedings for the reorganization of Childs Company under Chapter X of the Bankruptcy Act, 11 U.S.C.A. § 501 et seq. Acting upon leave granted by this court, Childs Company, the. reorganized debtor, has appealed from awards amounting to $954,350 ; it asks no review of items allowed in reimbursement of expenses — $6,627.10—or of two other minor awards to the Indenture Trustee and its attorneys amounting to $4,462.26. It urges as to the items appealed from that the awards should not exceed $600,000; while the Securities and Exchange Commission, appearing by virtue of § 208 of the Act, 11 U.S.C.A. § 608, and taking the same position it took below, urges that these awards should not exceed $750,-000.
The reorganization was commenced by voluntary petition on August 26, 1943, and completed by the consummation of a plan on March- 31, 1948 — a period of four years and seven months. The filing of the voluntary petition followed immediately upon the dismissal by the court of an involuntary petition which had been filed against it. See In re Childs Co., D.C.S.D.N.Y., 52 F. Supp. 89. The court appointed as trustee Mr. John F. X. Finn, well-known 'lawyer, author, and teacher; and he selected as his counsel his law firm of Lorenz, Finn & Lorenz upon the understanding that allowances would ' not be shared. The debtor had operated a chain of medium-priced restaurants, numbering 77 in 1943, and had made some unfortunate real estate acquisitions. The trustee was immediately active in securing modification of many burdensome leases of real estate and in the readjustment of mortgages and sales -of property. Several of these matters have been heard upon appeal. 415 Fifth Ave. Co. v. Finn, 2 Cir., 146 F.2d 592, certiorari denied Finn v. 415 Fifth Ave. Co., 325 U.S. 856, 65 S.Ct. 1185, 89 L.Ed. 1976; Meighan v. Finn, 2 Cir., 146 F.2d 594, affirmed Finn v. Meighan, 325 U.S. 300, 65 S.Ct. 1147, 89 L.Ed. 1624; Finn v. 415 Fifth Ave. Co., 2 Cir., 153 F.2d 501, certiorari denied 415 Fifth Ave. Co. v. Finn, 328 U.S. 838, 66 S.Ct. 1014, 90 L.Ed. 1614; In re Childs Co., 2 Cir., 163 F.2d 379. The trustee also took action against former officers of the company, obtaining a settlement of certain of his claims and pressing to a lengthy trial an action (not yet decided) involving other claims. So far as concerns conflicts among creditors and various classes of security holders, the reorganization seems to have been unusually free of controversy. Because of high wartime earnings and these activities of the trustee it soon became apparent that all creditors would be paid in full with a substantial equity for the stockholders. Developing a satisfactory plan of reorganization was somewhat more troublesome. The first plan approved by the district court, a capitalization entirely of common stock, divided 76.7% to holders of old preferred stock and 23.3% to holders of the old common stock, was defeated by vote of the common stockholders. A subsequent plan, involving issuance of both preferred and common stock, with voting power divided roughly 75% to the old preferred, and 25% to the old common, stockholders, was approved by both classes and eventually consummated.
The value of the new company, as found by the district judge for purposes of both plans, was $9,980,000; this estimate was based on predicted future earnings, and the history of the company since reorganization suggests that it may have been unduly optimistic. The equity value shown on the trustee’s books on the day of consummation, reflecting revaluation of assets made by court-appointed appraisers, was $6,001,762. Even this figure was more liberal than the valuation made by traders on the stock exchanges.
The claims for allowance of the twenty-four parties now before us totaled $1,417,-300. The allowances as made included $182,500 to the trustee and $535,000 to his counsel, $85,500 to eleven different representatives of creditors, $104,350 to seven different representatives of preferred stockholders, and $47,000 to four different representatives of common stockholders. In addition to this total of $954,350 and the other small allowances noted above which are not under review there were other expenses incurred in the reorganization of $180,662.76, a grand total of $1,145,102.12 or more than 26% of the net income of $4,329,472 received during the reorganization. This was in addition to the salaries of the debtor’s administrative and executive staff, retained in full by the trustee except for the one office of Chairman of the Board. The aggregate salaries of these officials ranged from $62,500 to $87,600 a year. In addition a special attorney handling labor problems was continued in the employ of the debtor at an annual retainer of $20,000. It may be noted that the amounts granted as allowances far exceed the trustee’s estimate of the reorganization expenses in the two plans presented — $350,000 in the first plan and $400,000 in the plan finally confirmed — beyond interim allowances to him and his counsel which had reached $231,000 by the time of the latter plan.
The fixing of allowances has been called “the most thankless and delicate task in all of the problems of judicial reorganization,” Frank, Epithetical Jurisprudence and the Work of the Securities and Exchange Commission in the Administration of Chapter X of the Bankruptcy Act, 18 KY.U.L.Q. Rev. 317, 349-50, 1941, and “one of the most disagreeable and perplexing tasks which falls to the lot of a District Judge,” Silver v. Scullin Steel Co., 8 Cir., 98 F.2d 503, 506. Recognizing this, and recognizing, too, the peculiar advantage which the district judge has by virtue of his intimate knowledge of the whole history of the reorganization, appellate judges can come to the conclusion that the lower court has exceeded its discretion in granting allowances only with the greatest reluctance. That must be peculiarly so here where the reorganization was concededly successful. Nevertheless we cannot ignore the fact that the fees allowed amount to ten per cent of the estate upon the value originally set, and much more, even approaching twenty per cent, on the debtor’s claims of value at the close of the reorganization. Even in a small estate such a division of capital would seem large; in an estate of millions we can view it only as princely. We have often been admonished by the Supreme Court that in allowances of this sort we must avoid “vicarious generosity,” In re Gilbert, 276 U.S. 294, 48 S. Ct. 309, 72 L.Ed. 580, and that “the desire to reduce the cost of reorganization [was] one of the controlling reasons for the enactment” of the bankruptcy statutes. Callaghan v. Reconstruction Finance Corp., 297 U.S. 464, 469, 56 S.Ct. 519, 521, 80 L.Ed. 804; Realty Associates Securities Corp. v. O’Connor, 295 U.S. 295, 299, 55 S.Ct. 663, 79 L.Ed. 1446; Dickinson Industrial Site, Inc., v. Cowan, 309 U.S. 382, 388, 60 S.Ct. 595, 84 L.Ed. 819; Brown v. Gerdes, 321 U.S. 178, 181-182, 64 S.Ct. 487, 88 L.Ed. 659; In re New York Investors, 2 Cir., 79 F.2d 182, 185, certiorari denied Endelman v. Reconstruction Finance Corp., 296 U.S. 649, 56 S.Ct. 308, 80 L.Ed. 462. To permit allowances of the magnitude involved here seems to us to contravene a fundamental policy of the governing statute. We take note of the somewhat bitter dispute as to the drain upon the working capital of the newly reorganized company and its present vicissitudes only to suggest that a successful reorganization placed in jeopardy by high fees allowed can point only to a dreary round with the debtor emerging from bankruptcy only to re-enter it after the lawyers are paid.
We have examined the applications for allowances of each of the parties involved here, with their detailed record of amount of time spent and the kind of work performed. We are not disposed to question the reasonableness of such fees by metropolitan practitioners for services of this kind when performed in the course of ordinary litigation. But in a reorganization proceeding, where the lawyers look for compensation to the debtor’s estate which may belong, in equity, largely to others than those who have requested their services, they should have in mind the fact that the total aggregate of fees must ¡bear some reasonable relation to the estate’s value. Under these circumstances they cannot always expect to be compensated at the same rate as in litigation of the usual kind. In re Standard Gas & Electric Co., 3 Cir., 106 F.2d 215, 216-217; In re Mt. Forest Fur Farms of America, 6 Cir., 157 F.2d 640, 647; London v. Snyder, 8 Cir., 163 F.2d 621.
In the process of fixing allowances it has been generally found desirable, first to determine the total amount which the estate can afford to bear and which it should justly pay for the benefit rendered to it, and thereafter to allocate this amount among.the various claimants according to the value of the services which they performed. In this way the burden which fees place upon the estate can be kept within reasonable limits, and the spirit of the Bankruptcy Act observed in allowing only one fee .for particular services, regardless of the number of attorneys involved in performing that service. Such a course, so often recommended by courts and commentators, Campbell v. Green, 5 Cir., 112 F.2d 143; In re Irving-Austin Bldg. Corp., 7 Cir., 100 F.2d 574, 579; Carlisle, Allowances in Corporate Reorganizations, A5 Corp. Reorg. 67, 68-9, 1942; Note, The Cost of Corporate Reorganization Under "the Chandler Act, 52 Harv.L.Rev. 1349, 1352, 1939, would have been advantageous here in providing an effective control against compensation for services which only duplicate what others have done. Under § 77B, 11 U.S.C.A. § 207, which Chapter X has succeeded, we refused to " allow any compensation to stockholders whose services were unnecessary, since a committee had been formed earlier to represent their interests. In re Porto Rican American Tobacco Co., 2 Cir., 117 F.2d 599. True, a main purpose of Chapter X was to “democratize” corporate reorganization; and the fact that one committee is already at work will now not be held to prevent committees or individuals intervening subsequently from receiving compensation. 6 Collier on Bankruptcy ¶13.02, pp. 4508-9, 14th Ed.1947. But this does not mean that the estate must now pay twice — or more — for the same services. It means rather that where duplication of services by succeeding committees is not practically avoidable the amount which the services are worth should now be divided pro rata among the various parties who performed the duplicative services, rather than awarded to the first party in the field.
Unfortunately this case shows much duplication. We have allowances to eleven different representatives of creditor interests, although it early became apparent that the creditors would be paid in full. We have allowances, to seven different representatives of preferred stockholder interests, and four different representatives of common stockholder interests. And yet it appears that the trustee and his counsel did a good job representing all these interests. In >our view this duplication deserved careful consideration in the fixing of allowances. Newman & Bisco v. Realty Associates Securities Corp., 2 Cir., 173 F.2d 609; Teton, Reorganization Revised, 48 Yale L.J. 573, 605, 1939. Heed should be paid, too, to the fact that many of the services for which compensation is claimed involved phases of the administration of the estate which the trustee was already handling more than satisfactorily. There should be much hesitation about compensating such wasteful labor. In re New York Investors, Inc., 2 Cir., 130 F.2d 90; Carlisle, supra, A5 Corp. Reorg. 67, at 78.
It is true that a substantial reduction in the compensation for duplicating services will not greatly reduce the total cost to the estate in view of the large portion of the total going to the trustee and his counsel. Since these officers successfully carried the laboring oar in the proceedings, they should properly receive a major share of both the glory and the compensation. We gladly acknowledge the value of the devoted services of the trustee and his counsel in accomplishing the successful reorganization. We should not have expected less from men of such public spirit and high professional standing. Even so, we feel the generous bounds so indicated were overstepped in awards of $182,500 to the trustee and $535,000 to his counsel — a total of $717,500 to both. The compensation allowed was at a rate of roughly $40,000' a year for the trustee and $120,000 a year for his firm. However reasonable such charges on the part of lawyers of this standing might have been when made in ordinary litigation, that, as we have seen, c:mnot be the criterion in proceedings of this nature. The trustee spent 8,123 hours working on the reorganization. He had no substantial overhead expenses, since the debtor supplied him with an office and a secretary. Thus his compensation for his services is at the rate of roughly $22.50 per hour. The records of the trustee’s counsel indicate that 28,905 hours were devoted to the reorganization, so that the firm was compensated at a rate of roughly $18.50 per hour. Much of this highly-paid activity was for services of a sort which could well be performed by an accurate and sensible clerk; thus the application refers to such tasks as proofreading, supervision of printing and mailing, card indexing claims, supervising payments, to creditors and the like. Of more significance is the fact that 18,340 of these lioprs, or almost two-thirds of the total, were put in by associates, rather than by the one partner in the firm who was extensively active in this proceeding. Neither trustee nor counsel was required to give up all other activities or public service for exclusive attention to this estate. Considering how high a proportion of the total value
of the estate the allowances to the trustee and his counsel involve, we are brought, not without reluctance, to the view that the amounts granted must be held excessive.
We should have had more doubts as to our conclusions just stated, had they not been re-enforced by those of the Securities and Exchange Commission. In a reasoned statement discussing each petition the Commission presented grounds for limiting the various allowances to sums totaling $750,-000. These amounts individually and collectively seem to us quite generous, indeed, perhaps, more so than some of us would have granted as judges of first instance. They appear to support the statement of the Commission’s able spokesman that these are not intended as minima to be increased by the court, but that in fact the Commission has raised its standards to match the compensation awarded by other judges in other cases. The district judge, however, did not discuss these recommendations, or indeed the separate claims at all; but after stating the over-all picture of the successful reorganization merely expressed his conclusions, allowing an aggregate of 27% more than the Commission had recommended. We are thus left in the dark as to his reasons for rejecting the specific recommendations.
Since the Commission’s recommendations represent the expert opinion of a disinterested agency skilled and experienced in reorganization affairs, they should be a valuable aid to a judge in performing a difficult task. 6 Collier on Bankruptcy ¶l3.02, p. 4498, 14th Ed.1947. Some courts have refused to give S. E. C. recommendations as to fees more weight than the suggestions of any other party, e. g., Cooke v. Bowersock, 8 Cir., 122 F.2d 977, 985; In re Detroit International Bridge Co., 6 Cir., 111 F.2d 235, 237-238. True, the Commission’s function in a reorganization proceeding is purely advisory; and it does not have the power to fix a maximum amount for fees which it has with regard to the reorganization of public utility holding companies under § 11 (f) of the Holding Company Act, 15 U.S. C.A. § 79k(f), and which the Interstate Commerce Commission has with regard to a railroad reorganization under § 77, sub. c, (2, 12), of the Bankruptcy Act, 11 U.S.C.A. § 205, sub., c, (2, 12). Nevertheless the figures presented by the S. E. C. are not “mere casual conjectures,” but are “recommendations based on closer study than a district judge could ordinarily give to such matters.” Frank, supra, 18 N.Y.U.L.Q. Rev. 317, 1941. We agree with District Judge Kirkpatrick’s apt statement “that the Commission is about the only wholly disinterested party in the proceeding and that, while it may not be entirely familiar with ‘the problems of making both ends meet in a law office’ referred to by counsel, its experience has made it thoroughly familiar with the general attitude of the Courts and the amounts of allowances made in scores of comparable proceedings.” In re Philadelphia & Reading Coal & Iron Co., D.C. E.D.Pa., 61 F.Supp. 120, 124. See also Note, 18 N.Y.U.L.Q.Rev. 399, 469-70, 1941, which suggests that the recommendations as to fees of the S. E. C. may be the only solution to the “very undesirable subjectivity with variations according to the particular judge under particular circumstances” which has made the fixing of fees seem often to ¡be “upon nothing more than an ipse dixit basis.” And see Securities and Exchange Commission, Tenth Annual Report 148, 1944, Fourteenth Annual Report 85-6, 1948. '
There are certain special cases which we 'must consider further. As to the others we have no other course- than to remand them for the further consideration of the district judge, particularly in the light of the recommendations made by the Commission. As applied at least to the circumstances disclosed in this case we think these recommendations should not be exceeded without definite findings and conclusions showing why this step is deemed necessary. These proceedings involving fees have already been pending almost two years; they should reach an end in order that the claimants may receive their just compensation and the debtor know definitely the obligations it faces. To the end of expediting this proceeding it may therefore be assumed—notwithstanding some personal doubts noted earlier—that the Commission’s recommendations, if adopted, may be considered affirmatively reasonable and properly allowable.
The first of the special cases we must now discuss involves three claimants who have received awards covering, in part at least, services performed before initiation of this proceeding. These are the McMeekan Committee, representing debenture holders and its counsel, Bergerman & Hourwich and Samuel- A. Mehlman, awarded $6,000 and $25,000 respectively; Archibald 'Palmer, attorney for holders of Debentures and Stock, awarded $7,500; and Weinstein & Levinson, attorneys for holders of Debentures, awarded $1,000. The S. E. C. held that the latter had not proved their claim, and therefore recommended that nothing be awarded them. But it thought the activities of the McMeekan Committee of benefit to the reorganization and recommended an award of $4,000 to it and $20,-000 to its counsel. And as to Palmer, who had been instrumental in securing dismissal of the prior involuntary proceeding, it held that he had “wittingly or unwittingly” uncovered information helpful in the reorganization, and recommended an award of $6,000 to him. Here we are constrained to disagree with the Commission in the basis it accepts for these awards.
Our doubts as to the legal basis for these awards, to the extent that they are based upon services rendered before the proceeding commenced, are made clearer by an analysis of them. The McMeekan Committee was formed in September, 1942, nine months before the filing of the involuntary petition and eleven months before the voluntary petition. The applications of the committee and its counsel show that much of their claims is based upon their services during this preliminary period. Those services consisted principally of urging debenture holders to refuse the voluntary exchange by which the debtor sought to avoid the necessity of reorganization. Such activity does not seem to us to have been of benefit to the estate, and it bears only the most tenuous relation to the plan of reorganization. So Palmer’s opposition to the involuntary petition, resulting in its dismissal, and the immediate filing of the voluntary petition, does not seem to us — upon the mere statement and without supporting findings —to show benefit to the estate. It did alter the course of the proceedings; but there is nothing to show it changed their ultimate end. The S. E. C. does suggest something additional, namely that Palmer’s examination of company officers and officials in his successful attempt to show collusion between petitioners and the debtor in this earlier petition did turn up evidence useful in establishing or in providing grounds of claim against these officials. As noted earlier, the trustee did make claim and prosecute an action covering these matters, though we have no findings or other information as to how much use he may have made of the material thus “unwittingly” turned up by Palmer. But if we accept, as we doubtless should, the view that his actions were thus beneficial, we still face the problem as to their compensability in this later proceeding. It is to be noted that in the original proceeding Judge Rifkind, though conceding the value of Palmer’s services for their intended purpose — the dismissal of that proceeding — held that they were not compensable under the Act. In re Childs Co., supra, D.C.S.D.N.Y., 52 F.Supp. 89. The anomaly of the grant here seems then apparent, particularly in the light of our decision in Palmer v. Kelby, 2 Cir., 138 F.2d 881, that services not com-pensable in the proceeding where rendered cannot be compensated for as contributing to a later proceeding.
But we think the issue should be faced more directly; shortly stated, the very tenuous statutory basis for any allowance does not seem to us to justify awards for uncertain and somewhat problematical benefits thus conferred on the administration of an estate before it has begun. The difficulty is in seeing where much of any line can be drawn to reduce the potential contribution for prior activities during the always-occurring prior period of financial stress. Activities supporting the management will be beneficial as aimed at avoiding the disaster of bankruptcy; while activities opposing its excesses will be beneficial as hastening the curative and cleansing course of reorganization. The cases emphasize that when such allowances are made they must be for work which “directly contributes” to the reorganization; thus we have held that compensation is not allowable from the estate “for the work of the attorneys in conserving the debtor’s assets” as well as in proposing an arrangement differing from the reorganization finally effected. In re Ulen & Co., 2 Cir., 130 F.2d 303, 305. See also In re Realty Associates Securities Corp., 2 Cir., 156 F.2d 480; In re Mt. Forest Fur Farms of America, supra, 6 Cir., 157 F.2d 640, at 649-50; In re Barium Realty Co., 6 Cir., 154 F.2d 562, 565; In re Building Development Co., 7 Cir., 98 F.2d 844; Stark v. Woods Bros. Corp., 8. Cir., 109 F.2d 969; In re Mortgage Guarantee Co., D.C.Md., 40 F.Supp. 226, 239-240. To have this direct connection it would seem that the services, must not only be ultimately beneficial in some clearly observable way, but also have been directed toward the specific rehabilitation of the debtor which actually took place. Chance and unwitting action, or activities a year or so earlier to control the course of creditor pressure upon the debtor, would seem clearly outside the narrow limits of the precedents, even if these in turn do go somewhat beyond the literal statutory language. See In re Realty Associates Securities Corp., supra.
This'would dispose of the pre-reorganization claims of the McMeekan Committee and their counsel as well as of Palmer. It also necessarily disposes of the claim of Weinstein & Levinson. We agree with the S. E. C. that this claim was not too thoroughly proven; but, in these aspects, it can rise no higher than Palmer’s .claim, since it concerned the dismissal of the involuntary proceedings. As to all this group of claims, however, fairness would appear to require a remand in order that the trial court may determine whether services were performed by these claimants after initiation of these proceedings for which compensation should be allowed. It does appear that the Committee and their counsel continued their activities throughout the proceeding, though some at least of their work appears to have been of an administrative nature, such as reviewing proposed real estate transactions or making studies and analyses of the debtor’s operations, and thus duplicative of work done by the trustee. There is more doubt on this record as to the continuing activities of the other two claimants; but since the approach below was on a different basis, we think they should have opportunity to make claim, if they can, on the basis which alone seems to us appropriate.
The final question concerns the allowances to Everett Frank and William S. Hernon, large stockholders who acted together in the negotiation, development, and support of the plan actually effected in what the S. E. C. terms the capacity of “reorganization managers.” They were then active in the consummation of the plan, Frank becoming chairman of the Board and Hernon a director of the reorganized company. The activity of these men was directly beneficial to the estate, and they normally would be entitled to compensation under § 243 of the Act, 11 U.S.C.A. § 643, which specifically provides for the compensation of individual security holders for their participation in a reorganization. The S. E. C. contends, however, that these claimants should be denied compensation under the prohibition contained in the second sentence of § 249, 11 U.S.C.A. § 649, reading as follows: “No compensation or reimbursement shall be allowed to any committee or attorney, or other person acting in the proceedings in a representative or fiduciary capacity, who at any time after assuming to act in such capacity has purchased or sold such claims or stock, or by whom or for whose account such claims or stock have, without the prior consent or subsequent approval of the judge, been otherwise acquired or transferred.”
The statute also requires any claimant for compensation to file with the court a statement under oath showing purchases or sales of stock, and Frank and Hernon had filed such statements showing extensive dealings in company stock. They were not formally a committee or concededly fiduciaries; but the S. E. C. contends that by the nature of their activities they were shown to be “acting in the proceedings in a representative or fiduciary capacity.” The district court ruled to the contrary and awarded them $20,000 for their services.
There is authoritative dictum to the effect that “in all cases persons who seek compensation for services or reimbursement for expenses are held to fiduciary standards.” Mr. Justice Douglas in Brown v. Gerdes, supra, 321 U.S. 178, at page 182, 64 S.Ct. 487, 489, 88 L.Ed. 659. Since any compensation awarded from the estate is at the expense of all the other security holders, there is some ground for urging denial of such compensation to those who have traded for their own gain, and thus have served interests other than those of all their class or of the whole estate. See Dickinson Industrial Site, Inc. v. Cowan, supra, 309 U.S. 382, at page 389, 60 S.Ct. 595, 84 L.Ed. 819; Young v. Higbee Co., 324 U.S. 204, 212-213, 65 S.Ct. 594, 89 L.Ed. 890; Berner v. Equitable Office Building Corp., 2 Cir., 175 F.2d 218, 220; Note, 18 N.Y.U.L.Q.Rev. 399, 475, 1941. But see 6 Collier on Bankruptcy ¶13.18, pp. 4593-4, 14th Ed. 1947, We do not go so far here, because we believe these claimants have acted in a “representative” capacity, and thus have brought themselves within the literal wording of the statute. The record is clear that they created a large bloc of preferred stockholders amenable to their directives, maintained its unity by frequent communication, effectively asserted its strength during the formulation and confirmation of a plan of reorganization, and exerted its power to assure the selection of a new management satisfactory to themselves.
Having persuaded many of their friends to buy the preferred stock, Frank and Hernon indulged in activity which is only consistent with the determination that they were “representing” these friends in the reorganization. They let it be known that they were speaking for one-
Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the gender of this litigant?Use names to classify the party's sex only if there is little ambiguity.
A. not ascertained
B. male - indication in opinion (e.g., use of masculine pronoun)
C. male - assumed because of name
D. female - indication in opinion of gender
E. female - assumed because of name
Answer:
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songer_appnatpr
|
0
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
IDEAL CEMENT CO. v. HOME INS. CO. et al. THE VIRGINIA A.
No. 13134.
United States Court of Appeals Fifth Circuit.
July 21, 1950.
J. Edward Thornton, Mobile, Ala., for appellant.
Brunswick G. Deutsch, New Orleans, La., Theodore K. Jackson, Jr., Mobile, Ala., for appellee.
Before HOLMES, WALLER, and BO-RAH, Circuit Judges.
BORAH, Circuit Judge.
This appeal brings up for review an order of the District Court for the Southern District of Alabama dismissing a libel in personam. On October 8, 1948, Ideal Cement Company, owner of the Steel Deck Barge 105, filed a libel in personam against its underwriter to recover the loss which it is alleged to . have sustained in consequence of the barge sinking from insured perils while in the custody of the tug Virginia A. Concurrently with the filing of the libel, libelant propounded interrogatories to respondent under Admiralty Rule 31 and later, with leave of court, additional interrogatories were filed. Thereafter exceptions to the libel and interrogatories were filed and overruled, whereupon the respondent filed an answer setting up by way of defense that libelant had breached various warranties in the policy; and the tug and her owner, alleged to be responsible for the loss, were impleaded under the 56th Admiralty Rule.
Libelant excepted to the answer on the ground, amongst others, that the respondent failed to allege that the breaches of warranty, if any, increased the risk of loss to respondent, or were made by libelant with actual intent to defraud, as required by an Alabama statute. Libelant also filed exceptions to the petition under the 56th Admiralty Rule. These exceptions were overruled.
In consequence of these adverse rulings libelant thereupon filed its motion for leave to dismiss and take a nonsuit. When the motion came on to be heard respondent announced its opposition to the motion and moved the court in the alternative to dismiss the libel with prejudice to the libelant to proceed further against the respondent on this same cause of action. After consideration and for reasons which do not appear of record, the court entered an order granting libelant’s motion to dismiss and take a nonsuit, providing, however, that said dismissal was granted with prejudice to libelant’s commencing other suits against respondent on this same cause of action. The order of dismissal further provided that costs should be taxed against libelant for which execution might issue. From this order libelant appeals.
Upon the basis of the facts as recited it seems plain to us that.it was an abuse of discretion to dismiss the libel under the terms above stated. Libelant doubtless .believed that it was entitled to dismiss as of right since the pleadings had not been closed and no evidence had been taken, and having moved the court for such relief it was entitled to a ruling that was compatible with its application. To impose a penalty of no further suits against respondent as the unconditional price which libelant must pay for having sought a nonsuit was clearly erroneous. We do not suggest that this case' had, or that it had not, proceeded to the point beyond which libelant had lost its right to a nonsuit. We merely hold that the court below should have granted or denied libel-ant’s motion to dismiss and take a nonsuit.
For the reasons above stated the order is reversed, and the cause remanded for further proceedings not inconsistent with this opinion.
Judge WALLER participated in the ■hearing and decision of this cause, but died before the opinion was filed.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
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songer_weightev
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D
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What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?" This includes discussions of whether the litigant met the burden of proof. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
UNITED STATES of America, Plaintiff-Appellant, v. Donald J. ANGELINI, Dominic Cortina, Joseph Spadavecchio, Salvatore J. Molose, Nick Camillo, John La Placa and Frank Aureli, Defendants-Appellees.
No. 77-1152.
United States Court of Appeals, Seventh Circuit.
Argued Sept. 16, 1977.
Decided Nov. 7, 1977.
Rehearing Denied Nov. 30, 1977.
Peter F. Vaira, Atty. in Charge, Chicago Strike Force (DOJ), Washington, D. C., Stephen H. Pugh, Jr., Chicago, 111., Gregory Ward, Special Attys., (DOJ), Washington, D. C., Charles P. Kocoras, Acting U. S. Atty., Chicago, 111., Sidney M. Glazer, Paul J. Brysh, U. S. Dept, of Justice, Washington, D. C., for plaintiff-appellant.
Carol R. Thigpen, Edward J. Calihan, Melvyn L. Segal, Raymond J. Smith, John C. Tucker, Gerald M. Werksman, Herbert Barsy, Chicago, 111., for defendants-appel-lees.
Before PELL, BAUER and WOOD, Circuit Judges.
PELL, Circuit Judge.
This case involves Government interceptions of wire communications without achieving strict compliance with the federal statutes governing such interceptions, with the court being called upon to determine whether to apply the severe remedy of suppressing the resulting tapes and derivative evidence. The district court ordered suppression, and the Government appealed, pursuant to 18 U.S.C. § 2518(10)(b).
The pertinent facts are not complicated. During the period between November 1974 and February 1975, the Government obtained three separate wiretap orders as part of its investigation into illegal gambling operations. The adequacy of these orders and the propriety of the procedures used to obtain them are not in issue here, nor is there any question before us about the scope or manner of the actual interceptions. The product of these interceptions, pursuant to 18 U.S.C. § 2518(8)(a), was a substantial quantity of tape recordings of the intercepted telephone calls. Although § 2518(8)(a) calls for such recordings to be sealed by the district judge “immediately” upon the expiration of the authorization order, this was not done here. Instead, the tapes resulting from the three authorization orders were sealed 9, 38, and 26 days after the respective orders expired.
The Government explained the delay in sealing as follows. After the tapes were made, the Federal Bureau of Investigation (FBI) made duplicate tapes, and the duplicate tapes were given to a full-time group of five or six typists for transcription. The originals were retained in secure storage, to which only the FBI special agent in charge had access. Because of the quantity of the tapes, the volume of intercepted calls on each, and the difficulty of transcribing sometimes garbled or inaudible recordings, it took several days to transcribe each tape. When transcripts were typed, they were returned to the special agent in charge with the tape copies. Where the typists were unable to understand the content of certain conversations, an agent attempted to do so with the duplicates, failing which reference to the original tapes was had. Reference to the originals was had between 17 and 25 times. The Government argued to the district court and argues here that it operated in perfect good faith to facilitate use of the tapes as legal evidence. Absent some harm to the defendants, the Government insists, the tapes should not be suppressed.
In an oral opinion, the district court judge stated:
Now, I find as a fact that there was no tampering [with the tapes] whatsoever. I find as a fact that the Federal Bureau of Investigation and the attorneys for the Department of Justice acted in the best of faith and with the best of motives and I further find that none of them attempted to circumvent the law in any way and I further find that they believed that they were not circumventing the law and I think they still believe it, and they may be right; but it is my obligation to interpret and apply the law as I see it.
The district judge declined to enter a finding that there had been no inadvertent alterations of the tapes, reasoning that such alterations might have occurred as the tapes were used, and opining that avoiding the necessity of factual findings on the existence of such alterations was part of the reason for the immediate sealing rule. As the district judge viewed the case, the “satisfactory explanation” referred to in § 2518(8)(a) for the lack of a properly and promptly applied seal requires the Government to show that a sealing delay was “really necessary.” Because the amount of the total tape transcripts which retention of the original tapes could have clarified was an “infinitesimal percentage” not likely to have much impact on the Government’s need to prove at trial an ongoing gambling operation, this standard was not met. The district court judge determined that the lack of a satisfactory explanation, thus defined, required suppression without more.
In United States v. Lawson, supra, 545 F.2d at 564, this Court determined that the general suppression provision of Title III, 18 U.S.C. § 2518(10)(a), and particularly subsection (i) therein, governs post-interception compliance problems such as this one. Lawson states that the post-interception procedural requirements aim to “preserve the integrity of the intercepted conversations and to prevent any tampering or editing of the tapes or other unlawful use.” Id. They are sufficiently important to the Congressional purposes in enacting Title III that suppression is justified in appropriate cases. Cases appropriate for suppression are identified by considering “whether the purpose which the particular procedure was designed to accomplish has been satisfied in spite of the error;” “whether the statutory requirement was deliberately ignored; and, if so, whether there was any tactical advantage to be gained thereby.” Id.
The Lawson approach, which sensibly reads § 2518(8)(a) in conjunction with § 2518(10)(a), necessarily contemplates a two-step analysis in considering delayed sealing problems. If sealing was not immediately accomplished, it must be decided whether a satisfactory explanation has been offered. If not, the inquiry described above is undertaken. Although we believe this to be a close case, we find that the district court should not have suppressed the evidence in this case, both because the Government’s explanation is, in the circumstances of this case, satisfactory, and because the purposes intended by Congress were fulfilled despite the delay.
In considering the adequacy of the Government’s explanation for the sealing delay, we point out first that this is not a case even remotely akin to United States v. Gigante, 538 F.2d 502 (2d Cir. 1976), where sealings were delayed for periods from over eight months to nearly thirteen months and the Government offered absolutely no explanation. Nor does this case resemble Lawson, supra, where the only explanation offered for a 57-day delay was the travel schedule of a single agent. Obviously, another agent could have taken charge of the sealing obligation there. Here, on the other hand, the Government was pursuing an unquestionably legitimate and important goal (transcription to facilitate the use of the tapes as evidence) in the best of faith, without any intention to circumvent the statute. Moreover, for all that appears, this task was undertaken with acceptable diligence, using a team of typists working full time. The original tapes were kept secure, no one tampered with them, and they were used for clarification only sparingly, as a last resort. No argument is made that the defendants were prejudiced in any way by the delay itself. See United States v. Diadone, 558 F.2d 775, 780 (5th Cir. 1977).
On the surface, at least, it would appear that all of this would amount to a satisfactory explanation. The legislative history of Title III provides virtually no guidance as to what constitutes a “satisfactory explanation,” and, even now, there is a scantling of judicial opinions dealing squarely with the question. Without purporting to adopt a definition that will be appropriate for all cases, because each case must be decided on its own facts, we think it fair to say generally that a satisfactory explanation is one in which the Government shows that it acted with dispatch and all reasonable diligence to meet the sealing requirement, respectful of the letter and spirit of Title III and mindful of the constructions it has been given in the courts.
Examination of two such constructions indicates that the explanation given here is satisfactory. In United States v. Sklaroff, 506 F.2d 837 (5th Cir. 1975), cert. denied, 423 U.S. 874, 96 S.Ct. 142, 46 L.Ed.2d 105, the court approved a two-week delay explained only by accounting for the security of the tapes for seven days and asserting that seven more days were used in preparing search warrants, where there was no showing of prejudice or tape alteration. In United States v. Caruso, 415 F.Supp. 847, 850-51 (S.D.N.Y.1976), aff’d without opinion, 553 F.2d 94 (2d Cir. 1977), the court found a satisfactory explanation for a 24-day delay in efforts to duplicate the tapes and make them ready for sealing and in discussions in the prosecutor’s office about the possibility of continuing the interception. A different 42-day delay was approved in Caruso on the basis of confusion resulting from information that a wiretap subject had received a tipoff, the hospitalization of the prosecutor in charge, and the time it took the newly assigned prosecutor to familiarize himself with the ease. We do not cite either Sklaroff or Caruso as textbook cases of satisfactory explanations, for each case, as we have said, must be judged in the context of its own facts. But we do think that the explanation given here is at least as appealing as the ones approved in those cases.
The difficulty, from the Government’s point of view, and the reason we consider the present case as a close one, is that there were available alternatives which might have allowed immediate sealing and yet preserved a first quality tape for clarifying the inaudible portions. The Government might have made duplicate original tapes, or could have used filtering equipment to produce a very good copy. In the future, the Government, it appears to us, would be well advised either to use such a method or forego the benefits of clarification from the original if such a course would require late sealing. Indeed, if Lawson, supra at 564, in which this court chastised the Government for its “unenthusiastic approach for the ‘technical’ requirements” of Title III, had been decided prior to the incidents in issue here, we might well take a different view of this ease. But in view of the murkiness that has surrounded the phrase “satisfactory explanation,” the Government agents’ testimony in this case that the equipment mentioned above was not readily accessible to them, the diligence they used with that which they had, and the district court’s finding that the agents acted in perfect good faith, we think the Government’s explanation is, in the circumstances of the case, satisfactory.
We also believe the Congressional purposes underlying the sealing requirement were met here despite the delay, for there is no substantial question raised about the integrity of the tapes. The district court’s unchallenged finding was that there was “no tampering whatsoever.” That conclusion goes a long way towards satisfying the Lawson inquiry referred to above. As we have noted, Lawson approved a refusal to suppress, even in the face of an inadequate explanation for a sealing delay longer than those before us here, because the integrity of the tapes was not challenged. See also United States v. Diadone, supra; United States v. Sklaroff, supra; United States v. Falcone, 505 F.2d 478 (3d Cir. 1974), cert. denied, 420 U.S. 955, 95 S.Ct. 1339, 43 L.Ed.2d 432 (1975).
To be sure, the district court declined to find that there had been no accidental alterations in the original tapes, being of the view that the point of the sealing rule was to avoid the need to make such findings. Nor, consistently, did the district court find to the contrary. The Lawson inquiry into the integrity of the late-sealed tapes, however, requires just such analysis. Defendants strenuously insist that the tapes were, after all, used, and they should not have to prove alterations. We may assume without deciding that it is not the defendants’ burden to demonstrate affirmatively the existence of material alterations, but see United States v. Diadone, supra at 780; United States v. Sklaroff, supra at 840 (both cases referring to defendants’ failure to show that tape integrity was violated), for whichever side has the burden of persuasion, the Government’s proof persuades in this case.
Because of the unchallenged finding that no deliberate tampering whatsoever occurred, there is no issue here of attempting to discover cleverly made alterations. Defendants’ tape recording expert suggested two possibilities of accidental alterations: accidental erasures, and accidental injury to the tapes by stretching, the later being most likely to occur when a tape slips on its reels while the tape recorder is being switched back and forth between fast forward and rewind. However, never having used the type of machine used here by the Government, the expert was in no position to say whether either of these things could have happened here. The Government’s expert, on the other hand, was quite familiar with the particular machine, and testified that it was equipped with anti-stretch devices which gently slowed to a stop the tape’s progress in either a forward or backward direction before activating movement in the opposite direction. This eliminated the possibility of stretching. The expert had tried to make the machine stretch a tape without success. Moreover, even the defense witness agreed that a stretching problem would be very easy to detect. With regard to accidental erasure, we note that in many tape machines, activating the recording (and thus the erasing) mode requires the simultaneous manipulation of two or more separate controls, and there was absolutely no evidence before the district court that accidental erasure was even possible on the machine and in the use to which the tapes were put. We also point out that undisputed evidence from the Government’s expert was that the activation of the erase mode on any recorder can be detected electronically. Also, of course, the very nature of an erasure is (absent tampering, as here) that a blank spot will remain quite apparent on the tape as it is played, which would, in conjunction with defense counsel’s evaluation of the pertinence of a tape segment to the defense, eliminate the need to analyze huge amounts of tape.
What we are saying, here, in part, is that there is ample authority and mandate in the law for the district judges to refuse to admit particular tapes or portions thereof where there appears a reasonable possibility that accidental alteration may have occurred that in any way prejudices the defense. The wholly speculative possibility, however, that readily detectable alterations might somehow have crept into these tapes does not pose such a question about the tapes’ integrity as to justify suppressing the lot of them. We find significant in this respect the undisputed fact that the original tapes were used very little by the Government in the process of making the transcripts.
For the reasons set out herein, the district court’s suppression order is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
REVERSED AND REMANDED.
. The provisions of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520, are summarized in United States v. Lawson, 545 F.2d 557 (7th Cir. 1975), cert. denied, 424 U.S. 927, 96 S.Ct. 1141, 47 L.Ed.2d 337 (1976), and there is no reason to repeat that task here. Statutory provisions of particular relevance to this case will, of course, be discussed infra.
. Section 2518(8)(a) provides, in pertinent part:
The contents of any wire or oral communication intercepted by any means authorized by this chapter shall, if possible, be recorded on tape or wire or other comparable device. The recording of the contents . shall be done in such way as will protect the recording from editing or other alterations. Immediately upon the expiration of the period of the order, or extensions thereof, such recordings shall be made available to the judge issuing such order and sealed under his directions. . . . The presence of the seal provided for by this subsection, or a satisfactory explanation for the absence thereof, shall be a prerequisite for the use or disclosure of the contents of any wire or oral communication or evidence derived therefrom under subsection (3) of section 2517.
. We find it unnecessary to decide whether the orders expired at the terminal dates indicated on their faces or on the dates on which interception under the orders was actually terminated (by which count the delays in sealing would be 14, 43, and 44 days respectively), for the legal issues presented are the same either way.
. See, e. g., United States v. Onori, 535 F.2d 938, 947 (5th Cir. 1976).
. Lawson was not released as a published prec-edential opinion until December 3, 1976. The Government, however, received a copy of this court’s unpublished order (see Circuit Rule 35) issued on August 20, 1975, as a party to the litigation.
. We find unpersuasive the district court’s reasoning that the small number of references made to the original tapes undercut the adequacy of the explanation, for the record gives us no reason to assume that the relatively light use of the tapes could have been predicted in advance.
. We are not unmindful that the Second Circuit in United States v. Gigante, supra, has read the pertinent statutes differently than we did in Lawson. That court has apparently chosen the position that the absence of an immediately applied seal or a satisfactory explanation therefor requires suppression without inquiry into the satisfaction of the Congressional purposes. We see no reason, nonetheless, to question the commitment this court made in Lawson to determining a violation on the basis of the satisfactory nature of explanation for delay and determining whether suppression is the appropriate remedy for the violation under the standards of 18 U.S.C. § 2518(10)(a). As the Government argued before us, the Gigante rule inexplicably elevates the immediate sealing requirement to a more protected status than any of the other procedural requirements enacted in Title III.
. Had it done so, of course, we would have a very different case.
Question: Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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songer_adminrev
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F
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What follows is an opinion from a United States Court of Appeals. Your task is to identify the federal agency (if any) whose decision was reviewed by the court of appeals. If there was no prior agency action, choose "not applicable".
SUNRAY DX OIL COMPANY et al., Petitioners, v. FEDERAL POWER COMMISSION, Respondent, Gulf Oil Corporation, Humble Oil & Refining Company, Texaco Inc., and Sun Oil Company, Intervenors in Nos. 8311, 8312, 8313, and 8314.
Nos. 7781, 8298, 8311-8317, 8358-8360, 8362.
United States Court of Appeals Tenth Circuit.
Dec. 9, 1966.
William K. Tell, Jr., and William R. Slye, Cleveland, Ohio, for petitioners in Nos. 7781, 8298, 8315, 8316, 8358, 8359, 8360, and 8362, and for intervenors Gulf Oil Corporation, Humble Oil & Refining Co., and Texaco, Inc., in Nos. 8311, 8312, 8313, and 8314. With them on the briefs were:
Homer E. McEwen, Jr., and J. P. Greve, Tulsa, Okl., for Sunray DX Oil Co., petitioner in No. 7781;
Dixon Morgan and McAfee, Hanning, Newcomer, Hazlett & Wheeler, Cleveland, Ohio, and Richard F. Remmers, Oklahoma City, Okl., for Sohio Petroleum Co., petitioner in No. 8298;
James J. Flood, Jr., Houston, Tex., for Texaco, Inc., petitioner in No. 8315 and intervenor in Nos. 8311, 8312, 8313, and 8314;
Warren M. Sparks and Arthur F. Whitt, Tulsa, Okl., for Gulf Oil Corporation, petitioner in No. 8316 and intervenor in Nos. 8311, 8312, 8313, and 8314;
Wilmer D. Masterson, III, and Kilgore & Kilgore, Dallas, Tex., for Edwin L. Cox, petitioner in No; 8358;
Robert W. Henderson, Dallas, Tex., for Lamar Hunt, petitioner in No. 8359;
Carl Illig, Jesse H. Foster, Jr., and James K. Schooler, Houston, Tex., for Humble Oil & Refining Co., petitioner in No. 8360 and intervenor in Nos. 8311, 8312, 8313, and 8314;
Vernon W. Woods, Shreveport, La., for Union Producing Co., petitioner in No. 8362.
Phillip D. Endom, New Orleans, La., for Sun Oil Co., petitioner in No. 8317 and intervenor in Nos. 8311, 8312, 8313, and 8314. With him on the briefs were Robert E. May, Francis H. Caskin, and May, Shannon & Morley, Washington, D. C.,
Morton L. Simons, Washington, D. C., for petitioners in Nos. 8311, 8312, 8313, and 8314. With him on the briefs were:
William T. Coleman, Jr., and Robert W. Maris, Philadelphia, Pa., for United Gas Improvement Co., petitioner in No. 8311;
Samuel Graff Miller and Donald Blanken, Philadelphia, Pa., for Philadelphia Electric Co., petitioner in No. 8311;
Edwin F. Russell, Harry G. Hill, Jr., and Barbara M. Suchow, Brooklyn, N. Y., for Brooklyn Union Gas Co., petitioner in No. 8312;
Kent H. Brown, Albany, N. Y., for Public Service Commission of State of New York, petitioner in No. 8313;
Edward M. Barrett and Bertram D. Moll, Mineóla, N. Y., for Long Island Lighting Co., petitioner in No. 8314.
Cyril S. Wofsy, Washington, D. C., for respondent. With him on the brief were Richard A. Solomon, General Counsel, Howard E. Wahrenbrock, Sol., and Joel Yohalem, Attorney, Federal Power Commission.
Before BREITEN STEIN, HILL and SETH, Circuit Judges.
BREITENSTEIN, Circuit Judge.
These petitions seek review of Opinion No. 422 of the Federal Power Commission granting permanent certificates of public convenience and necessity under § 7 of the Natural Gas Act for sales of natural gas produced in Texas Railroad District No. 4 to various interstate pipeline companies. Nine of the petitions are by independent natural gas producers, three are by distributing companies selling gas in the Atlantic Seaboard area, and one is by the Public Service Commission of the State of New York. All of the petitions are brought under § 19(b) of the Act.
The Commission fixed the rate at 16 cents per Mcf. The producers say that the rate is too low and the distributors say that it is too high. The parties are also at odds on the Commission treatment of the refund question. We affirm the 16-cent rate and hold that refunds of collections made in excess of that rate under temporary certificates containing no express refund condition may not be ordered.
The first petition for review was filed in the Tenth Circuit by Sunray DX Oil Company and other producers. After procedural skirmishes, petitions for review of Opinion No. 422 pending in other circuits were transferred to the Tenth Circuit pursuant to 28 U.S.C. § 2112(a). The producers filed motions for leave to adduce additional evidence. These motions were deferred to the hearing of the petitions on the merits. The proceedings were held in abeyance for a time in anticipation of the decision in United Gas Improvement Co. v. Callery Properties, Inc., 382 U.S. 223, 86 S.Ct. 360, 15 L.Ed.2d 284.
An understanding of the issues will be helped by a brief recitation of the Commission actions and the court decisions which make up the background. The decision in Atlantic Refining Co. v. Public Service Commission of New York, 360 U.S. 378, 79 S.Ct. 1246, 3 L.Ed.2d 1312, (CATCO) directed the Commission in certificate cases to keep initial prices in line. Thereafter, on September 28, 1960, the Commission promulgated its Statement of General Policy No. 61-1. This was issued concurrently with Opinion No. 338 in Phillips Petroleum Company. The Policy Statement established 23 rate areas, including District No. 4 involved herein, and with unimportant exceptions announced maximum rates for each area. In Phillips, the Commission held that the regulation of independent producers under the Act could be accomplished more appropriately by the establishment of area rates than by the establishment of producer rates on individual cost-of-service findings. The Policy Statement established a guideline initial rate for District No. 4 of 18 cents per Mcf.
On August 30, 1962, the Commission issued Opinion No. 362 in Skelly Oil Co., 28 F.P.C 401. That proceeding involved applications under § 7 for permanent certificates covering sales of gas produced in District No. 4. Therein the Commission disposed of all applications under contracts executed prior to September 28, 1960, the date of the Policy Statement, by the imposition of a 15-cent initial price condition and deferred decision on sales under four contracts bearing a later date. On the same day as the Skelly decision, the Commission promulgated its Fifth Amendment to the Statement of General Policy No. 61 — 1, 28 FPC 441, reducing the guideline initial rate in District No. 4 from 18 cents to 16 cents effective the same date. The four applications which had been severed from Skelly were then consolidated with a number of applications covering District No. 4 sales under contracts made between September 30, 1960, the date of the Policy Statement, and August 30, 1962, the date of the Skelly decision and the Fifth Amendment. The consolidated proceedings went forward under the style Amerada Petroleum Corporation, et al., Docket Nos. C162 etc.
In its order for the consolidated hearing the Commission stated:
“In such a hearing all of the ap-: plieants will have an opportunity to show whether the appropriate price at which they should be permanently certificated should be limited to the 15-cent per MCF price which we found to be the in-line price as of September 28, 1960, the 16-cent price which is being adopted as the future area ceiling price for this area, or the 18-eent per Mcf price established on September 28, 1960.”
The applications covered initial contract-based rates ranging from 15.9 cents to 19.8 cents. During the pend-ency of their applications for permanent certificates, numerous producers requested and received temporary authorizations under § 7(c) of the Act and § 157.28 of the Commission regulations thereunder. These were issued ex parte and without notice or hearing. Many of the temporary certificates did not contain an express refund condition.
The Amerada proceedings before the Examiner went forward contemporaneously with the judicial review of the Skelly decision, Opinion No. 362. In Amerada the producers offered, and the Examiner declined to receive, testimony and exhibits covering economic and financial requirements. Texaco Inc. sought to obtain the disclosure and production of Commission records pertaining to the establishment of the guideline initial prices in the Policy Statement and the Fifth Amendment. This was denied. Review of the Commission actions upholding the Examiner on these two evidentiary issues was sought and denied in Texaco Inc. v. Federal Power Commission, 117 U.S.App.D.C. 268, 329 F.2d 223, certiorari denied 375 U.S. 941, 84 S.Ct. 346, 11 L.Ed.2d 272, on the ground that under § 19 the petitions for review were premature.
A Commission staff economist presented, and the Examiner received in evidence, Exhibit 16. This exhibit is a summary of price and other information for all District No. 4 contracts dated 1955 or later, filed as rate schedules with the Commission, and calling for a price of at least 14 cents.
The Examiner’s decision, issued July 23, 1963, recommended the grant of permanent certificates of public convenience and necessity to all producer applicants on specified conditions, two of which are pertinent here. The initial price was to be no greater than 15 cents per Mcf and no refunds were required of producers selling gas under temporary authorizations which did not contain any specific refund condition. Both the producers and the distributors filed exceptions to the Examiner’s decision.
While the matter was pending before the Commission, the District of Columbia Circuit decided the Skelly case. That decision affirmed the 15 cent in-line price established by Opinion No. 362 for District No. 4 sales under contracts made before September 28, 1960, and reversed the Commission holding that refunds could not be required when the temporary authorization contained no express refund condition.
By its Opinion No. 422, here under review, the Commission upset the Examiner on both the price and refund issues. It fixed the in-line price at 16 cents per Mcf and deferred the question of refunds under contracts having no express refund conditions.
With this background we first consider the rejection of the proffered evidence. Several producers jointly tendered testimony and exhibits covering economic and geologic factors pertinent to the area. The showing was that exploratory and drilling costs have substantially increased between the time when the majority of contracts in Skelly had been executed and the execution of the contracts with the prices here in dispute; that the public interest required further exploratory and drilling efforts in the area because of increasing demand and lessening supply; and that the public convenience and necessity required initial contract prices up to and including 18 cents per Mcf. The Commission upheld the Examiner’s decision to exclude the evidence because it was not relevant to a § 7 proceeding where the test is public convenience and necessity rather than the determination of a just and reasonable rate.
CATCO holds that the Act does not require a determination of just and reasonable rates in a § 7 proceeding; that if a proposed price is “out of line” the Commission may impose conditions; and that to protect the public interest the Commission acts in a § 7 proceeding “to hold the line awaiting adjudication of a just and reasonable rate.” CATCO does not define the “line” and does not fix standards by which a determination may be made of whether a price is “in line” or “out of line.”
In Callery the Supreme Court said that under § 7 “adequate protection to the public interest requires as an interim measure that gas not enter the interstate market at prices higher than existing levels.” With reference to cost and economic trend evidence, the Court mentioned the experience of the Commission, said that the Commission “properly and constructively exercised its discretion in declining to consider this large quantity of evidence,” and concluded that the rejection of such evidence is “an appropriate step” in the streamlining of Commission procedures.
The producers seek to avoid the impact of Callery by the assertion that the proffered evidence was a streamlined presentation which could not cause any crippling delay. In our opinion, the admissibility of such evidence does not depend on any quantitative test. Relevance is determined by the substance of the offer. Although we agree with the producers that neither CATCO nor Callery establishes any specific evidentiary standards, the point is that the just and reasonable rate standards of §§ 4 and 5 do not apply to § 7 where the test is public convenience and necessity. We do not say that economic and geologic evidence is never admissible in a § 7 proceeding. This may depend on varying circumstances. All we say is that in the posture of this case the Commission did not abuse its discretion by rejecting the evidence.
By request to the Examiner and by application for a subpoena duces tecum and ad testificandum, Texaco Inc. sought to obtain the disclosure of the data and materials underlying and supporting the price levels for initial sales in District No. 4 as announced by the Commission in its Policy Statement and in the Fifth Amendment thereto. In sustaining the Examiner’s denial, the Commission pointed out that the burden is on a producer-applicant to prove that a certificate is required by the public convenience and necessity; that the effect of the Texaco motion is to place on the Commission the burden of justifying the price expressed in the Policy Statement; and that Texaco had demonstrated no reason for the production of the documents and issuance of a subpoena as requested. Consideration of this problem is entwined with the intent and effect of the Policy Statement.
We have noted that the Policy Statement fixed an 18-cent price, that Skelly, Opinion No. 362, fixed a 15-cent price for the period prior to the issuance of the Policy Statement, that the Fifth Amendment to the Policy Statement fixed a 16-cent price, and that we are here concerned with contracts executed between the date of the Policy Statement and the date of the Fifth Amendment. The producers argue that the Policy Statement established an 18 cent in-line rate. The distributors contend that Skelly established a 15 cent in-line rate. None of the petitioners are happy with the 16-cent rate which the Commission decreed.
The basic claim of the producers is that the Policy Statement set in-line prices on which they were entitled to rely. In our view this is a misconception of the Commission action. The Policy Statement is just what it purports to be — an ex parte statement issued without hearing by an agency to advise the public properly of the manner in which the agency proposes to exercise a discretionary power. Reference is made therein to “price standards” and “price levels.” The purpose is that of “guidance and initial action by the Commission.” The effect is that, “in the absence of compelling evidence calling for other action,” producer applications for certificates proposing higher rates than those listed will be either denied or conditioned. The result is that the Policy Statement plays a “significant role” in arresting the upward trend of producer prices.
The announcement of a guide to price levels or price standads is not the establishment of an in-line price. That is accomplished after notice and hearing in an appropriate proceeding — not in a policy declaration. No doubt designedly, the Commission did not specify the formula which it used in arriving at the guideline rates. Its failure to do so may put a burden on producers and distributors alike in any attempt to show that a guideline price should or should not be adopted as an in-line price. The presence of such burden neither requires nor permits a party to go back of the Policy Statement in search of its justification. That is the administrative concern of the Commission. It follows that the request and application of Texaco for the underlying data and materials were properly denied.
The Commission may not rigidly and arbitrarily impose a guideline price as an in-line price. The Policy Statement recognizes that compelling evidence may call for action other than granting a certificate at the guideline price. The point is that, in the context of the proceedings before us, the establishment in 1960 of the 18-cent guideline cannot be ignored by the Commission in arriving at the in-line price. Its effect had to be, and was, evaluated by the Commission.
The other extreme of the dispute is the position of the distributors who say that the 15-cent price established in Skelly, Opinion No. 362, for contracts executed prior to the date of the Policy Statement is the in-line rate which is presumed to continue until a just and reasonable rate has been determined in an area rate proceeding. We agree with the distributors that the in-line procedure is an interim device and is not intended to be a permanent method of producer regulation. It is a necessary device because of the complex and time-consuming processes incidental to the establishment of a just and reasonable rate. The apparently inevitable time lag between certification and establishment of a just and reasonable rate affects the mutability of an established inline price.
The Commission has recognized that the in-line price must reflect current conditions. The Courts of Appeals have agreed. Further support is found in the Callery decision where the Supreme Court referred to “other contemporaneous certificates” and “prices higher than existing levels.” We concur with the Commission that once the in-line price is established it is presumed to continue not until the just and reasonable rate is determined but until “substantial evidence is presented that it has changed.”
Thus we reach the heart of the Commission’s decision. The question is whether substantial evidence sustains the 16-cent price. All the petitioners say that it does not.
The basis for the Commission’s action is Staff Exhibit No. 16 which lists the provisions of gas sales in District No. 4 “dated 1955 and later with total rates of 14.0^ Mcf and higher as accepted for filing by the Federal Power Commission as of 8-31-62.” The Commission analyzed the figures presented and compared the initial contract prices for the two years here under consideration with those pertinent to the Skelly proceeding where the 15-cent price was fixed for sales contracted before the date of the Policy Statement. It found that in the later period 82% of the gas moving in interstate commerce was at initial contract prices of 16 cents per Mcf and higher, and that the weighted average price for the period was 17.176 cents per Mcf. For the earlier period the weighted average was 16.5 cents. This shows an increase of more than six-tenths of a cent for the later period. The Commission pointed out that the lowest selling price for substantial quantities of gas during the period in question was 16 cents and concluded that the public convenience and necessity required the issuance of the certificates at that price.
The distributors argue that the Commission considered and acted on suspect prices. United Gas Improvement Co. v. Federal Power Commission, 9 Cir., 283 F.2d 817, 824, holds that it is an abuse of discretion for the Commission, in establishing a price line, to rely upon producer prices which are under review in pending court and Commission proceedings. In that case and the decisions of the Courts of Appeals which followed it there were both numerous uncontested contracts available for consideration and certificates which the courts had rejected because of their issuance at excessive price levels.
The Examiner limited his consideration to sales under contracts which were made during the pertinent period and for which permanent certificates had been issued. The Commission found that the effect of this limitation was to arrive at an in-line price on the basis of only 1.39% of the volumes for all sales shown. In the UGI decision of the Ninth Circuit, mentioned above, the court said that the line “may properly be referenced to relevant existing producer prices under which substantial amounts of natural gas move in interstate commerce.”
Thus we have here a situation vastly different from that presented in the cases which have dealt with the suspect price doctrine. Exhibit 16 included the sales under consideration in the very proceedings in which the exhibit was presented. The distributors say that this is an impermissible bootstrap procedure. The producers in turn say that the reason for the small percentage of sales free from attack is the action of the distributors in contesting all sales above the price which is acceptable to the distributors.
■ In the determination of an in-line price, permanent certificates have a greater weight than do either temporary certificates or contract rates under attack. At the same time, when no appreciable volume of gas is moving under permanent certificates, the Commission has nothing upon which to base a decision as to in-lineness unless it turns to the temporaries. In fixing the 15-cent price for District No. 4 sales which preceded the Policy Statement, the Commission in Skelly gave a “limited degree of consideration” to the price range of contracts resulting in temporary certificates although it recognized that they were not “as persuasive” as permanent certificates. The price fixed in Skelly was upheld by the District of Columbia Court of Appeals which commented that the Commission gave “less consideration” to the temporary certificates than it did to the permanents
An in-line price is intended to reflect the price at which substantial volumes of gas are currently contracted for sale in interstate commerce. This determination cannot be made if all current sales are within the “suspect price” doctrine because of objections made to them. Such an application of the doctrine would, as said by the Commission, make the price determination dependent on the “unreviewable fiat” of the objectors. Our conclusion is that in the circumstances of this case the Commission did not abuse its discretion by the consideration given to prices not covered by permanent certificates.
The producers say that the in-line price for permanent certificates should be the highest price at which substantial quantities of gas move in interstate commerce and that here the Commission has fixed the lowest rather than the highest price. The producers rely on the statement in Callery that: “We believe the Commission can properly conclude under § 7 that adequate protection to the public interest requires as an interim measure that gas not enter the interstate market at prices higher than existing levels.” This language does not mean that the public interest is not protected if the sales are approved at less than existing levels.
The distributors point to the decision in Atlantic Refining Co. v. Federal Power Commission, 115 U.S.App.D.C. 26, 316 F.2d 677, 679, which says that “if the Commission is to err in setting an initial rate, it should err on the low side” because of the right of a producer to file immediately for a rate increase under § 4. From this premise they argue that the 15-cent price of Skelly should have been adopted. The provisions of § 4, although they may not be disregarded, are not a complete answer. Rate increases filed thereunder are subject to suspension. The producers may have the use of the money collected but it is at interest if refunds are ordered and royalty and tax payments have to be made on the total amount collected. If the just and reasonable rate as finally determined is greater than the in-line rate adopted, the producers have no way of recouping their losses. Our view is that the possibility of filings for increased rates under § 4 does not require that the Commission fix the price in a § 7 proceeding at a figure lower than that at which substantial volumes of gas are currently contracted for sale in interstate commerce.
Both producers and distributors attack the 16-cent price on the ground that it results from an improper use of, and reliance on, agency expertise. For over 12 years since the decision in Phillips Petroleum Company v. State of Wisconsin, 347 U.S. 672, 74 S.Ct. 794, 98 L.Ed. 1035, the Commission has been struggling to regulate the independent natural gas producers under an act which is not well designed for the attainment of that objective. Serious administrative problems have developed. Procedures and methods have changed from time to time. Whether those now in use will receive full judicial approval remains to be seen. In the economic regulation with which the Commission is concerned the experience of the past must be projected into the future. The importance of expertise may not be downgraded. A delicate balance must be maintained between producer and consumer interests if the continued life of the industry is to be assured.
We have noted that an in-line price continues until substantial evidence shows a change. The producers point out that the Commission controls the variables which would result in a change by rejecting evidence both of producers' costs and of initial prices which it considers suspect. The potential for circuity of action does not impress us too much. The cost evidence has been refused because it goes to the just and reasonable rate issue. In a § 7 proceeding the test is public convenience and necessity and evidence relevant thereto should be received. In the applications before us this evidence, in large measure, has taken the form of a showing of contract-determined initial prices. The Commission has given consideration to prices under temporary authorizations and under permanent certificates. Greater weight has been given to the permanent than to the temporary certificates. Some prices have been discounted as too high and some as too low. We believe this is proper. Here, at least, the result reached has not come from the use of a crooked yardstick.
The analysis and use of field prices established by producer-pipeline contracts require expertise. Objections to the use of weighted averages are not well taken. Such averages are necessarily lower than the highest prices paid. At the same time nothing is wrong with the use of weighted averages to compare price levels. Here the Commission has made such comparisons. These are proper as long as the action is not capricious or arbitrary.
It is apparent that in the case at bar the Commission was confronted with a difficult situation. CATCO tells it to hold the line. The Ninth Circuit UGI decision says that the price line is intended to reflect current conditions and that the prices on which it is based must be those under which substantial quantities of gas move in interstate commerce. Various decisions warn against the use of suspect prices. Because of objections to most pertinent certificate applications, the number of permanent certificates available for comparison purposes represents only a meager amount of gas. The Commission took due note of all factors and concluded that the price required by public convenience and necessity is 16 cents. We believe that in so doing the Commission acted reasonably and that “we owe it the same deference to its expertise that courts generally owe to the specialized boards and commissions created by the Congress to deal with complex and difficult problems in the field of economic regulation” We find no abuse of discretion and affirm the 16-cent price.
The path from the morass of in-line prices leads directly to the thicket of refunds. Here again the traveled way is not well marked and we have a three-way disagreement among the parties over the route to be followed.
In the consolidated proceedings before the Commission, 27 of the 35 dockets related to applications in which temporary certificates had been issued without any express refund condition. The Examiner held that on the authority of Opinion No. 362, Skelly, he had no power to order refunds when the temporary certificate did not contain an express refund provision. While the proceedings were pending before the Commission on exceptions, the District of Columbia Circuit reversed the pertinent holding in Opinion No. 362. On the authority of that decision the Commission reversed the Exáminer on the refund issue and held that “the public interest would best be served by deferring for the present the decision whether refunds should be ordered * * *, and if so, the extent of such refunds.” The Commission said that the parties “will be given an opportunity to submit further briefs on the issue of refunds.”
At the outset we are met by the Commission argument that the refund issue is not now reviewable because § 19(b) makes aggrievement a jurisdictional prerequisite to review of Commission orders and here aggrievement is absent because no refunds have been required. In denying the Commission motion to dismiss the Sunray petition we held that Sunray was likely to suffer injury by the determination of the in-line price and that the threat of refunds made it an aggrieved party.
The threat has been followed by action. On July 27, 1966, the Commission issued Opinion No. 501 in the Amerada consolidated dockets which were considered in Opinion No. 422 here under review. Opinion No. 501 says that the producers therein listed “will be ordered to make refunds of all amounts collected in excess of 16 cents per Mcf while operating under temporary certificates” with the exception of certain royalty and tax payments not pertinent here. The producers listed include Sunray and six others who are petitioners in these proceedings. They are required to report their excess collections and hold them subject to the further order of the Commission “directing the disposition of those amounts.”
Opinion No. 422 as implemented by Opinion No. 501 adversely affects Sunray and the other six producers. Although payment itself is not yet required, the producers are told that the excess collections do not belong to them. The only thing which remains to be decided is the question of who gets the money and under what conditions. This is not a case like either Texas Eastern Transmission Corp. v. Federal Power Commission, 5 Cir., 357 F.2d 232, or United Fuel Gas Company v. Federal Power Commission, 4 Cir., 367 F.2d 34. They related to an order directing that refunds generated by a settlement agreement be retained by the producer pending Commission inquiry into whether release of the refunds to the pipelines would be proper. There the obligation to refund was fixed by the settlement. Here the obligation to refund is fixed by a Commission order. A producer has a right to a prompt determination of its liability. We believe that the question of the power of the Commission to order refunds of amounts collected under temporary certificates containing no express refund condition is ripe for determination and that proper judicial administration requires that it be deferred no longer.
Temporary certificates are issued ex parte and without hearing under § 7(c) of the Act in accordance with Commission Regulation § 157.28(c). A party aggrieved by the issuance of such certificate has the right to judicial review. The first attack on the absence of an express refund condition in the temporaries here under consideration came when the distributors, during the pend-ency of the proceedings before the Examiner, moved for the termination of the temporaries or in the alternative for a floorless refund condition. The Commission denied the motion. It declined to impose the refund condition because “we think clearly this would not be a proper action for us to take here.” It further said that such action “would so denature the value of a commission authorization as to place any reliance upon our actions in this area in serious jeopardy” and that “we find it would be contrary to the public interest, as well as inequitable, to condition the temporary certificates” as requested by the distributors. The distributors did not seek review. We do not accept the producers’ view that the unreviewed denial of the motion irrevocably determined the refund issue. The Commission could change its mind. At the same time the reasons given for the action are most compelling and show mature consideration of the problem.
The distributors emphasize the importance of refunds to the protection of the consumer interests. This may be conceded to the extent that refunds are passed down to the ultimate user. These benefits must be weighed against the desirability of the maintenance of an adequate supply of gas. A repricing of the gas, without warning, cannot help but have a severe impact on the operations of the producers. We will not speculate on the effect of such repricing on their exploration and development activities. The benefits derived from such costly activities may or. may not be of greater value, from the public standpoint, than the few dollars recovered by the home consumer. Perhaps he would rather have an assured supply for his expensive appliances than a modest refund. In any event the record does not purport to cover such issues and we turn to the decisions which the parties say control the outcome.
In our opinion the Callery decision does not dispose of the issue presented here. The Supreme Court was there concerned with South Louisiana prices which had been the subject of much litigation. The Court recognized that the Commission may not make reparation orders but said that “it is not so restricted where its order, which never became final, has been overturned by a reviewing court” and that “judicial review at times results in the return of benefits received under the upset administrative order.” The situation here is different. This is the first judicial review of the prices under consideration and we uphold the Commission on its in-line rate.
In Sunray Mid-Continent Oil Company v. Federal Power Commission, 10 Cir., 270 F.2d 404, Sunray applied for temporary authority which was granted on the condition that an undertaking be filed “to assure refund of any portion of the difference, if any, between the proposed initial price of 16.4$ per Mcf and the level of any price which the Commission may lawfully find to be required by the public convenience and necessity.” We pointed out that Sunray was required “to speculate” as to what the rate might be and was denied “its right to have the Commission act upon its application with such certainty as to allow the exercise of choice upon Sun-ray’s part.”
We have noted that Commission Opinion No. 362 pertaining to District No. 4 sales made under contracts executed prior to September 28, 1960, was set aside by the District of Columbia Circuit on the refund issue. The Court there held that the “power [to order refunds] does not depend upon an explicit refund provision in a temporary certificate.” The Court went on to say that the exercise of the power was not “mandatory” and that the “refund issue requires further development and fuller consideration of the equitable factors other than those thought to flow from the mere absence of an explicit refund condition in the temporary certificates.”
The Court quoted the general language of the temporary certificates that “acceptance for filing shall not be construed as constituting approval of any rate” and that authorization and acceptance of the rate schedule “are without prejudice to such final disposition of the certificate application as the record may require.” It then concluded that “all else aside” these provisions authorize the conditioning of a permanent certificate by a refund requirement.
In our opinion these provisions mean that the Commission is not binding itself, by the issuance of a temporary certificate, to issue an identical permanent certificate of prospective effect after a hearing. In its denial of the distributors’ motion for refund conditions the Commission gave no recognition or effect to such provisions. We believe that the Commission intended the routine, boiler-plate language to have a purpose entirely different from that of an express refund condition.
When a producer dedicates its gas to interstate commerce, “there can be no withdrawal of that supply from continued interstate movement without Commission approval.” If the language mentioned means that a producer accepting such certificate without express refund conditions dedicates its gas without any floor on the rate, the producers have taken many uncalculated and uncalculable risks. We suggest that for the good of the public, the consumers, the distributors, the pipelines, and the producers certainty and stability are of prime importance.
The situation in the case at bar differs from that presented to the District of Columbia Circuit. The proceedings there involved § 7 applications for permanent certificates covering District No. 4 sales under contracts executed before the issuance of the Policy Statement. Here we are concerned with sales under contracts made between the date of the Policy Statement and the date of the Fifth Amendment. For that period the guideline initial rate was 18 cents. The temporary certificates with which we are concerned were issued “at prices not exceeding 18^ per Mcf.” The 18-cent figure is significant and meaningful. It resulted from the exercise of Commission expertise. When the producers dedicated their gas under temporary certificates permitting the collection of prices up to 18 cents without express refund
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_appbus
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1
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "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.
In re SLF NEWS DISTRIBUTORS, INC., Bankrupt. Abraham DAVIS, Trustee, Appellee, v. COOK CONSTRUCTION CO., Appellant. James M. Cook Construction Co., Allan Molasky.
No. 80-1652.
United States Court of Appeals, Eighth Circuit.
Submitted April 15, 1981.
Decided May 28, 1981.
Martin Schiff, Jr., Webster Groves, Mo., for appellant.
Leslie A. Davis, Clayton, Mo., for appellee.
Before BRIGHT, HENLEY and ARNOLD, Circuit Judges.
BRIGHT, Circuit Judge.
Abraham Davis, the trustee in bankruptcy for SLF News Distributors, Inc. (SLF or the bankrupt), brought this action under section 67(d)(2Xa) of the Bankruptcy Act, 11 U.S.C. § 107(d)(2)(a) (1976) (repealed 1978), to set aside as fraudulent a $10,000 transfer made by SLF to James M. Cook Construction Company (Cook). The bankruptcy court entered judgment against Cook and the district court affirmed, 5 B.R. 813. Cook now appeals from the judgment of the district court, contending that (1) the trustee’s complaint fails to state a cause of action; (2) the bankrupt made no “transfer” of funds to Cook within the meaning of section 67(d)(2Xa) of the Bankruptcy Act; (3) Cook should be considered a bona fide purchaser under section 67(d)(6) of the Bankruptcy Act. We hold that under the circumstances of this case, Cook qualifies as a bona fide purchaser and, as such, is entitled to retain the transferred funds. Accordingly, we reverse the district court.
1. Background.
On June 18, 1976, Cook entered into a written contract with Allan Molasky, individually and as trustee for MAM Partnership (MAM), to provide labor and materials for the building of the Lettuce Leaf Restaurant located on real estate owned by Molasky and MAM. Cook completed its obligations under the contract; Molasky, however, failed to pay $14,000 owing on the contract.
On November 2, 1976, Cook served notice on Molasky of its intent to file a mechanic’s lien pursuant to Missouri law, Mo.Rev.Stat. § 429.080 (1978). After negotiations, Cook agreed not to file its lien if Molasky immediately remitted $10,000.
On November 4,1976, SLF drew its check on the First National Bank of Clayton in the amount of $10,000 in exchange for a $10,000 cashier’s check payable to Cook Construction Company. That same day a representative of MAM delivered the cashier’s check to Cook’s attorney. The check designated MAM Partnership as “Remitter.” Thereafter, Cook directed its attorney not to file a mechanic’s lien statement.
At the time of these transactions SLF was insolvent. Neither Cook nor its attorneys knew that SLF had furnished the funds for the bank cashier’s check. Cook believed that Allan Molasky, personally or as trustee for the MAM Partnership, had provided the funds in question. Cook first learned that SLF had initiated the $10,000 transfer during March of 1978, a short time before the trustee filed the complaint in this proceeding.
Bankruptcy proceedings against SLF were commenced on November 10, 1976, by the filing of an involuntary petition. In 1978, the trustee filed a complaint against Cook for return of the $10,000, alleging that the payment to Cook constituted a fraudulent transfer under provisions 67(dX2)(a)-(c) of the Bankruptcy Act, 11 U.S.C. § 107(dX2)(a)-(c) (1976) (repealed 1978). Cook denied liability and alleged as a defense that it received payment of the $10,-000 as a bona fide purchaser, asserting that it gave fair consideration by waiving its right to file a mechanic’s lien.
The bankruptcy judge held that SLF made a fraudulent transfer to Cook under section 67(d)(2)(a) of the Act and rejected Cook’s bona fide purchaser defense. Accordingly, it entered judgment for $10,000 in favor of the trustee. Cook appealed to the district judge, who affirmed the bankruptcy court. Cook now appeals. For reasons stated below, we reverse.
II. Discussion.
Section 67(d)(2)(a) of the Bankruptcy Act provides:
(2) Every transfer made and every obligation incurred by a debtor within one year prior to the filing of a petition initiating a proceeding under this title by or against him is fraudulent (a) as to creditors existing at the time of such transfer or obligation, if made or incurred without fair consideration by a debtor who is or will be thereby rendered insolvent, without regard to his actual intent[.] [11 U.S.C. § 107(d)(2)(a) (1976) (repealed 1978).]
The stipulated evidence establishes all the required elements of a fraudulent conveyance. SLF, while insolvent, made a $10,000 transfer within a year prior to bankruptcy without receiving “fair consideration.” As recognized by the bankruptcy judge and the district court, transfers to pay another’s debt are not made for “fair consideration.” See 4 Collier on Bankruptcy K 67.33, at 514.1 and cases cited at n.33 (14th ed. 1975).
That the transfer by SLF was fraudulent, however, does not necessarily entitle the trustee to a judgment against Cook. Section 67(d)(6) provides in pertinent part:
(6) A transfer made or an obligation incurred by a debtor adjudged a bankrupt under this title, which is fraudulent under this subdivision against creditors of such debtor having claims provable under this title, shall be null and void against the trustee, except as to a bona fide purchaser, lienor, or obligee for a present fair equivalent value[.] [11 U.S.C. § 107(d)(6) (1976) (repealed 1978).]
The crucial question presented on this appeal is whether Cook, by releasing its mechanic’s lien rights on receipt of the $10,000 check, should be deemed “a bona fide purchaser, lienor, or obligee for a present fair equivalent value.”
Cook contends that it acted as a bona fide purchaser of the check because it released its lien claim for $14,000 in the honest belief that its debtor, MAM, provided the funds for the cashier’s check. The bankruptcy court and district court rejected this contention because the bankrupt owed no debt to MAM or Allan Molasky and thus the absence of consideration moving to the bankrupt from Cook barred Cook from qualifying as a bona fide purchaser. The district court deemed immaterial Cook’s lack of notice or knowledge of the bankrupt’s involvement in the transfer.
We conclude that the district court’s analysis does not properly take into account the special circumstances present in this case.
SLF transferred $10,000 to the First National Bank of Clayton. The bank transferred these funds to Cook through a cashier’s check which indicated MAM as remitter. MAM, in turn, delivered the check to Cook. As previously noted, Cook did not know or receive notice that these funds emanated from anyone else than its debtor. Although the funds originated with the bankrupt, the instrument of transfer passed to Cook from a source other than the bankrupt. Thus Cook’s situation was akin to that of a subgrantee of property from the original transferor, SLF.
Under section 67(d)(6) of the Bankruptcy Act, a good-faith subgrantee for a present fair equivalent value is entitled to retain its acquisition against the claim of the original grantor’s trustee in bankruptcy. 4 Collier on Bankruptcy f 67.41[6], at 603 and cases cited at n.72 (14th ed. 1975). Cook gave “fair equivalent value” by releasing a lien claim of $14,000 to its transferor-debtor, MAM, upon receipt of a $10,-000 cashier’s check from MAM. Because Cook had no notice or knowledge of the source of the funds or the trustee’s claim against them, Cook must be presumed to have acted in good faith. See 4 Collier on Bankruptcy f 67.41[4] at 589-91 (14th ed. 1975). In fact, Cook’s position, based on its lack of knowledge or notice, is superior to that of a bona fide subgrantee of property, who might well know the chain of title. See, e. g., May v. Moss, 194 F.2d 133 (8th Cir.), cert. denied, 343 U.S. 952, 72 S.Ct. 1046, 96 L.Ed. 1353 (1952); Morrison v. Bay Parkway Nat. Bank, 60 F.2d 41 (2d Cir.), appeal dismissed per stipulation, 296 U.S. 669, 57 S.Ct. 756 (1932); Levy v. Bukes, 65 F.Supp. 494 (W.D.Pa.1946). Thus, we conclude that the protection afforded by section 67(d)(6) to a bona fide subgrantee of property for present fair equivalent value should apply to a purchaser in the posture of Cook.
We note that the particular facts of this case apparently make it one of first impression. At least, the parties have cited no cases in which a transferee, like Cook, received funds from the bankrupt but gave present fair equivalent value to a third, party in the honest belief that this third party furnished the funds in question.
We conclude that, under the present circumstances, Cook should be granted bona fide purchaser status under section 67(d)(6) of the Bankruptcy Act. Accordingly, we reverse and remand with directions to enter a judgment of dismissal of the trustee’s complaint against Cook.
. The parties have stipulated to the factual background of this case.
. SLF’s check to the bank bears the signatures of Mark Molasky and Ronald Hulse. The record does not indicate whether Mark Molasky of SLF and Allan Molasky of MAM are related or whether SLF received any consideration from MAM for this transaction.
. Section 1(30) defines “transfer” to
include the sale and every other and different mode, direct or indirect, of disposing of or of parting with property or with an interest therein or with the possession thereof or of fixing a lien upon property or upon an interest therein, absolutely or conditionally, voluntarily or involuntarily, by or without judicial proceedings, as a conveyance, sale, assignment, payment, pledge, mortgage, lien, encumbrance, gift, security, or otherwise; the retention of a security title to property delivered to a debtor shall be deemed a transfer suffered by such debtor[.] [11 U.S.C. § 1(30) (1976) (repealed 1978) (emphasis supplied).]
. Section 67(d)(1)(e) states:
[Consideration given for the property or obligation of a debtor is “fair” (1) when, in good faith, in exchange and as a fair equivalent therefor, property is transferred or an antecedent debt is satisfied, or (2) when such property or obligation is received in good faith to secure a present advance or antecedent debt in an amount not disproportionately small as compared with the value of the property or obligation obtained. [11 U.S.C. § 107(d)(1)(e) (1976) (repealed 1978).]
. The court relied upon the following comment from Collier on Bankruptcy.
If the two conditions are present, viz., lack of fair consideration and insolvency or resulting insolvency, there is a conclusive presumption of fraud, any intent to the contrary notwithstanding. [4 Collier on Bankruptcy 67.34, at 518-19 (14th ed. 1975) (footnote omitted).]
. The district court determined that the transfer of funds actually occurred between SLF and the recipient; that no intermediate transfer to the partnership occurred or was intended; and that the legend of MAM as “Remitter” on the cashier’s check bore only on the issue of Cook’s notice or knowledge of the transaction — a matter deemed immaterial by the district court. On appeal Cook does not question the court’s finding that the transfer of funds occurred directly between SLF and Cook.
. The four-month statute of limitation under the Missouri statute, Mo.Rev.Stat. § 429.080 (1978), precludes Cook from now acquiring a lien on MAM’s property.
. The cases cited by the bankruptcy judge are inapposite. See In Re O’Bannon, 484 F.2d 864 (10th Cir. 1973); In Re B-F Building Corp., 312 F.2d 691 (6th Cir. 1963); Edward Hines Western Pine Co. v. First Nat. Bank of Chicago, 61 F.2d 503 (7th Cir. 1932); Davis v. Hudson Trust Co., 28 F.2d 740 (3d Cir. 1928), cert. denied, 278 U.S. 655, 49 S.Ct. 179, 73 L.Ed. 565 (1929). In these cases, either the consideration moving from the transferee was inadequate or the transferee knew of the bankrupt’s involvement in the transfer.
Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number.
Answer:
|
sc_casedisposition
|
C
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed. The information relevant to this variable may be found near the end of the summary that begins on the title page of each case, or preferably at the very end of the opinion of the Court. For cases in which the Court granted a motion to dismiss, consider "petition denied or appeal dismissed". There is "no disposition" if the Court denied a motion to dismiss.
FLORIDA v. RILEY
No. 87-764.
Argued October 3, 1988
Decided January 23, 1989
Parker D. Thomson, Special Assistant Attorney General of Florida, argued the cause for petitioner. With him on the briefs were Robert A. Butterworth, Attorney General, Candace M. Sunderland and Peggy A. Quince, Assistant Attorneys General, and Cloyce L. Mangas, Jr., Special Assistant Attorney General.
Marc H. Saltón argued the cause and filed a brief for respondent.
Briefs of amici curiae urging reversal were filed for the State of Indiana et al. by Linley E. Pearson, Attorney General of Indiana, and Lisa M. Paunicka, Deputy Attorney General, Don Siegelman, Attorney General of Alabama, Robert K. Corbin, Attorney General of Arizona, John Steven Clark, Attorney General of Arkansas, John J. Kelly, Chief State’s Attorney of Connecticut, Charles M. Oberly, Attorney General of Delaware, Warren Price III, Attorney General of Hawaii, Jim Jones, Attorney General of Idaho, Neil F. Hartigan, Attorney General of Illinois, Robert T. Stephan, Attorney General of Kansas, Frederic J. Cowan, Attorney General of Kentucky, Frank J. Kelley, Attorney General of Michigan, Hubert H. Humphrey III, Attorney General of Minnesota, William L. Webster, Attorney General of Missouri, Robert M. Spire, Attorney General of Nebraska, Lacy H. Thornburg, Attorney General of North Carolina, Anthony J. Celebrezze, Jr., Attorney General of Ohio, Dave Frohnmayer, Attorney General of Oregon, Travis Medlock, Attorney General of South Carolina, Roger A. Tellinghuisen, Attorney General of South Dakota, David L. Wilkinson, Attorney General of Utah, Jeffrey Amestoy, Attorney General of Vermont, Don Hanaway, Attorney General of Wisconsin, and Joseph. B. Meyer, Attorney General of Wyoming; and for the Airborne Law Enforcement Association, Inc., by Ellen M. Condon and Paul J. Marino.
Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by Kent L. Richland, Pamela Victorine, John A. Powell, Steve R. Shapiro, Paul Hoffman, Joan W. Howarth, and James K. Green; for Community Outreach to Vietnam Era Returnees. Inc., by Deborah C. Wyatt; and for the National Association of Criminal Defense Lawyers by Milton Hirsch.
Ronald M. Sinoway filed a brief for the California Attorneys for Criminal Justice et al. as amici curiae.
Justice White
announced the judgment of the Court and delivered an opinion, in which The Chief Justice, Justice & alia, and Justice Kennedy join.
On certification to it by a lower state court, the Florida Supreme Court addressed the following question: “Whether surveillance of the interior of a partially covered greenhouse in a residential backyard from the vantage point of a helicopter located 400 feet above the greenhouse constitutes a ‘search’ for which a warrant is required under the Fourth Amendment and Article I, § 12 of the Florida Constitution.” 511 So. 2d 282 (1987). The court answered the question in the affirmative, and we granted the State’s petition for certiorari challenging that conclusion. 484 U. S. 1058 (1988).
Respondent Riley lived in a mobile home located on five acres of rural property. A greenhouse was located 10 to 20 feet behind the mobile home. Two sides of the greenhouse were enclosed. The other two sides were not enclosed but the contents of the greenhouse were obscured from view from surrounding property by trees, shrubs, and the mobile home. The greenhouse was covered by corrugated roofing panels, some translucent and some opaque. At the time relevant to this case, two of the panels, amounting to approximately 10% of the roof area, were missing. A wire fence surrounded the mobile home and the greenhouse, and the property was posted with a “DO NOT ENTER” sign.
This case originated with an anonymous tip to the Pasco County Sheriff’s office that marijuana was being grown on respondent’s property. When an investigating officer discovered that he could not see the contents of the greenhouse from the road, he circled twice over respondent’s property in a helicopter at the height of 400 feet. With his naked eye, he was able to see through the openings in the roof and one or more of the open sides of the greenhouse and to identify what he thought was marijuana growing in the structure. A warrant was obtained based on these observations, and the ensuing search revealed marijuana growing in the greenhouse. Respondent was charged with possession of marijuana under Florida law. The trial court granted his motion to suppress; the Florida Court of Appeals reversed but certified the case to the Florida Supreme Court, which quashed the decision of the Court of Appeals and reinstated the trial court’s suppression order.
We agree with the State’s submission that our decision in California v. Ciraolo, 476 U. S. 207 (1986), controls this case. There, acting on a tip, the police inspected the backyard of a particular house while flying in a fixed-wing aircraft at 1,000 feet. With the naked eye the officers saw what they concluded was marijuana growing in the yard. A search warrant was obtained on the strength of this airborne inspection, and marijuana plants were found. The trial court refused to suppress this evidence, but a state appellate court held that the inspection violated the Fourth and Fourteenth Amendments to the United States Constitution, and that the warrant was therefore invalid. We in turn reversed, holding that the inspection was not a search subject to the Fourth Amendment. We recognized that the yard was within the curtilage of the house, that a fence shielded the yard from observation from the street, and that the occupant had a subjective expectation of privacy. We held, however, that such an expectation was not reasonable and not one “that society is prepared to honor.” Id., at 214. Our reasoning was that the home and its curtilage are not necessarily protected from inspection that involves no physical invasion. “ What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.’” Id., at 213, quoting Katz v. United States, 389 U. S. 347, 351 (1967). As a general proposition, the police may see what may be seen “from a public vantage point where [they have] a right to be,” 476 U. S., at 213. Thus the police, like the public, would have been free to inspect the backyard garden from the street if their view had been unobstructed. They were likewise free to inspect the yard from the vantage point of an aircraft flying in the navigable airspace as this plane was. “In an age where private and commercial flight in the public airways is routine, it is unreasonable for respondent to expect that his marijuana plants were constitutionally protected from being observed with the naked eye from an altitude of 1,000 feet. The Fourth Amendment simply does not require the police traveling in the public airways at this altitude to obtain a warrant in order to observe what is visible to the naked eye.” Id., at 215.
We arrive at the same conclusion in the present case. In this case, as in Ciraolo, the property surveyed was within the curtilage of respondent’s home. Riley no doubt intended and expected that his greenhouse would not be open to public inspection, and the precautions he took protected against ground-level observation. Because the sides and roof of his greenhouse were left partially open, however, what was growing in the greenhouse was subject to viewing from the air. Under the holding in Ciraolo, Riley could not reasonably have expected the contents of his greenhouse to be immune from examination by an officer seated in a fixed-wing aircraft flying in navigable airspace at an altitude of 1,000 feet or, as the Florida Supreme Court seemed to recognize, at an altitude of 500 feet, the lower limit of the navigable airspace for such an aircraft. 511 So. 2d, at 288. Here, the inspection was made from a helicopter, but as is the case with fixed-wing planes, “private and commercial flight [by helicopter] in the public airways is routine” in this country, Ciraolo, supra, at 215, and there is no indication that such flights are unheard of in Pasco County, Florida. Riley could not reasonably have expected that his greenhouse was protected from public or official observation from a helicopter had it been flying within the navigable airspace for fixed-wing aircraft.
Nor on the facts before us, does it make a difference for Fourth Amendment purposes that the helicopter was flying at 400 feet when the officer saw what was growing in the greenhouse through the partially open roof and sides of the structure. We would have a different case if flying at that altitude had been contrary to law or regulation. But helicopters are not bound by the lower limits of the navigable airspace allowed to other aircraft. Any member of the public could legally have been flying over Riley’s property in a helicopter at the altitude of 400 feet and could have observed Riley’s greenhouse. The police officer did no more. This is not to say that an inspection of the curtilage of a house from an aircraft will always pass muster under the Fourth Amendment simply because the plane is within the navigable airspace specified by law. But it is of obvious importance that the helicopter in this case was not violating the law, and there is nothing in the record or before us to suggest that helicopters flying at 400 feet are sufficiently rare in this country to lend substance to respondent’s claim that he reasonably anticipated that his greenhouse would not be subject to observation from that altitude. Neither is there any intimation here that the helicopter interfered with respondent’s normal use of the greenhouse or of other parts of the curtilage. As far as this record reveals, no intimate details connected with the use of the home or curtilage were observed, and there was no undue noise, and no wind, dust, or threat of injury. In these circumstances, there was no violation of the Fourth Amendment.
The judgment of the Florida Supreme Court is accordingly reversed.
So ordered.
The Florida Supreme Court mentioned the State Constitution in posing the question, once in the course of its opinion, and again in finally concluding that the search violated the Fourth Amendment and the State Constitution. The bulk of the discussion, however, focused exclusively on federal cases dealing with the Fourth Amendment, and there being no indication that the decision “clearly and expressly ... is alternatively based on bona fide separate, adequate, and independent grounds,” we have jurisdiction. Michigan v. Long, 463 U. S. 1032, 1041 (1983).
The first use of the helicopter by police was in New York in 1947, and today every State in the country uses helicopters in police work. As of 1980, there were 1,500 such aircraft used in police work. E. Brown, The Helicopter in Civil Operations 79 (1981). More than 10,000 helicopters, both public and private, are registered in the United States. Federal Aviation Administration, Census of U. S. Civil Aircraft, Calendar Year 1987, p. 12. See also 1988 Helicopter Annual 9. And there are an estimated 31,697 helicopter pilots. Federal Aviation Administration, Statistical Handbook of Aviation, Calendar Year 1986, p. 147.
While Federal Aviation Administration regulations permit fixed-wing aircraft to be operated at an altitude of 1,000 feet while flying over congested areas and at an altitude of 500 feet above the surface in other than congested areas, helicopters may be operated at less than the mínimums for fixed-wing aircraft “if the operation is conducted without hazard to persons or property on the surface. In addition, each person operating a helicopter shall comply with routes or altitudes specificálly prescribed for helicopters by the [FAA} Administrator.” 14 CFR §91.79 (1988).
Question: What is the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed?
A. stay, petition, or motion granted
B. affirmed (includes modified)
C. reversed
D. reversed and remanded
E. vacated and remanded
F. affirmed and reversed (or vacated) in part
G. affirmed and reversed (or vacated) in part and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to or from a lower court
K. no disposition
Answer:
|
songer_direct1
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for the position of the prisoner; for those who claim their voting rights have been violated; for desegregation or for the most extensive desegregation if alternative plans are at issue; for the rights of the racial minority or women (i.e., opposing the claim of reverse discrimination); for upholding the position of the person asserting the denial of their rights. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards.
NATIONAL RIGHT TO WORK COMMITTEE, INC., et al. v. FEDERAL ELECTION COMMISSION, et al. FEDERAL ELECTION COMMISSION, v. NATIONAL RIGHT TO WORK COMMITTEE, INC., et al.
Nos. 80-1487, 80-1488.
United States Court of Appeals, District of Columbia Circuit.
Argued May 19, 1981.
Decided Sept. 4, 1981.
Certiorari Granted April 5,1982.
See 102 S.Ct. 1766.
Richard H. Mansfield III, Washington, D. C., with whom Alan P. Dye, Washington, D. C., and Richard J. Clair were on the brief, for appellants.
Miriam Aguiar, Atty., Federal Election Commission, Washington, D. C., with whom Charles N. Steele, Gen. Counsel, Kathleen Imig Perkins, Asst. Gen. Counsel, and Jeffrey H. Bowman, Atty., Federal Election Commission, Washington, D. C., were on the brief, for appellees.
Before TAMM, Circuit Judge, THORN-BERRY, Senior Circuit Judge, and WILKEY, Circuit Judge.
Opinion for the court filed by Senior Circuit Judge THORNBERRY.
Of the United States Court of Appeals for the Fifth Circuit, sitting by designation pursuant to 28 U.S.C. § 294(d) (1976).
THORNBERRY, Senior Circuit Judge:
The Federal Election Campaign Act of 1971, 2 U.S.C. § 431 et seq., and its subsequent amendments govern federal election campaigns by imposing restrictions on political contributions and expenditures that apply to all participants in the election process. In this appeal, the National Right to Work Committee (NRWC) challenges the constitutionality and application of sections 441b(b)(4)(A) and (C) of the Act, which together prohibit a corporation without capital stock from soliciting contributions from persons other than its members. The district court concluded that, as applied to NRWC, the statutory provisions in question are neither unconstitutionally vague nor overbroad and that NRWC had violated the Act by soliciting persons who were not members of the organization. Because in our view the term “members” as used in § 441b(b)(4)(C) necessarily includes those individuals solicited by NRWC, we reverse the judgment of the court below.
The National Right to Work Committee is a nonprofit corporation without capital stock that was formed to educate the public on and to advocate voluntary unionism. NRWC conducts a continuous and extensive program of advocacy through the dissemination of information on compulsory unionism to its members and to the general public. The Employee Rights Campaign Committee (ERCC) is a separate segregated fund established and maintained by NRWC to receive and expend funds on behalf of federal candidates, and it is registered as such with the Federal Election Commission (FEC).
In November 1977, the FEC began an enforcement proceeding in federal district court, charging that NRWC had violated 2 U.S.C. § 441b(b)(4) of the Federal Election Campaign Act, which declares it unlawful “for a corporation, or a separate segregated fund established by a corporation, to solicit contributions to such a fund from any person other than its shareholders and their families and its executive or administrative personnel and their families. ... ” In defense of its actions, NRWC relied on an exception to that prohibition, which provides that § 441b(b)(4) “shall not prevent a membership organization, cooperative, or corporation without capital stock, or a separate segregated fund established by a membership organization, cooperative, or corporation without capital stock, from soliciting contributions to such a fund from members of such organization, cooperative, or corporation without capital stock.” 2 U.S.C. § 441b(b)(4)(C). NRWC contended that the individuals it solicited were members of NRWC within the meaning of this provision. One month earlier, anticipating this enforcement proceeding, NRWC had filed a complaint seeking injunctive and declaratory relief and alleging, among other constitutional challenges, that the term “members” in § 441b(b)(4) was unconstitutionally vague. The cases were consolidated.
The FEC concedes that NRWC can freely solicit contributions from its “members,” if it has any within the meaning of § 441b. The Act does not define the term and FEC regulations adopt the standards of the organization, with the caveat that membership requirements cannot consist solely of the requirement that one contribute to the separate segregated fund. The FEC contends that NRWC’s articles of incorporation, which state that NRWC has no members, are dispositive. Alternatively, the FEC embraces the district court’s definition, which defines “members” as those “who stand in a similar relation to non-stock corporations as shareholders stand to stock corporations and union members stand to labor unions.” FEC v. National Right to Work Committee, 501 F.Supp. 422, 432 (D.D.C.1980).
We see absolutely no justification for applying a state law standard. State definitions of “members” in nonstock corporations for purposes of state corporate or tax law are not likely to take into account the important first amendment considerations at the heart of any controversy surrounding the construction or application of the Federal Election Campaign Act. Further, we are troubled by the fact that the FEC considers the article of incorporation dispositive only if they negate members for purposes of state law, but not if the articles provide for members.
We think that the Act requires a uniform definition. Considering the language of the Act in light of the interests it was designed to serve, however, we conclude that the definition adopted by the district court is so narrow that it necessarily infringes on associational rights. The district court considered NRWC’s argument to be in essence an attack on the general proscription on corporate spending in § 441b(a), 501 F.Supp. at 437, and the court therefore focused only on the constitutionality of this general rule. The court found the state interest in avoiding the appearance or actuality of corruption sufficiently compelling to sustain the restrictions on corporate spending and summarily concluded that “NRWC’s associational rights claim falls before the same compelling interest.” Id. at 438. By focusing on the general proscription rather than the more narrow provisions that are actually at issue in this case, the court neglected to consider important factors that distinguish, first, solicitation from contributions and expenditures and, second, non-stock corporations organized solely for political purposes from stock corporations. These factors suggest that neither of the interests advanced by the FEC can justify the restrictions on NRWC’s solicitation activities.
The first amendment clearly protects political expression in the form of association and solicitation. NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963); Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 100 S.Ct. 826, 63 L.Ed.2d 73 (1980). But these activities are not protected absolutely, and they may be regulated if the state demonstrates a sufficiently important interest and employs means closely drawn to avoid unnecessary abridgment of associational rights. Buckley v. Valeo, 424 U.S. 1, 25, 96 S.Ct. 612, 638, 46 L.Ed.2d 659 (1976). The district court correctly noted the primary objective of the Federal Election Campaign Act: the elimination of corruption and the appearance of corruption in the federal election process. Id. The restrictions imposed by § 441b on corporations and labor organizations, as well as insulating the political process from the deleterious influence of aggregated wealth, serve the additional objective of protecting dissenting minority interests from being coerced into supporting political philosophies to which they do not adhere or which they may not wish to promote. Pipefitters Local Union No. 562 v. United States, 407 U.S. 385, 414-415, 92 S.Ct. 2247, 2264, 33 L.Ed.2d 11 (1972); see also United States v. United Automobile Workers, 352 U.S. 567, 570-84, 77 S.Ct. 529, 530, 1 L.Ed.2d 563 (1957); United States v. Congress of Industrial Organizations, 335 U.S. 106, 113, 68 S.Ct. 1349, 1353, 92 L.Ed. 1849 (1948).
As to the first interest, we believe that solicitation, without more, will neither corrupt officials nor distort elections. In our view, contribution limitations and disclosure provisions are a more direct and less restrictive way to prevent or at least to expose any sort of quid pro quo arrangements. As to the second interest, the individuals from whom NRWC solicits contributions, unlike employees of a corporation or members of a labor union, clearly are not subject to coercion. We therefore fail to see how the interests asserted by the FEC are served by restricting NRWC’s solicitation activities.
The FEC argues that Bread Political Action Committee v. FEC, 635 F.2d 621 (7th Cir. 1980) (en banc), cert. granted, 453 U.S. 921, 101 S.Ct. 3157, 69 L.Ed.2d 1004 (1981), supports its position. There, the court considered and rejected a challenge to another exception, paragraph (D) of § 441b(b)(4), which parallels the exception in paragraph (C), and permits a trade association or its segregated political fund to solicit contributions from the stockholders and executive and administrative personnel of its member corporations and their families provided that the solicitation has been approved by the member corporation. The plaintiffs in Bread complained that the avenue of solicitation allowed them under paragraph (D) was too limited to withstand constitutional scrutiny. The court of appeals upheld the constitutionality of paragraph (D) as a “very narrowly drawn aspect of a statutory scheme carefully designed to balance a compelling governmental interest and jealously guarded First Amendment freedoms.” Id. at 629.
In our view, paragraph (D) does nothing more than ensure that trade associations will not provide a vehicle through which member corporations can avoid the restrictions on corporate solicitation in paragraph (4)(A)(i). Assuming that the (4)(A)(i) restrictions as applied to stock corporations withstand constitutional scrutiny, an issue not before us and one that we do not decide, it would seem that a provision such as paragraph (D) narrowly drawn to prevent the avoidance of those restrictions would withstand a similar challenge. But even if we assume that the interest in preventing coercion of a dissenting stockholder or union member is compelling enough to warrant the restrictions imposed by § 441b(b)(4)(A) on stock corporations and labor unions, this interest is not served by restricting the solicitation activities of a non-stock corporation organized solely for political purposes. The FEC’s reliance on the Bread decision is therefore misplaced.
The NRWC operation, in our view, ensures that NRWC accurately identifies and solicits only those individuals who share a similar political philosophy and who have evidenced a willingness to promote that philosophy through support of the Committee. See note 1 supra. The interests advanced by the FEC are indeed compelling, but the FEC has failed to demonstrate how those interests are served by prohibiting the solicitations at issue in this case. Absent the exception provided by subsection (C), then, we would seriously question the constitutionality of subsection (A) as applied to NRWC. We therefore hold that the term “members" in § 441b(b)(4)(C) embraces at least those individuals whom NRWC describes as its active and supporting members, reversing the judgment of the court below.
Reversed.
. NRWC attracts members by publicizing its position on issues relating to compulsory unionism through advertisements, personal contacts, and, primarily, letters. These letters describe the purpose of NRWC, urge the recipient to assist NRWC (by, for example, writing to legislators), request financial support, and ask the recipient to respond to a questionnaire that will determine whether that person shares a similar political philosophy. A person who, through his response, evidences an intention to support NRWC in promoting voluntary unionism qualifies as a member. A person who responds without contributing financially is considered a supporting member; a person who responds and also contributes is considered an active member. NRWC sends an acknowledgment and a membership card to both classes. In the regular course of operations, NRWC’s members receive newsletters, action alerts, and responses to individual requests for information. They respond to issue surveys and are asked to communicate with their elected representatives when appropriate. See Joint App., vol. II, at 387 et seq.
. The regulations governing corporate and labor organization activity provide:
(e) “Members” means all persons who are currently satisfying the requirements for membership in a membership organization, trade association, cooperative, or corporation without capital stock .... A person is not considered a member under this definition if the only requirement for membership is a contribution to a separate segregated fund.
Federal Election Commission Regulations, 11 C.F.R. § 114.1(e).
. The district court continued:
In other words, the term member should not be read to make the membership exception disproportionately broader or narrower than the shareholder exception or the union member exception. “Member” thus encompasses persons who have interests and rights in an organization similar to those of a shareholder in a corporation and a union member in a labor organization. To read the exception more broadly would be to upset the symmetry of the statutory scheme.
501 F.Supp. at 432.
. NRWC is incorporated under Virginia law. Official recognition of members in the articles of incorporation would have required NRWC to hold an annual meeting of all members, a prohibitively expensive requirement (and one, in our view, that serves no purpose in the context of a corporation organized not for profit or other business purposes, but for the promotion of a political philosophy). See Va.Code § 13.1-213.
. We note that during conciliation, NRWC offered to amend its articles of incorporation, but the FEC conditioned acceptance of that offer on the requirement that NRWC take additional undefined “other steps” to become a membership organization. We are inclined to agree with NRWC that the FEC has barricaded itself behind NRWC’s articles of incorporation throughout this litigation and has avoided the core problem of defining the terms “member" and “membership organization.”
. “[G]roup association is protected because it enhances ‘[effective advocacy.’ The right to join together ‘for the advancement of beliefs and ideas’ is diluted if it does not include the right to pool money through contributions, for funds are often essential if ‘advocacy’ is to be truly or optimally effective.” Buckley v. Valeo, 424 U.S. 1, 65-66, 96 S.Ct. 612, 657, 46 L.Ed.2d 659 (1976) (citations omitted).
. The appearance and reality of corruption stem from the real or imagined pressure imposed upon political candidates by those who contribute heavily to their campaigns. Thus,
the primary interest served by ... the Act as a whole ... is the prevention of corruption and the appearance of corruption spawned by the real or imagined coercive influence of large financial contributions on candidates’ positions and on their actions if elected to office.
To the extent that large contributions are given to secure a political quid pro quo from current and potential office holders, the integrity of our system of representative democracy is undermined.
Of almost equal concern ... is avoiding the appearance of corruption.
Buckley v. Valeo, 424 U.S. at 25-27, 96 S.Ct. at 638.
. It is not the aggregation of wealth but the distribution of it that may distort the political process. Further, we note that although Congress was concerned with the deleterious effects of aggregated wealth, “the aggregated wealth it plainly had in mind” was that in general purpose union or corporate treasuries, not funds donated by individuals “of their free and knowing choice.” See Pipefitters Local Union No. 562 v. United States, 407 U.S. 385, 416, 92 S.Ct. 2247, 2265, 33 L.Ed.2d 11 (1972).
. Corporations and labor organizations have primary responsibilities to shareholders and union members that are unrelated to wholesale participation in the electoral process. The solicitation provisions perhaps help to ensure that corporations and labor organizations attend first to those primary responsibilities. Further, § 441b(b)(4)(A) restricts corporations and labor organizations to the solicitation of those individuals likely to be harmed by corporate or union overindulgence in the political arena. None of these considerations arises in the-context of a non-stock corporation organized not for profit but to advance a particular political philosophy.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
|
songer_respond1_5_3
|
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.
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 "bureaucracy providing services". Your task is to determine which specific state government agency best describes this litigant.
GENERAL OUTDOOR ADVERTISING CO. et al. v. WILLIAMS et al., Commissioners of Department of Public Works.
(Circuit Court of Appeals, First Circuit.
May 29, 1926.)
No. 1988.
Courts' <§=>493(3) — Pendency of prior suit in state court for personal judgment restraining state department of public works from enforcing rules held no ground for dismissing suit in federal court between same parties for same relief.
Pendency of prior suit in state court to restrain state commissioners of department of public works from enforcing rules and regulations relating to advertising boards, and seeking merely personal judgment, and not involving title to property, was no ground for dismissing suit in federal court between same parties for same relief.
Appeal from the District Court of the United States for the District of Massachusetts; Lowell, Judge.
Suit by the General Outdoor Advertising Company, Inc., and others, against William F. Williams and others, Commissioners of the Department of Public Works, Division of Highways, of Massachusetts. From a decree dismissing their bill on defendant’s motion (9 F. [2d] 165), plaintiffs appeal.
Reversed and remanded.
• Lowell A. Mayberry, of Boston, Mass. (George L. Mayberry and Philip Mansfield, both of Boston, Mass., on the brief), for appellants.
Melville Fuller Weston, of Boston, Mass. (Jay R. Benton, of Boston, Mass., on the brief), for appellees.
Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges.
PER CURIAM.
This is a bill in equity, brought by numerous complainants, seeking to restrain the respondents, commissioners of the department of public works, division of
highways, of Massachusetts, from enforcing certain rules and regulations promulgated by the commissioners relating to complainants’ businesses of erecting and maintaining advertising boards in the state, on the ground that the rules and regulations are illegal and void, and that their enforcement would result in irreparable damage to the complainants and destruction of their property without due process of law or just compensation.
In the District Court the respondents filed a motion to dismiss, setting forth that the complainants had previously brought a suit in equity, identical in character with this one and seeking the same relief, in the Supreme Judicial Coúrt for Massachusetts, and that the state court had taken jurisdiction of the bill and issued an injunction pendente lite. The motion was heard before a judge of the District Court, who entered a decree dismissing the bill, and this appeal was taken.
We are of the opinion that the court erred in dismissing the bill. It is conceded that the District Court, as a federal court and as a court of equity, had jurisdiction and authority to entertain the bill. The mere pendeney of the prior suit in the state court, involving the same subject-matter, did not necessarily operate as a bar to the present proceeding and justify its dismissal.
The complainants’ bill is not a proceeding in rem or to try the title to property, nor does it involve the exercise of possession or control over specific property. Had the respective bills been proceedings in rem or to try the title to property or involved the possession or control of specific property, the jurisdiction of the state court having first attached, the federal court would he precluded from exercising its jurisdiction over the same property to defeat or impair the state court’s jurisdiction, and the bill properly might have been dismissed. But such is not the case, for the bill seeks a personal judgment or decree against the defendants and the dismissal was not authorized. See Kline v. Burke Construction Co., 260 U. S. 226, 43 S. Ct. 79, 67 L. Ed. 226, 24 A. L. R. 1077; McClellan v. Carland, 217 U. S. 268; 30 S. Ct. 501, 54 L. Ed. 762; Boston & Maine R. R. v. Dutille (C. C. A.) 289 F. 320; Covell v. Heyman, 111 U. S. 176, 182, 4 S. Ct. 355, 28 L. Ed. 390.
The decree of the District Court is reversed, and the ease is remanded to that court for further proceedings not inconsistent with this opinion, with costs to the appellants.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "state government (includes territories & commonwealths)", specifically "bureaucracy providing services". Which specific state government agency best describes this litigant?
A. Police
B. Fire
C. Taxation
D. Human Services/Welfare/Health Care
E. Streets and Highways
F. Transportation
G. Election processes
H. Education
I. Other Service Activity
J. not ascertained
Answer:
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songer_initiate
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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 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.
George L. CURRY, Appellant, v. Wallace C. RAGAN et al., Appellees.
No. 17095.
United States Court of Appeals Fifth Circuit.
June 26, 1958.
Certiorari Denied Oct. 13,1958.
See 79 S.Ct. 78.
George L. Curry, pro se.
Joe S. Moss, R. H. Burks, Acting City Atty., Homer T. Bouldin, Sr. Asst. City Atty., Houston, Tex., for appellees.
Before RIVES, JONES and BROWN, Circuit Judges.
PER CURIAM.
With commendable zeal and energy, accompanied by an intelligent oral argument, the appellant, a layman, pro se, prosecutes this appeal from a judgment dismissing his complaint on the double ground, “that the pleadings of plaintiff fail to state a claim upon which relief may be granted, and that there is a want of federal jurisdiction,” and from a further judgment denying his motion to reconsider and reinstate the case.
The complaint and amendments thereto and further pleadings, apparently by way of replication, are extremely lengthy, comprising more than sixty typed legal-sized pages. They have received our careful consideration. They allege many causes of action cognizable in the State Courts of Texas, such as false arrest, false imprisonment, trespass, malicious prosecution, and tortious negligence. They contain many conclusions, and the facts alleged are qualified by many adjectives. We do not, however, find any plain statement showing that the federal district court had jurisdiction, nor any “short and plain statement of the claim showing that the pleader is entitled to relief.” Rule 8(a), Federal Rules of Civil Procedure, 28 U.S.C.
For the federal jurisdiction claimed, the appellant relies upon Article III, Sec. 2, Paragraph 1 of the Constitution of the United States, upon the Fourteenth Amendment, Sec. 1, upon Title 28 U.S. Code, § 1343, and upon Title 42 U.S.C.A. §§ 1981, 1982, 1983, and 1985. He sues a Justice of the Peace of a precinct in Harris County, Texas, the surety on the Justice’s official bond, the Justice’s “Chief Civil Clerk,” and his “Night Criminal Clerk,” three police officers of the City of Houston, and that municipal corporation. He alleges that the Justice of Peace “set the chain of events in motion” by the rendition of a judgment against him in a “Kangaroo Court Trial” on what he describes as a groundless “Forcible Entry and Detainer Complaint.” Among his statement of points, his Ninth Point comes near to recognizing the fallacy of his claim of federal jurisdiction:
“The Court erred in dismissing Plaintiff’s case on the aforesaid grounds, against Defendant Wallace C. Ragan. For the principle of law has long ago been established in the case of Bradley v. Fisher, 13 Wallace 335, and followed many times since, for the Supreme Court said: ‘Judges of Courts of Superior or General Jurisdiction are not liable to civil actions for their judicial acts, even when such acts are in excess of their jurisdiction and are alleged to have been done maliciously or corruptly. A distinction must be here observed between Excess of Jurisdiction and the Clear Absence of all Jurisdiction over the subject matter.
“ ‘When there is clearly no Jurisdiction over the subject matter, any authority exercised is an Usurped Authority, when the want of Jurisdiction is known to the judge, No Excuse Is Permissible.’ ” (Sic.)
Appellant’s trouble is that no facts are alleged to show any such clear excess of jurisdiction. Texas Statutes do vest in Justices of the Peace jurisdiction of forcible entry and detainer actions, Articles 2385 and 3973, Vernon’s Annotated Texas Civil Statutes. So far as we can tell, the conduct of the clerks and of the police officers complained of were done for the purpose of enforcing the judgment in such an action and of dispossessing the appellant.
Neither the Fourteenth Amendment nor the Civil Rights Acts purport to secure a person against unfounded or even malicious claims or suits in state courts, especially so when the laws and courts of the state are available and furnish adequate remedies to a person aggrieved.
While we sympathize with the appellant’s obvious sincerity, if he has any remedy for the matters complained of, that remedy does not lie within the jurisdiction of the federal courts. The judgment is therefore
Affirmed.
Question: What party initiated the appeal?
A. Original plaintiff
B. Original defendant
C. Federal agency representing plaintiff
D. Federal agency representing defendant
E. Intervenor
F. Not applicable
G. Not ascertained
Answer:
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songer_appnatpr
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0
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
STEARNS-ROGER MFG. CO. v. RUTH.
No. 1348.
Circuit Court of Appeals, Tenth Circuit.
Oct. 14, 1935.
See also (C. C. A.) 62 F.(2d) 442.
Forrest C. Northcutt and Jesse G. Northcutt, both of Denver, Colo., for petitioner.
Max Melville, of Denver, Colo., for respondent.
Before LEWIS and BRATTON, Circuit Judges.
Rehearing denied Nov. 18, 1935.
LEWIS, Circuit Judge.
The bill to be filed, application for which is made, is in the case of Joseph P. Ruth, J'r., plaintiff, v. Stearns-Roger Manufacturing Company, a corporation, defendant, in the District Court for the District of Colorado. That is a patent infringement suit. Ruth as the owner of letters patent No. 1,277,750, issued to Pearce September 3, 1918, sued the corporation, and on final hearing the District Court on June 18, 1931, made findings of fact as follows:
“5. That the apparatus made and sold by the defendant is represented in drawing sheet No. 4965 annexed to defendant’s answer to interrogatories filed by the plaintiff.
“6. That the apparatus so manufactured and sold by the defendant does not infringe upon claims 1 and 3 of said Patent No. 1,-277.750 unless it is capable of being operated under normal and average conditions without employing the sands outlet.”
This is followed by the court’s conclusions of law.
“3. That claims 1 and 3 of Patent No., 1.277.750 are good and valid in law.
“4. That the apparatus represented in drawing sheet No. 4965 is capable of infringing and does infringe Claims 1 and 3 of said Patent No. 1,277,750.”
Thereafter on July 2, 1931, the court entered its decree in favor of Ruth. The decree refers to the findings of fact and conclusions of law, and upon consideration thereof it enjoined the corporation from further infringement in manufacturing, using, or selling any apparatus of the kind theretofore manufactured and sold by defendant exemplified in said drawing sheet No. 4965 annexed to defendant’s answers to plaintiff’s interrogatories; that plaintiff recover from defendant the profits and gains which it had received by reason of past infringements of claims 1 and 3 of plaintiff’s patent; and that the case be referred to a special master for an accounting. An appeal was taken to this court from the decree, and we affirmed. Stearns-Roger Mfg. Co. v. Ruth (C. C. A.) 62 F. (2d) 442. Thereupon the master was appointed, and he proceeded with the accounting, which has been completed. He took much testimony, confining it to apparatus or machines sold by defendant, which it had made in keeping with drawing sheet No. 4965, and parts made and sold as repairs to said machines. Said drawings displayed the sands outlets, and the machines were so manufactured.
Respondent opposes our granting permission to file the bill. It rests upon two alleged grounds : First. That the interlocutory decree is vague, ambiguous, indefinite. and uncertain in that it does not clearly appear whether Ruth was to be awarded the profits received by the corporation in the sale of machines and parts therefor that were equipped with sands outlets through which a substantial portion of the tailings are discharged; that petitipner did not discover until June 29, 1935, the ambiguity, indefiniteness, and uncertainty in said interlocutory decree in that it does not appear therefrom whether the machines manufactured and sold by petitioner were equipped with sands outlets through which a large amount of tailings are discharged. Second. That Stearns-Roger Manufacturing Company has discovered since the filing of our mandate in the District Court new evidence material to the case, viz.: In the spring of 1933 Ruth served notices of infringement on petitioner’s • customers: that said customers thereafter caused tests to be made on the flotation machines sold by petitioner to them as to the amount and quantity of tailings that were discharged through the sands outlet in practical and commercial operation of the machines; that said tests showed that from 50 to 85 per cent, of tailings were discharged through the sands outlet. The dates of those tests are not given. It is alleged that subsequent to the dates of tests made by said customers, petitioner has itself caused tests and calculations to be made to determine the amount of tailings that were discharged through the sands outlet, and those tests show, as did the customers’, 50 to 85 per cent.; that said sands outlet are essential in the commercial operation of the machines and reduces the cost; and that such evidence could not have been sooner discovered by the exercise of reasonable diligence.
It may be doubted whether the first ground stated rests solely on ambiguity and uncertainty in the decree. It seems rather a mingling of the two grounds. But, however that may be, the decree of the District Court as originally entered does not control. The mandate of this court in the light of our opinion on the appeal is the guide, and from that view we think no uncertainty can be found. The machine patented to Pearce and owned by Ruth, which was adjudged to be infringed as to claims 1 and 3, is shown in the drawing on page 443 of 62 F.(2d). It is observed that the froth or foam carrying mineral is discharged at the upper right-hand corner of the compartment and the tailings at a slightly lower level immediately to the left thereof. The infringing device is shown in 62 F.(2d) 443, at page 447. The froth overflows at the upper right-hand corner also, whereas the tailings pass through the opening at figure 1 at a much lower level thap the froth overflow and are then carried upward over the top of the weir which is slightly lower than the froth overflow, the weir being shown at figure 3. At figure 2 the infringing machine had what is designated as sands outlet at the lower end of the weir. In column one in 62 F.(2d) 443, on page 448 of our opinion we observed that the Stearns-Roger Company contended, “that the heavier tailings pass out through the sands discharge opening 2.” In column two- on that page, after noting amendments of claims in the Pearce patent in the patent proceedings and their effect, we said: “We are of the opinion that these amendments so narrowed the claims that the inclusion of the sands hole 2 in the alleged infringing device would avoid infringement if it were essential to the operation of the device and if it were employed in the commercial use of the device. * * * However, the evidence established, and the trial court found, that the sands discharge was not necessary to a proper functioning of the device, and that in the use of the commercial device this hole was kept closed.”
Further on we said: “The sands hole, as compared with the opening over the weir, is very small and only a slight and insignificant amount of tailings will escape through the sands hole, as compared with the amount which will pass over the weir. * * * We conclude that the sands hole effects a slight change in efficiency alone, that it is not essential to the device, and that, notwithstanding it, the alleged infringing device employs the principle and appropriates the substance of the patent.”
There can be no doubt as to what was adjudicated on that appeal, and the first ground set up in the proposed bill is clearly without merit.
Furthermore, and with reference to the second ground, it is observed that the utility of the sands outlet, its purpose, and the service it was intended to render in the combination was in issue at the trial in the District Court. Expert witnesses gave tes' timony on the subject. Wilkinson and Littleford, patentees of a flotation machine subsequent in application and issuance to the Pearce patent owned by Ruth, are supposed to be the discoverers of the sands outlet. -.Of it they said in their specificalions: “When operating on pulps carrying heavy sands or large particles, 'it may be desirable in some instances to provide a by-pass such as the orifice 55 (sands outlet) in the partition 36 (the weir), to allow a portion of the pulp containing the heavy or large particles of said pulp to flow directly from the upflow conduit to the down-flow conduit, thus avoiding the necessity of carrying said particles over the weir and also preventing any obstruction due to settling in the upflow conduit. This orifice 55 may be conveniently located opposite the rectangular outlet 15. Ordinarily, however, this orifice will be closed by the plug, as shown.”
This Wilkinson and Littleford patent belongs to Mineral Separation North American Corporation, and it drew the plans and sent them to its licensee, the Stearns-Roger Manufacturing Company, from which infringing machines were made. Mr. Wilkinson is an employee of the North American corporation' and has been such for over 20 years. He testified in this case and bore out the above excerpts from the specifications of his patent. Other witnesses testified concerning the sands outlet. The subject was discussed in the briefs on appeal in this court.
In Southard v. Russell, 16 How. 547, 568, 569, 14 L. Ed. 1052, the Supreme Court approved the rule pronounced by Chancellor Kent:
“The rule, as laid down by Chancellor Kent ([Livingston v. Hubbs], 3 Johns. Ch. [N. Y.] 124), is, that newly discovered evidence, which goes to impeach the character of witnesses examined in the original suit, or the discovery of cumulative witnesses to a litigated fact, is not sufficient. It must be different, and of a very decided and controlling character. [Brewer v. Bowman], 3 J. J. Marsh. (Ky.) 492 [20 Am. Dec. 158]; 6 Madd., 127; Story, Eq. Pl. § 413.
“The soundness of this rule is too apparent to require argument, for, if otherwise, there would scarcely be an end to litigation in chancery cases, and a temptation would be held out to tamper with witnesses for the purpose of supplying defects of proof in the original cause.”
In Purcell v. Miner, 4 Wall. 519, 521, 18 L. Ed. 459, the court said: “Suffice it to say that the petitioner has not presented a single feature of a case within the rules. He offers no new evidence, but what he might as well have produced before, and which, if it had been produced, would not have justified a decree in his favor.”
In Beard v. Burts, 95 U. S. 434, 436, 24 L. Ed. 485: “The facts are not open for a re-trial, unless the bill asserts that new evidence has been discovered, not obtainable before the first trial by the exercise of reasonable diligence.”
Cooper’s Equity Pleading, page 91, in discussing Lord Bacon’s rule relative to newly discovered evidence says this: “And if there has been anything like mere forgetfulness or negligence in parties under no incapacity, it will not do. And it must appear, that the new matter has come materially and substantially to the knowledge of the party or his agents, which is the same thing, since the time of the decree in the former cause, or since such time as he could have used it to his benefit and advantage in the former cause.”
Judge Walter H. Sanborn, speaking for the Court of Appeals in Hill v. Phelps, 101 F. 650, 652, said this as to newly discovered evidence to sustain a bill of the sort we have here: “The newly-discovered evidence which may form the basis of such a review must be, not only evidence which was not known, but also such as could not, with reasonable diligence, have been found before the decree was made.” See, also Continental Oil Co. v. Osage Oil & Refining Co. (C. C. A.) 69 F.(2d) 19, 24; Swift v. Parmenter (C. C. A.) 22 F.(2d) 142; Rothschild & Co. v. Marshall (C. C. A.) 51 F. (2d) 897.
Harvey Mathews, an employee of Stearns-Roger Company for many years, verified the tendered bill. In his verification he says on oath that he is a graduate of the Colorado School of Mines with the degree of Engineer of Mines, 1913; that between his graduation in 1913 and 1922 he was continuously employed in mills which treated ores in various capacities, at times as general superintendent; that since 1922 to the present time he has had complete charge of the installation of the machines sold by Stearns-Roger; that he saw 11 machines (of the 14 which the master found infringed) when they were ready for shipment and had observed several of them in use and in operation; that it was not practical to operate them without keeping the sands hole open, and that it has always been the custom and practice to use the sands hole in operation. He was a witness for defendant at the trial. He was petitioner’s sales engineer, and it cannot be believed that he did not know at the trial the extent of use and the materiality of the sands outlet at that time, or the immediate necessity of then ascertaining the claimed new facts as to tests for that purpose. His knowledge in that respect is attributable to his employer. Cooper’s Equity Pleading, supra. The same comments may be made as to Arthur J. Weinig, who also verified the tendered bill, and'who is also a graduate of the Colorado School of Mines in 1908, and who was also in the employ of Stearns-Roger at the time of these sales.
With these experts at hand, the progress of the trial relative to the sands outlet would have alone suggested the immediate ■development of tests. We are therefore ■unable to accept the contention that the tendered bill is within the rule as to this .ground. The application to file is denied.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
songer_circuit
|
L
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case.
McMILLAN PARK COMMITTEE, Tony Norman, and Arthur Kinkead v. NATIONAL CAPITAL PLANNING COMMISSION; Sharon Pratt Kelly, Mayor of the District of Columbia; and Ric Murphy, Director of the Department of Administrative Services of the District of Columbia, Appellants.
Nos. 91-5134, 91-5135, 91-5143 and 91-5166.
United States Court of Appeals, District of Columbia Circuit.
Argued Feb. 21, 1992.
Decided July 7, 1992.
Jacques B. Gelin, Atty., Dept, of Justice, with whom Barry M. Hartman, Acting Asst. Atty. Gen., Jay B. Stephens, U.S. Atty., John C. Cleary, Asst. U.S. Atty., and Martin W. Matzen, Atty., Dept, of Justice, Washington, D.C., were on the brief, for federal appellants.
Lutz Alexander Prager, Asst. Deputy Corp. Counsel, Office of the Corp. Counsel, with whom John Payton, Corp. Counsel, and Charles L. Reischel, Deputy Corp. Counsel, Washington, D.C., were on the brief, for appellants Sharon Pratt Kelly, et al.
Katherine A. Meyer, Washington, D.C., for appellees McMillan Park Committee, Tony Norman and Arthur Kinkead in Nos. 91-5134 and 91-5166.
Andrea C. Ferster, with whom David A. Doheny and Elizabeth S. Merritt, Washington, D.C., for National Trust for Historic Preservation in the U.S., and Lovida H. Coleman, Jr., for the D.C. Preservation League, were on the joint brief, for appel-lees in Nos. 91-5135 and 91-5143.
Before EDWARDS, SENTELLE, and RANDOLPH, Circuit Judges.
Opinion for the Court filed by Circuit Judge SENTELLE.
Concurring opinion filed by Circuit Judge RANDOLPH.
SENTELLE, Circuit Judge:
The National Capital Planning Commission (“Planning Commission”) and the District of Columbia government (“D.C.” or “the District”) appeal from a District Court order involving the National Historic Preservation Act (“NHPA”), 16 U.S.C. §§ 470 to 470w-6. Finding that the Planning Commission violated the NHPA when it reviewed an amendment to the Comprehensive Plan for the National Capital that would allow commercial development of McMillan Park, the District Court issued an injunction prohibiting implementation of the amendment. Because we conclude on the facts of this case that the Planning Commission did not engage in an “undertaking,” as that term is defined in regulations implementing the NHPA, we hold that the Planning Commission did not violate the NHPA and we therefore reverse.
BACKGROUND
I. Statutory Backdrop
A. The National Historic Preservation Act
As explained in Lee v. Thornburgh, 877 F.2d 1053, 1056 (D.C.Cir.1989), the NHPA is “aimed solely at discouraging federal agencies from ignoring preservation values in projects they initiate, approve funds for or otherwise control.” Section 106 of the NHPA, 16 U.S.C. § 470f, accomplishes this by requiring federal agencies to consult with the Advisory Council on Historic Preservation (“Advisory Council”) prior to taking an action that may affect a site “included in or eligible for inclusion in the National Register.” In full, § 106 provides:
The head of any Federal agency having direct or indirect jurisdiction over a proposed Federal or federally assisted undertaking in any State and the head of any Federal department or independent agency having authority to license any undertaking shall, prior to the approval of the expenditure of any Federal funds on the undertaking or prior to the issuance of any license, as the case may be, take into account the effect of the undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register. The head of any such Federal agency shall afford the Advisory Council on Historic Preservation established under section 470i to 47Ov of this title a reasonable opportunity to comment with regard to such undertaking.
16 U.S.C. § 470f (emphasis added).
Agencies thus incur an obligation to comply with the NHPA when they engage in an “undertaking.” See id.; Lee, 877 F.2d at 1056 (“[The] NHPA imposes obligations only when a project is undertaken either by a federal agency or through the auspices of agency funding or approval.”). The NHPA itself provides scant guidance for determining whether an undertaking has occurred, but the Advisory Council, in its implementing regulations, 36 C.F.R. Part 800, furnishes a detailed definition:
Undertaking means any project, activity, or program that can result in changes in the character or use of historic properties, if any such historic properties are located in the area of potential effects. The project, activity, or program must be under the direct or indirect jurisdiction of a Federal agency or licensed or assisted by a Federal agency. Undertakings include new and continuing projects, activities, or programs and any of their elements not previously considered under section 106.
36 C.F.R. § 800.2(o).
Once triggered, an agency must satisfy a number of consultation and review procedures, known as the § 106 process, which require it to work with state historic preservation officers and the Advisory Council in tailoring proposed undertakings so that, to the extent possible, they do not harm historic properties. See 36 C.F.R. §§ 800.3 to 800.5 (describing regulatory steps involved in the § 106 process).
B. The National Capital Planning Act
The National Capital Planning Act (“Planning Act”), 40 U.S.C. §§ 71-74, empowers the National Capital Planning Commission (“Planning Commission”) “to preserve the important historical and natural features” of the federal city. 40 U.S.C. § 71a(a)(1). Much of the Planning Commission’s duties center on the comprehensive plan for the National Capital, which it prepares and updates in conjunction with the D.C. government. 40 U.S.C. § 71c. First promulgated by the Planning Commission and the D.C. government in 1983, the comprehensive plan consists of federal and local elements, serves as a blueprint for future city development, and identifies federal interests that developers must accommodate. Planning Commission Comprehensive Plan for the National Capital, Parks, Open Space and Natural Features 2 (hereinafter “Comprehensive Plan”), reprinted in Joint Appendix (“J.A.”) 105-117.
The D.C. government, through action by the Mayor and City Council, may adopt proposed amendments to the comprehensive plan and then submit them to the Planning Commission “for review and comment with regard to the impact of such ... amendment on the interests or functions of the Federal Establishment in the National Capital.” 40 U.S.C. § 71a(a)(3). Upon receipt of an amendment, the Planning Commission “shall, within sixty days ..., certify to the [City] Council whether such ... amendment has a negative impact on the interests or functions of the Federal Establishment in the National Capital.” Id. § 71a(a)(4)(A). Should the Planning Commission fail to act within the sixty-day time limit, such “amendment shall be deemed to have no such negative impact and ... shall be incorporated into the comprehensive plan [for the National Capital] and it shall be implemented.” 40 U.S.C. § 71a(a)(4)(C). Finally, if the Planning Commission makes a finding of negative impact, the D.C. government may suggest modifications to the amendment; however, the Planning Commission retains the power to veto any amendment to the comprehensive plan that it finds will result in a negative impact. Id. § 71a(a)(4)(B)-(C).
II. Factual Background
McMillan Park lies in the northern part of the District of Columbia adjacent to North Capitol Street. Until the mid-1980’s, the Army Corps of Engineers owned the site, which accommodated a massive slow sand drinking water filtration system dating from the early days of this century. In 1991, the D.C. Historic Preservation Review Board designated McMillan Park a Historic Landmark and nominated the site for the National Register of Historic Places.
During the Corps of Engineers’s ownership, no commercial development of the Park occurred, and public access to the Park had been restricted since World War II when the Army erected a fence to guard against sabotage of the city’s water supply. When the Planning Commission prepared the federal element of the first Comprehensive Plan in 1983, it included McMillan Park as among the “Parks, Open Space and Natural Features” of the city that “should be conserved and whose essential Open Space Character [be] maintained.” Comprehensive Plan 33, reprinted in J.A. 116. The Park’s future became uncertain, though, in 1986 when the Corps of Engineers declared the property surplus and asked the General Services Administration (“GSA”) to dispose of it.
As the GSA searched for prospective buyers, the Planning Commission urged “the continuation of the open space ambiance that currently exists and the continuation of the treatment of this site as a Special Place.” Planning Commission Report to the General Services Administration, NCPC File No. 0841, at 3 (May 1, 1986), reprinted in J.A. 121, 123. While not disagreeing with this goal, the GSA iterated its position that open space was not the highest and best use of the property, and insisted on selling the property for mixed commercial development. The D.C. government first expressed interest in the Park in June of 1986, and agreed to purchase the Park for mixed commercial/public use. Letter from William B. Johnson, Director, D.C. Dep’t of Administrative Services, to B.C. Maltby, GSA (Sept. 23, 1986) (“Johnson Letter”), reprinted in J.A. 129.
At this point, the Advisory Council expressed “serious concerns” about the transfer and chastised GSA for not engaging in the NHPA § 106 process to determine if the site contained any historic or cultural resources. To satisfy these concerns, GSA agreed to include in the Deed of Sale to the District eight restrictive covenants suggested by the Advisory Council. The covenants did not prevent the District from using the Park for commercial development, but required it to submit all development plans to the D.C. Historic Preservation Officer for approval. If approval could not be obtained, then the District must “immediately request the comments of the [Advisory] Council in accordance with 36 C.F.R. 800.” Brief for Federal Appellants at 12; see also Offer to Purchase Real Estate and Acceptance ¶ 3.11, reprinted in J.A. 142, 145.
The Advisory Council thereupon issued a letter to GSA stating that, based on inclusion of the restrictive covenants, “the requirements of Section 106 of the National Historic Preservation Act and the Council’s regulations have been met for this project.” Letter from Don L. Klima, Advisory Council, to Patricia Bailey, GSA (March 25, 1987), reprinted in J.A. 141. With the covenants in place and the Advisory Council satisfied that the GSA. had complied with the NHPA, the District purchased McMillan Park for $9.3 million.
The District still could not develop the Park, however, unless the Comprehensive Plan was amended to permit commercial development. On December 21, 1989, the City Council enacted an amendment, among about 125 others, to the Plan that would place the Park in “the mixed use medium density residential, moderate density commercial, and parks, recreation, and open space land use category.” D.C. Act 8-138, amendment 110 (Dec. 21, 1989), reprinted in J.A. 230, 231. The Park amendment, along with the others, then went to the Planning Commission for its review as mandated by § 71a of the Planning Act.
At a meeting of the Planning Commission on February 22, 1990, to consider the amendments package, a representative of the Preservation Trust argued that the Planning Commission should not “approve” the amendment regarding McMillan Park until consulting with the Advisory Council under the § 106 process. The Planning Commission did not initiate the § 106 process, however, and moved forward with their review of the amendments. They did include within non-binding recommendations their “concern” about the Park and their objection “to the disposition of the site for private or semi-public development that would not maintain [the Park’s] character as undeveloped open space.” Planning Commission Executive Director’s Recommendation, NCPC File Nos. CP19 & CP01/2028, at 9-10, reprinted in J.A. 247, 255-56. But the Planning Commission ultimately found that the Park amendment would not create a negative impact, and they so advised the D.C. Council.
In a letter dated March 22, 1990, the Advisory Council advised the Planning Commission that, “[fjrom our understanding of the case,” the § 106 process applied to the Commission’s “approval” of Comprehensive Plan amendments regarding McMillan Park. J.A. 339. The Planning Commission responded by asserting that it was not engaging in an “undertaking” because it simply reviews, not “approve[s],” Comprehensive Plan amendments. Letter from Reginald Griffith, Planning Commission, to John Fowler, Advisory Council 1 (Apr. 3, 1990), reprinted in J.A. 341. The letter also suggested that the restrictive covenants in the deed to McMillan Park “specifically anticipated land use changes,” thereby making an additional § 106 review “superfluous.” Id. at 341-42.
The next day, April 4, 1990, the Planning Commission transmitted to the D.C. Council its final certification that the Park amendment did not have a negative effect on the federal interest. As required by D.C.Code § 1-233(c), the City Council transmitted the amendments to Congress for its thirty-day review. After the review period expired without congressional objection, the amendments became effective in May 1990.
The McMillan Park Committee and the National Trust for Historic Preservation challenged the Park amendment in District Court, arguing that the Planning Commission’s 40 U.S.C. § 71a review constituted an undertaking and triggered the § 106 process. Agreeing with the challengers, the District Court found that the Planning Commission did not observe procedures required by law, declared the Park amendment invalid, and enjoined all “actions taken in reliance upon it.” McMillan Park Comm. v. National Capital Plan. Comm’n, 759 F.Supp. 908, 917 (D.D.C.1991). This appeal followed.
Analysis
Without expressing any views on the District Court’s analysis, we need not reach today the issue of whether Planning Commission review of proposed amendments to the Comprehensive Plan under 40 U.S.C. § 71a triggers the § 106 process. Instead, we are convinced that the possible adverse effects created by the Park amendment were considered to the satisfaction of the NHPA when the District purchased McMillan Park from the federal government. Since implementation of the Park amendment entails no new, unconsidered elements, the Planning Commission’s review of the amendment could not constitute an “undertaking,” and no NHPA obligations attach.
In determining if the Planning Commission’s action comprised an “undertaking,” we look to the Advisory Council’s regulations implementing the NHPA, promulgated under authority granted by Congress, 16 U.S.C. § 470s. Though perhaps not an administrative agency in the sense contemplated by Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837, 844, 104 S.Ct. 2778, 2782, 81 L.Ed.2d 694 (1984) (remarking on the “considerable weight [that] should be accorded to an executive department’s construction of a statutory scheme it is entrusted to administer”), we nevertheless believe the Advisory Council regulations command substantial judicial deference. In an analogous situation, the Supreme Court in Andrus v. Sierra Club, 442 U.S. 347, 99 S.Ct. 2335, 60 L.Ed.2d 943 (1979), explained that regulations issued by the Council on Environmental Quality interpreting the National Environmental Policy Act (“NEPA”) were entitled to “substantial deference” because the “Council was created by NEPA, and charged in that statute with the responsibility ‘to review and appraise the various programs and activities of the Federal Government in the light of the policy set forth in ... this Act ..., and to make recommendations to the President with respect thereto.’ ” Id. at 358, 99 S.Ct. at 2341 (citations omitted). Similarly, the Advisory Council was created by the NHPA, 16 U.S.C. § 470i, and charged in that Act with the responsibility to “advise the President and the Congress on matters relating to historic preservation,” and to “review the policies and programs of Federal agencies and recommend to such agencies methods to improve the effectiveness, coordination, and consistency of those' policies and programs with the policies and programs carried out under this subchap-ter.” Id. § 470j(a)(1) & (6). Given the Supreme Court’s reasoning in Andrus, we see no basis 'for extending the Advisory Council’s NHPA regulations any less deference than is traditionally afforded the NEPA regulations of the Council on Environmental Quality.
As defined by the Advisory Council regulations, an “undertaking” includes “new and continuing projects, activities, or programs and any of their elements not previously considered under section 106.” 36 C.F.R. § 800.2(o) (emphasis added). The necessary implication. of this definition is that a project in which all the elements have been “previously considered under section 106” does not comprise an “undertaking.” We find this definition entirely reasonable, and observe that it comports with a logical application of the NHPA; for if a project has previously satisfied the § 106 process, then nothing would be gained by further review if there are no new, unconsidered elements presented by the project.
Applying this understanding of “undertaking,” we find that the Advisory Council previously considered all the elements presented by the Park amendment at the time the District purchased the Park from the GSA. When the GSA made the property available, it specified that the range of possible uses included commercial and residential development, GSA Notice of availability of excess. real property, DC-P-12 (March 14, 1986), reprinted in J.A. 118-19, and it rejected a suggestion that the Park be used solely for recreation and open space. Letter from B.C. Maltby, GSA to Reginald Griffith, Planning Commission (May 21, 1986), reprinted in J.A. 126. Likewise, the D.C. government made clear its intention to use the site for recreational space, low and moderate income housing, and commercial development. Johnson Letter, reprinted in J.A. 129.
Shortly after the Johnson Letter, the Advisory Council reminded the GSA about its responsibilities under the NHPA regarding the proposed sale of the Park-. Letter from Don Klima, Advisory Council, to B.C. Malt-by, GSA (Sept. 29, 1986), reprinted in J.A. 131. As detailed above, the GSA submitted that if it emplaced in the District’s deed the eight restrictive covenants recommended by the Advisory Council, then the sale would have no adverse effects on the historic resources at the Park and would therefore comply with the NHPA. .Letter from Patricia Bailey, GSA, to Don Klima, Advisory Council (Feb. 27, 1987), reprinted in J.A. 139 (citing 36 C.F.R. § 800.9(c)(3), which provides that an undertaking involving the sale of property may be found to have no “adverse effect” if “adequate restrictions or conditions are included to ensure preservation of the property’s significant historic features.”).
These covenants, the effectiveness of which no party contests, nearly duplicate the § 106 process by providing extensive consultation rights for the D.C. historic preservation officer before any development may take place at the Park and by requiring the Advisory Council to mediate disputes concerning effects on historic resources. Responding to the GSA’s submission, the Advisory Council concurred that, by including the restrictive covenants, the “requirements ..of Section 106 of the [NHPA] and the Council’s regulations have been met for this project.” Letter from Don Klima, Advisory Council, to Patricia Bailey, GSA (March 25, 1987), reprinted in J.A. 141.
From this sequence of events and the protections obtained in the restrictive covenants, we believe the Advisory Council had a full opportunity to review the proposed use of the Park for commercial development, and satisfied itself that a change in the Park’s use-designation could be achieved consistent with the strictures of the NHPA through inclusion of the protective covenants. ■ We therefore fail to see why the Park amendment, which does no more than codify the change in the Park’s use-designation in the manner contemplated by the Advisory Council at the time of the sale, demands additional § 106 review. The Park amendment does not specify how the land will be developed or what structures may be placed there, nor does it limit in any way the operation of the restrictive covenants contained in the District’s deed to the Park. Moreover, this is not a case where the GSA sold the property with covenants predicated on a recreational use of the Park and the Planning Commission was then presented with an amendment allowing commercial development. Instead, the Park amendment adds no new element previously unconsidered under the § 106 process, and we therefore find that it did not constitute an “undertaking” and could not obligate the Planning Commission to comply with the § 106 process.
We do not say that an agency’s compliance with the § 106 process for a project necessarily satisfies all future obligations that it or other federal agencies may have to comply with the NHPA regarding the same project. As discussed in Vieux Carre Property Owners v. Brown, 948 F.2d 1436, 1444-45 (5th Cir.1991), there is a line of cases suggesting that whenever a federal agency has approval authority over a continuing project and has the power to modify the project to mitigate any adverse impacts on historic resources, then the § 106 process may apply. Id. at 1445 n. 27 (citing cases so holding). However, we find these cases inapposite, since they all involved on-going projects, funded or approved by a single federal agency, that had never been subjected to the § 106 process or received Advisory Council approval. See Vieux Carre, 948 F.2d at 1439-40 (relating that the United States Army Corps of Engineers did not employ the § 106 process when approving an applicant’s project under a nationwide permit); Morris County Trust for Historic Preservation v. Pierce, 714 F.2d 271, 279 (3d Cir.1983) (“It is undisputed that [the federal agency] did not at any time take into account the effect of the [project] on [a historic resource], or afford the Advisory Council ... a reasonable opportunity to comment on the project.”); and Waterbury Action to Conserve Our Heritage, Inc. v. Harris, 603 F.2d 310, 315 (2d Cir.) (noting that Advisory Council and State Historic Preservation Officer had not been consulted concerning a federally-funded project),. cert. denied, 444 U.S. 995, 100 S.Ct. 530, 62 L.Ed.2d 426 (1979). Where, as here, a project has been found by the Advisory Council to comply fully with the § 106 process, we will heed 36 C.F.R. § 800.2(o) and find that no undertaking occurs when that same project, with no new, unreviewed elements, comes before a second federal agency.
Finally, we wish to dispel any thought that we are disposing of this case under 36 C.F.R. § 800.5(b), which allows agencies to satisfy the § 106 process if they can show that their project will have no adverse effect on historic resources. As the District Court properly found, findings of no adverse effect must be documented and submitted to a state historic preservation officer for review. See McMillan Park, 759 F.Supp. at 914. The Planning Commission never prepared a finding of no adverse effect, and could therefore not avail itself of this process. However, an agency need not satisfy the § 106 process at all, let alone § 800.5(b), unless it is engaged in an undertaking. Lee, 877 F.2d at 1056. And we find that the Planning Commission’s review of the Park amendment did not, under the circumstances before us today, constitute an undertaking.
CONCLUSION
For the reasons discussed above, we find that the Planning Commission’s consideration of the Park amendment under 40 U.S.C. § 71a did not constitute an “undertaking” under the NHPA given the prior review of this project by the Advisory Council. Accordingly, the decision of the District Court below is
Reversed.
. The definition section of the NHPA, 16 U.S.C. § 470w, reads:
“‘Undertaking’ means any action as described in section 470f of this title." 16 U.S.C. § 470w(7).
Question: What is the circuit of the court that decided the case?
A. First Circuit
B. Second Circuit
C. Third Circuit
D. Fourth Circuit
E. Fifth Circuit
F. Sixth Circuit
G. Seventh Circuit
H. Eighth Circuit
I. Ninth Circuit
J. Tenth Circuit
K. Eleventh Circuit
L. District of Columbia Circuit
Answer:
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sc_caseoriginstate
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06
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state of the court in which the case originated. Consider the District of Columbia as a state.
PRICE v. JOHNSTON, WARDEN.
No. 111.
Argued December 16, 1947.
Decided May 24, 1948.
Joseph L. Rank, Jr. argued the cause for petitioner. With him on the brief was Irving J. Levy.
Frederick Bernays Wiener argued the cause for respondent. With him on the brief were Solicitor General Perl-man, Assistant Attorney General Quinn, Robert S. Erdahl and Beatrice Rosenberg.
Wayne M. Collins filed a brief for the American Civil Liberties Union, as amicus curiae, urging reversal.
Mr. Justice Murphy
delivered the opinion of the Court.
The writ of habeas corpus has played a great role in the history of human freedom. It has been the judicial method of lifting undue restraints upon personal liberty. But in recent years the increased use of this writ, especially in federal courts, has created many procedural problems which are not easy of solution. This case involves some of those problems. Because of the importance of the writ and the necessity that it not lose its effectiveness in a procedural morass, we have deemed it wise to deal with this case at length and to set forth fully and explicitly the answers to the matters at issue.
In 1938, petitioner was convicted in a federal district court in Michigan under a four-count indictment charging violations of the federal bank robbery statute. He was sentenced to imprisonment for 65 years and was committed to the United States Penitentiary at Alcatraz, California. His efforts to prosecute an appeal from his conviction proved futile.
Since his confinement at Alcatraz, petitioner has made four separate applications for writs of habeas corpus in the United States District Court for the Northern District of California. The instant proceeding involves the fourth of these applications. Inasmuch as the problems in this case can best be understood in light of the issues raised in the earlier proceedings, it becomes necessary to examine the various applications in some detail.
1. The first application was prepared and filed in 1940 by petitioner, who is not a lawyer. He sought release mainly on the grounds that certain evidence used against him at the trial had been obtained in violation of the Fourth Amendment and that the trial judge had improperly refused to disqualify himself upon the filing of an affidavit of prejudice. It is important to note that this application did not allege that the conviction resulted from the prosecution’s knowing use of false testimony. The District Court issued an order to show cause, a return was made, and the petitioner then filed a traverse in the form of a “Motion to overrule Respondent’s return and issue writ.” This motion likewise failed to aver the knowing use of false testimony. But it did call the court's attention to “two different statements” made at the trial by the prosecution’s chief witness, Fred T. Donner, and to the “methods . . . used to obtain” this change in testimony. There was no indication given as to what those “methods” were. Donner’s testimony at the trial was attached as an exhibit, testimony which revealed that Donner had gone to the office of the District Attorney and talked to him and his assistant during the interval between the allegedly conflicting statements.
The District Court then appointed counsel for petitioner at his request. Several months later, when the matter came on for determination, the court entered an order denying the application for a writ of habeas corpus and dismissing the petition. No hearing was held, the order being entered solely on the basis of the pleadings. And no findings of fact or conclusions of law were made. Nor was an opinion written. Petitioner thereafter proceeded pro se. Among his various legal maneuvers, he moved for a rehearing. He stated, as grounds for the motion, that the court erred in refusing to allow him to appear and testify personally before entering the order and that the court-appointed attorney “blocked your petitioner from filing an amended petition to include additional points so that they could be reviewed on appeal.” This motion was denied.
Petitioner prepared his own appeal to the Circuit Court of Appeals. Among the points upon which he stated he intended to rely was the claim that he had been denied “a fair and impartial trial” by Donner’s change in testimony after talking with the District Attorney. But the Circuit Court of Appeals, in affirming the District Court’s disposition of the habeas corpus petition, made no reference to this point; its opinion was devoted exclusively to the matters raised in the original petition. Price v. Johnston, 125 F. 2d 806.
Included in the numerous claims in his attempt to secure a writ of certiorari in this Court was the reiteration that Donner’s change in testimony deprived him of a fair and impartial trial. According to his written argument, “if this was not perjured it was base contradictory evidence for after this witness had completed all his evidence he was then taken into the private chambers of the United States Attorney . . . and there was instructed as to what to say, for he came from said office and was recalled to the stand at this second setting he rebutted all his prior testimony. This must be either classed as a conspiracy forcing a witness to change his testimony either of which surely would not be giving the appellant the fair and impartial trial to which he is entitled.” The Government’s memorandum in opposition dealt with this contention in a footnote. It was there said that petitioner’s claim “is refuted by the excerpt from the transcript of the proceedings at the trial introduced as part of petitioner’s pleadings. . . . The witness did not rebut his prior testimony but merely supplemented it with a few more details and he affirmatively stated that his discussion with the prosecutor did not assist him in his subsequent testimony.” This Court denied the petition for a writ of cer-tiorari. Price v. Johnston, 316 U. S. 677; rehearing denied, 316 U. S. 712.
2. In 1942, several months after the foregoing action by this Court, petitioner prepared and filed in the District Court a second petition for a writ of habeas corpus. In this petition he sought release on the same grounds set forth in his first petition as well as on two principal additional grounds. The two new claims were that petitioner’s counsel had been absent from the courtroom dur-. ing an important part of the trial and that petitioner had not had counsel at the preliminary hearing before the United States Commissioner. The petition, as amended, contained no allegation that false testimony had been knowingly used at the trial; nor did it refer in any way to Donner’s allegedly inconsistent testimony. Moreover, no mention of such matters was made by petitioner in his testimony at the hearing on the writ of habeas corpus.
The District Court, at the close of the hearing, discharged the writ. Its findings of fact and conclusions of law were subsequently entered and were silent as to any question relating to the knowing use of false testimony. The District Court’s action was affirmed on appeal, the opinion of the Circuit Court of Appeals being devoted to the matters decided by the District Court. Price v. Johnston, 144 F. 2d 260. This Court then denied a petition for certiorari, a petition which presented no issues differing from those raised in the lower courts. Price v. Johnston, 323 U. S. 789; rehearing denied, 323 U. S. 819.
3. Petitioner’s third petition for a writ of habeas corpus was denied by the District Court on August 22, 1945. This denial was based on the ground that the issues raised were known to petitioner when he filed the earlier petitions, making the third petition an abusive use of the writ of habeas corpus. Price v. Johnston, 61 F. Supp. 995. Leave to appeal was denied. It is not evident, however, what the issues were that petitioner did raise in this proceeding.
4. On January 2, 1946, petitioner filed his fourth application for a writ of habeas corpus. He alleged that he had been denied a fair and impartial trial in that, on the trial for bank robbery, the jury was confused by the presentation of evidence to show perjury before a notary public, that the court was not justified in imposing a general sentence on the four counts of the indictment, and that the fourth count did not allege an offense. After an order to show cause was issued, petitioner amended his petition to allege “That the government knowingly employed false testimony on the trial, to obtain the conviction.”
The respondent warden, through the United States Attorney, thereupon filed his return to the order to show cause. This return did not deny the allegation that the Government knowingly employed false testimony at the trial. Nor did it question the sufficiency of the allegation or the absence of supporting facts. It simply incorporated by reference the entire record in the three prior habeas corpus proceedings and asked that the fourth petition be' denied on the basis of the District Court’s opinion denying the third application. Petitioner’s traverse stated that the earlier petitions did not contain some of the points presented in the fourth petition. It repeated the allegations in the original petition, though it merely incorporated by reference the allegation of the amended petition that the prosecutor knowingly used false testimony.
The District Court denied the fourth petition without a hearing and without opinion. It is difficult to discover from such action the precise basis of the District Court’s dismissal of the allegation in question. But because of the nature of the warden’s return, we suspect that the court thought that the matter was known to petitioner at the time of filing the first petition and should have been urged at that time. There is nothing whatever to indicate that the dismissal stemmed from the court’s belief that the allegation was insufficient on its face or that it was obviously without merit.
On appeal, a panel of the Ninth Circuit Court of Appeals ordered up the original files in petitioner’s three previous applications and directed that petitioner be brought before the court for the argument of his appeal. After the argument, the submission of the cause was set aside and the case was assigned for hearing before the court en banc. Petitioner then moved the court en banc for an order directing his appearance for the reargument. This motion was denied on January 6, 1947. In its written opinion, a majority of the court held that circuit courts of appeals are without power to order the production of a prisoner for the argument of his appeal in person. One judge expressed the view that the court had such power, but concurred in the denial of the motion as a matter of discretion. Two judges dissented, stating that there was power to grant the requested relief; but they did not reach the question of the propriety of exercising that power in this case. 159 F. 2d 234.
The appeal was then considered on the merits on briefs filed by petitioner and respondent and on oral argument by an Assistant United States Attorney. Petitioner was unrepresented at the oral argument. On May 5, 1947, the order of the District Court denying the fourth petition without a hearing was affirmed, two judges dissenting in separate opinions. 161 F. 2d 705.
The majority opinion of the Circuit Court of Appeals pointed out that, by amending his fourth petition to allege “that the government knowingly employed false testimony on the trial, to obtain conviction,” petitioner had interposed a wholly new ground for discharge. But the specific circumstances of this claim had not been developed in the District Court. The opinion accordingly treated the allegation as though it had incorporated petitioner’s explanatory statement in his appellate brief that the United States Attorney, in the course of the trial, “did take the one and only witness, Donner, that testified that there had been a crime committed, from the witness stand after he had testified that he could not see any guns or pistols during the robbery, to the district attorney’s office, and talked about the evidence and put the witness Donner back on the witness stand to testify that he did see the pistols, and described them, when he could not do so at first.”
So construing the allegation, the court then said: “The records in these several proceedings disclose that throughout his trial appellant was represented by counsel of his own choosing. And since he was himself present at all times he could hardly have been unaware of the described incident or of its implications, nor does he make any such claim. On the face of his showing it is apparent he knew as much about the misconduct at the time it is said to have occurred as he knows now. Yet no reason or excuse is attempted to be advanced for his failure to set it up in one or the other of his prior petitions.” 161 F. 2d at 706-707. And it was further stated that “Where there have been repeated petitions with an apparent husbanding of grounds the onus may properly be cast on the applicant of satisfying the court that an abusive use is not being made of the writ.” Id., at 707. Since petitioner had given no valid excuse for failing to present earlier the allegation in question, the conclusion was reached that the District Court did not abuse its discretion in denying the fourth petition without a hearing. Reference was made in this respect to Salinger v. Loisel, 265 U. S. 224, and Wong Doo v. United States, 265 U. S. 239.
We issued a writ of certiorari to review the important issues thus raised in the two opinions of the Circuit Court of Appeals. And on petitioner’s motion, we appointed a member of the bar of this Court to serve as his counsel before us.
I.
We hold that power is resident in a circuit court of appeals to command that a prisoner be brought before it so that he may argue his own appeal in a case involving his life or liberty. That power, which may be exercised at the sound discretion of the court, grows out of the portion of § 262 of the Judicial Code, 28 U. S. C. § 377, which provides that “The Supreme Court, the circuit courts of appeals, and the district courts shall have power to issue all writs not specifically provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the usages and principles of law.”
An order requiring the presence of a prisoner before a circuit court of appeals to argue his own appeal is one in the nature of a writ of habeas corpus. As such, it clearly falls within the scope of § 262. Basic to the power of a circuit court of appeals to issue a writ of habeas corpus under that section, of course, is the pendency of a proceeding of an appellate nature to which the contemplated writ is auxiliary. Whitney v. Dick, 202 U. S. 132. The writ cannot be issued by that court as an independent and original proceeding; it can only issue where it may be necessary to the complete exercise of an appellate jurisdiction already existing. Since the occasion for demanding the presence of a prisoner at an oral argument would arise only where there was an appeal already pending before the court, a writ compelling his presence satisfies this basic requirement of § 262.
Moreover, a writ of habeas corpus of this nature can on occasion be “necessary” for the exercise of appellate jurisdiction so as to be authorized by § 262. We have refused to interpret that section to mean that a circuit court of appeals can issue a habeas corpus writ only if “necessary” in the sense that the court could not otherwise physically discharge its appellate duties. Adams v. United States ex rel. McCann, 317 U. S. 269, 273. Rather, § 262 has been read so that the writ may be issued where its use is calculated, in the sound judgment of the circuit court of appeals, to achieve the ends of justice entrusted to it. In other words, the writ is available in those exceptional cases “where, because of special circumstances, its use as an aid to an appeal over which the court has jurisdiction may fairly be said to be reasonably necessary in the interest of justice.” Id., at 274.
Exceptional situations may arise where a circuit court of appeals might fairly conclude that oral argument by a prisoner in person is “reasonably necessary in the interest of justice.” True, an appeal can always be submitted on written briefs. But oral argument, while not indispensable, is frequently if not usually desired by the parties. And there are occasions when a court deems it essential that oral argument be had; indeed, a court order or request to that effect may be necessary where the parties have previously indicated a willingness to forego the privilege. In such situations where oral argument is slated to take place, fairness and orderly appellate procedure demand that both parties be accorded an equal opportunity to participate in the argument either through counsel or in person. The difficulty, of course, arises when one of the parties is a prisoner who has no lawyer and who desires that none be appointed to represent him, being of the belief that the case is of such a nature that only he himself can adequately discuss the facts and issues. Since ordinarily the court cannot designate counsel for the prisoner without his consent, an arrangement that is made for his presence and participation at the oral argument can be said to be “reasonably necessary in the interest of justice.” Otherwise the court loses the benefits of listening to his contentions, hearing only the arguments of government counsel. Conceivably, the prisoner’s case might be unduly prejudiced by such a one-sided debate. That the argument orally advanced by the prisoner may in fact be less than enlightening to the court does not detract from the fairness or the justness of giving him the opportunity to appear and argue. Thus if a circuit court of appeals is satisfied in other respects that the prisoner should be produced at the argument, a writ designed to effectuate that production is plainly “necessary” within the contemplation of § 262.
It remains to be seen whether a writ of habeas corpus for the purpose under consideration is “agreeable to the usages and principles of law,” as that phrase is used in § 262. At common law there were several variants of the writ of habeas corpus. See 3 Blackstone’s Commentaries *129-132; Ex parte Bollman, 4 Cranch 75, 97-98. None of them, however, seems to have been devised for the particular purpose of producing a prisoner to argue his own appeal. Nor does it appear that the courts of England have used or developed the habeas corpus writ for this purpose.
However, we do not conceive that a circuit court of appeals, in issuing a writ of habeas corpus under § 262 of the Judicial Code, is necessarily confined to the precise forms of that writ in vogue at the common law or in the English judicial system. Section 262 says that the writ must be agreeable to the usages and principles of “law,” a term which is unlimited by the common law or the English law. And since “law” is not a static concept, but expands and develops as new problems arise, we do not believe that the forms of the habeas corpus writ authorized by § 262 are only those recognized in this country in 1789, when the original Judiciary Act containing the substance of this section came into existence. In short, we do not read § 262 as an ossification of the practice and procedure of more than a century and a half ago. Rather it is a legislatively approved source of procedural instruments designed to achieve “the rational ends of law.” Adams v. United States ex rel. McCann, supra, 273.
We accordingly look to the usages and principles which have attached themselves to the writ of habeas corpus down through the years to the present time. The historic and great usage of the writ, regardless of its particular form, is to produce the body of a person before a court for whatever purpose might be essential to the proper disposition of a cause. The most important result of such usage has been to afford a swift and imperative remedy in all cases of illegal restraint upon personal liberty. With that usage, a writ for the purpose under consideration is entirely agreeable and consistent. To order the production of a prisoner before an appellate court to argue his own appeal in a case in which he alleges that he is illegally imprisoned is to perform an act which is intimately and necessarily related to the presentation of the merits of the prisoner’s complaint, a presentation which is essential if relief from the allegedly illegal imprisonment is to be secured. Such production, as we have seen, may in some circumstances be essential to the proper disposition of the case on appeal. Where that is the case, a writ in the nature of habeas corpus to achieve that production is agreeable to the usages of law.
Moreover, the principle has developed that the writ of habeas corpus should be left sufficiently elastic so that a court may, in the exercise of its proper jurisdiction, deal effectively with any and all forms of illegal restraint. The rigidity which is appropriate to ordinary jurisdictional doctrines has not been applied to this writ. The fluidity of the writ is especially desirable in the setting of a statute where Congress has given circuit courts of appeals the power to issue the writ in aid of their appellate jurisdiction wherever “reasonably necessary in the interest of justice.” The ordinary forms and purposes of the writ may often have little relation to the necessities of the appellate jurisdiction of those courts. Justice may on occasion require the use of a variation or a modification of an established writ. It thus becomes essential not to limit appellate courts to the ordinary forms and purposes of legal process. Congress has said as much by the very breadth of its language in § 262. It follows that we should not write in limitations which Congress did not see fit to make.
Formulation of the limitations of § 262 which do exist must await the necessities of appellate jurisdiction in particular cases. It is enough for the present to note that where those necessities are such as to require the presence of a prisoner to argue his own appeal, the issuance of a writ of habeas corpus for that purpose is “agreeable to the usages and principles of law” so as to be sanctioned by § 262. Only in that way can we give substance in this case to our previous statement that “dry formalism should not sterilize procedural resources which Congress has made available to the federal courts.” Adams v. United States ex rel. McCann, supra, 274.
We therefore conclude that circuit courts of appeals do have the power under § 262 of the Judicial Code to issue an order in the nature of a writ of habeas corpus commanding that a prisoner be brought to the courtroom to argue his own appeal. That power has heretofore been assumed. Schwab v. Berggren, 143 U. S. 442, 449; and see Goldsmith v. Sanford, 132 F. 2d 126, 127; Donnelly v. State, 26 N. J. Law 463, 472, affirmed, 26 N. J. Law 601. We now translate that assumption into an explicit holding.
In so deciding, however, we emphasize that the power of a circuit court of appeals to issue such a writ is discretionary. And this discretion is to be exercised with the best interests of both the prisoner and the government in mind. If it is apparent that the request of the prisoner to argue personally reflects something more than a mere desire to be freed temporarily from the confines of the prison, that he is capable of conducting an intelligent and responsible argument, and that his presence in the courtroom may be secured without undue inconvenience or danger, the court would be justified in issuing the writ. But if any of those factors were found to be negative, the court might well decline to order the prisoner to be produced. Section 262, in other words, does not justify an indiscriminate opening of the prison gates to allow all those who so desire to argue their own appeals.
The discretionary nature of the power in question grows out of the fact that a prisoner has no absolute right to argue his own appeal or even to be present at the proceedings in an appellate court. Schwab v. Berggren, supra. The absence of that right is in sharp contrast to his constitutional prerogative of being present in person at each significant stage of a felony prosecution, see Hopt v. Utah, 110 U. S. 574, and Snyder v. Massachusetts, 291 U. S. 97, and to his recognized privilege of conducting his own defense at the trial. Lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system. Among those so limited is the otherwise unqualified right given by § 272 of the Judicial Code, 28 U. S. C. § 394, to parties in all the courts of the United States to “plead and manage their own causes personally.” To the extent that this section permits parties to conduct their own oral arguments before appellate courts, it must be modified in its application to prisoners. Oral argument on appeal is not an essential ingredient of due process and it may be circumscribed as to prisoners where reasonable necessity so dictates.
A prisoner’s right to participate in oral argument on appeal is accordingly to be determined by the exercise of the discretionary power of the circuit court of appeals under § 262. The court below erred in holding that no such power existed. But since the case must go back to the District Court for further proceedings, it is unnecessary here to remand the case to the Circuit Court of Appeals to exercise the discretionary power which rightfully belongs to it.
II.
We hold that petitioner’s fourth petition for a writ of habeas corpus, alleging the knowing use of false testimony to obtain his conviction, was improperly dismissed by the District Court.
The Government argues before us that the allegation in question, as presented to the District Court, is a mere allegation of law unsupported by reference to any specific facts. As such, the allegation is said to be fatally deficient and to warrant summary denial. Reference is made in this respect to Cuddy, Petitioner, 131 U. S. 280, 286; Kohl v. Lehlback, 160 U. S. 293, 299; United States v. Ju Toy, 198 U. S. 253, 261; Collins v. McDonald, 258 U. S. 416, 420-421; Hodge v. Huff, 78 U. S. App. D. C. 329, 331, 140 F. 2d 686, 688; and Long v. Benson, 140 F. 2d 195, 196.
But this proposition was apparently not presented to or passed upon by the District Court; nor was it determined by the Circuit Court of Appeals. The sole complaint made by the Government in the lower courts, and the main one raised before us, relates to petitioner’s alleged abuse of the writ of habeas corpus. A consideration of that factor is preliminary as well as collateral to a decision as to the sufficiency or merits of the allegation itself. We accordingly address ourselves solely to the alleged abuse of the writ, leaving the Government free to press its objections to the adequacy of the allegation after the proceedings are renewed before the District Court.
The Circuit Court of Appeals, as we have noted, treated the bare allegation of the knowing use of false testimony as having incorporated the explanatory statement in petitioner’s appellate brief. Whether such an expanded allegation states a sufficiently specific violation of due process within the meaning of Mooney v. Holohan, 294 U. S. 103, is a question which we need not now answer. Nor is it necessary here to decide the propriety of treating a statement in an appellate brief as an amplification of an allegation in the trial court, a practice to which the Government makes objection.
But in dealing with the alleged abuse of the writ of habeas corpus, we find it undenied that the explanatory statement illuminates the allegation made in the District Court. The statement makes clear the incident to which petitioner had reference when he alleged the knowing use of false testimony. In other words, the essence of petitioner’s charge is that the prosecution brought undue pressure to bear on the Government’s chief witness, Donner, to change his testimony and that this altered testimony was knowingly used to obtain petitioner’s conviction. Cf. Pyle v. Kansas, 317 U. S. 213, 215-216. The issue now is whether petitioner has so abused the writ of habeas corpus as to bar a consideration of this allegation, whether it be general or specific in form or whether it be supported or unsupported by factual references.
From the facts which we have previously detailed it is evident that this allegation was not properly raised prior to the amendment of the fourth petition. None of the three prior petitions had made this point. In the first proceeding, it is true, petitioner’s traverse to the warden’s return called the court’s attention to the differing statements allegedly made by Donner and claimed that certain undefined “methods” had been used to obtain the change in testimony. Petitioner was apparently trying to raise the due process issue formulated in Mooney v. Holohan, supra. But his effort was without success. .A mere claim that a witness gave inconsistent testimony is not enough to charge the prosecution’s knowing use of false testimony; it may well be that the witness’ subsequent statements were true, in which event the claim of inconsistency is not a constitutional objection. Since this due process issue was not properly raised, we cannot assume that the District Court’s action in dismissing the first petition on the pleadings was a determination against petitioner on the merits of the issue.
Further elaboration of the Donner incident was made by petitioner in the course of seeking review of the District Court’s action on the first petition. Both in the Circuit Court of Appeals and in this Court he claimed that he had been denied a fair and impartial trial by Donner’s alleged shift in testimony; and in this Court he stated that there had been a conspiracy to force Donner to change his story. It is noteworthy that the Government did not see fit to deny or controvert petitioner’s claim until the case reached this Court. We need not decide whether the due process issue was properly raised in the review proceedings, inasmuch as petitioner’s failure to make a proper allegation in that respect in the District Court foreclosed any determination of the matter. And as we have noted, the second and third petitions for habeas corpus were completely silent as to this due process issue.
There has thus been no proper occasion prior to the fourth proceeding for a hearing and determination by the District Court as to the allegation that the prosecution knowingly used false testimony to obtain a conviction. That fact renders inapplicable Salinger v. Loisel, 265 U. S. 224, upon which reliance was placed by the Circuit Court of Appeals. It was there held that, while habeas corpus proceedings are free from the res judicata principle, a prior refusal to discharge the prisoner is not without bearing or weight when a later habeas corpus application raising the same issues is considered. But here the three prior applications did not raise the issue now under consideration and the three prior refusals to discharge petitioner can have no bearing or weight on the disposition to be made of the new matter raised in the fourth petition. Waley v. Johnston, 316 U. S. 101.
Likewise irrelevant to the instant proceeding is Wong Doo v. United States, 265 U. S. 239. In that case, the petitioner set forth two grounds for discharge in his first petition. At the hearing, he offered no proof in support of the second ground. The .petition was dismissed on the theory that the first ground was not good in law. A subsequent habeas corpus petition relied entirely on the second ground alleged in the first petition. This Court held that the petitioner had had full opportunity to offer proof as to the second point at the hearing on the first petition, proof which was accessible at all times. If he was intending to rely on that ground, good faith required that he produce his proof at the first hearing. “To reserve the proof for use in attempting to support a later petition, if the first failed, was to make an abusive use of the writ of habeas corpus. No reason for not presenting the proof at the outset is offered.” 265 U. S. at 241.
The Wong Doo case thus involved a situation where one has properly raised an issue in an earlier petition, has received a full opportunity at a hearing to present evidence on the point, and has refused to avail oneself of that opportunity. The distinguishing features in the instant case are obvious.
There is one factor in this case that might be thought to justify the dismissal of the fourth petition as an abusive use of the habeas corpus writ. That factor is that petitioner had prior knowledge of the Donner incident which forms the basis, at least in part, of the due process allegation now being made. The record in the first proceeding shows that petitioner’s own lawyer elicited the information from Donner that he had talked with the prosecuting lawyers during the interlude between the allegedly conflicting statements. And petitioner made reference to that information during the course of the first habeas corpus proceeding in the manner heretofore described. Petitioner now utilizes that same information in alleging that the prosecution made a knowing use of false testimony.
In the first place, however, we cannot assume that petitioner has acquired no new or additional information since the time of the trial or the first habeas corpus proceeding that might indicate fraudulent conduct on the part of the prosecuting attorneys. As Judge Denman stated in his dissenting opinion below, 161 F. 2d at 708-709: “The gravamen of the misconduct charged is not the fact that the witness changed his testimony but that the prosecuting attorney knowingly caused the witness to give the false testimony. All the accused and his attorney knew at the trial was that the single prosecuting witness changed his testimony. Obviously this in itself does not warrant a charge of fraud. That it was fraudulently done by persuasion of the prosecuting attorney could only have been learned after conviction and after the convicted man was in the penitentiary.”
Whether petitioner does or does not have any new information is a matter unrevealed by anything before us or before the Circuit Court of Appeals. It is a matter which should be determined in the first instance by the District Court. And it is one on which petitioner is entitled to be heard either at a hearing or through an amendment or elaboration of his pleadings. Appellate courts cannot make factual determinations which may be decisive of vital rights where the crucial facts have not been developed. Cf. Kennedy v. Silas Mason Co., 334 U. S. 249.
In the second place, even if it is found that petitioner did have prior knowledge of all the facts concerning the allegation in question, it does not necessarily follow that the fourth petition should be dismissed without further opportunity to amend the pleadings or without holding a hearing. If called upon, petitioner may be able to present adequate reasons for not making the allegation earlier, reasons which make it fair and just for the trial court to overlook the delay. The primary purpose of a habeas corpus proceeding is to make certain that a man is not unjustly imprisoned. And if for some justifiable reason he was previously unable to assert his rights or was unaware of the significance of relevant facts, it is neither necessary nor reasonable to deny him all opportunity of obtaining judicial relief.
Moreover, we do not believe that the burden was on the petitioner of affirmatively alleging in the first instance that he had acquired new information or that he had adequate reasons for not raising sooner the issue of the knowing use of false testimony. It was enough if he presented an allegation and supporting facts which, if borne out by proof, would entitle him to relief. Prisoners are often unlearned in the law and unfamiliar with the complicated rules of pleading. Since they act so often as their own counsel in habeas corpus proceedings, we cannot impose on them the same high standards of the legal art which we might place on the members of the legal profession. Especially is this true in a case like this where the imposition of those standards would have a retroactive and prejudicial effect on the prisoner’s inartistically drawn petition. Cf. Holiday v. Johnston, 313 U. S. 342, 350; Pyle v. Kansas, supra, 216; Tomkins v. Missouri, 323 U. S. 485, 487; Rice v. Olson, 324 U. S. 786, 791-792.
And so if the Government chooses not to deny the allegation or to question its sufficiency and desires instead to claim that the prisoner has abused the writ of habeas corpus, it rests with the Government to make that claim with clarity and particularity in its return to the order to show cause. That is not an intolerable burden. The Government is usually well acquainted with the facts that are necessary to make
Question: What is the state of the court in which the case originated?
01. Alabama
02. Alaska
03. American Samoa
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. District of Columbia
11. Federated States of Micronesia
12. Florida
13. Georgia
14. Guam
15. Hawaii
16. Idaho
17. Illinois
18. Indiana
19. Iowa
20. Kansas
21. Kentucky
22. Louisiana
23. Maine
24. Marshall Islands
25. Maryland
26. Massachusetts
27. Michigan
28. Minnesota
29. Mississippi
30. Missouri
31. Montana
32. Nebraska
33. Nevada
34. New Hampshire
35. New Jersey
36. New Mexico
37. New York
38. North Carolina
39. North Dakota
40. Northern Mariana Islands
41. Ohio
42. Oklahoma
43. Oregon
44. Palau
45. Pennsylvania
46. Puerto Rico
47. Rhode Island
48. South Carolina
49. South Dakota
50. Tennessee
51. Texas
52. Utah
53. Vermont
54. Virgin Islands
55. Virginia
56. Washington
57. West Virginia
58. Wisconsin
59. Wyoming
60. United States
61. Interstate Compact
62. Philippines
63. Indian
64. Dakota
Answer:
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songer_genresp2
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H
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the second listed respondent. If there are more than two respondents and at least one of the additional respondents has a different general category from the first respondent, then consider the first respondent with a different general category to be the second respondent.
COMMISSIONER OF INTERNAL REVENUE v. BRONSON et al.
Circuit Court of Appeals, Eighth Circuit.
March 25, 1929.
No. 8165.
Morton P. Fisher, Sp. Asst, to Atty. Gen. (Mabel Walker Willebrandt, Asst. Atty. Gen., Sewall Key, Sp. Asst. to Atty. Gen., C. M. Charest, General Counsel, Bureau of Internal Revenue, and Irwin R. Blaisdell, Sp. Atty., Bureau of Internal Revenue, both of Washington, D. C., on the brief), for appellant.
Franeis D. Butler, of St. Paul, Minn. (Doherty, Rumble, Bunn & Butler, of St. Paul, Minn., on the brief), for appellees.
Before VAN VALKENBURGH and BOOTH, Circuit Judges, and MUNGER, District Judge.
BOOTH, Circuit Judge.
This is a petition for review of an order of the Board of Tax Appeals redetermining the deficiency in the federal estate tax of the estate of C. N. Nelson, deceased. The Commissioner of Internal Revenue found a deficiency in the tax of $12,328.75. The Board of Tax Appeals redetermined the deficiency to be $3,928.75. The difference in amount is the tax attributable to $60,000 deductions which are claimed from the value of the gross estate. The deductions were disallowed by the Commissioner, but were allowed by the Board of Tax Appeals.
The character of the claimed deductions will appear from the following undisputed facts found by the Board of Tax Appeals. On or about August 9, 1917, C. N. Nelson transferred practically all of his property, consisting of 10,000 shares of stock in C. N. Nelson, Inc., of the approximate value of $3,000,000, to the two appellees herein and one other person, as trustees. The trust deed provided for the care of the trust estate; distribution of the income to Nelson during his life,' and to certain named persons thereafter; and final disposition of the corpus of the estate upon the death of the last of certain named persons. The trustees were authorized to sell and to reinvest the proceeds. The trust deed reserved to Nelson power to alter or revoke the trust deed at will. Coincident with the execution of the trust deed, Nelson executed his last will, and incorporated the trust deed therein. The provisions in the will for the disposition of the property covered by the trust deed were the same as in that instrument. The same three parties who were named as trustees in the deed of trust were named as executors in the will. Three amendments were made to the deed of trust on October 15, 1917, December 23, 1919 (re-executed May 10, 1920), and June 17,1921, respectively; and on the same dates codicils to the will were executed for the purpose of incorporating therein the amendments to the deed of trust. On June 22, 1920, also, an amendment was made to the deed of trust. It contained the following provision: •
“Now, Therefore, I, the said Charles N. Nelson, do hereby revoke the appointment of the said Robert S. Davis, James D. Bronson and George H. Prince, as trustees of said trusts, and do hereby nominate and appoint •Bankers Trust Company of New York, of the State of New York, sole trustee of said trusts, to hold said office until my death. Upon my death, the said Bankers Trust Company shall cease to hold the office of trustee, and I hereby nominate and appoint the said Robert S. Davis, James D. Bronson and George H. Prince as trustees of said trusts from and after the date of my death. The property now forming the said trust estate shall be forthwith transferred by the present trustees to the new trustee herein named, and, upon my death, the new trustee or its successors shall forthwith transfer the trust estate to said Robert S. Davis, James D. Bronson and George H. Prince, their survivor or survivors, successor or successors, as the case may be, as Trustees.”
Nelson died May 24, 1923. The three trustees came into immediate possession of the trust estate, amounting approximately to $3,000,000. Although the same three parties were named as executors in the will, they decided not to probate the will. As trustees, they proceeded to marshal the assets of the estate, to determine and pay debts and charges. They inventoried and valued the estate, which was a complicated proceeding. They prepared federal income, and federal estate tax returns, and New York transfer tax returns, and paid such taxes. One of the trustees, in order to fulfill his duties as such, was obliged to rearrange his personal business affairs for the period of a year. The three trustees performed the above-mentioned services and such other services as were required under the trust deed and will within a period of two years after the death of Nelson. They allowed and paid themselves as compensation $10,000 each, or a total of $30,-000. These amounts were a reasonable compensation. They also allowed and paid for services of attorneys employed by them in the aforementioned matters the sum of $30,-000. This amount constituted reasonable fees. These amounts were paid May 19,1924. Thereafter the three trustees continued to hold the trust estate, and received $500 per annum each as compensation.
On these findings the Board of Tax Appeals held in its decision promulgated May 27, 1927, that the two items of $30,000, making a total of $60,000, were properly deductible from the value of the gross estate in determining the value of the net estate for the purpose of the federal estate tax.
The correctness of this holding is the question involved in the present petition for review.
The Revenue Act of 1921, §§ 401 and 403 (42 Stat. 277, 279), so far as here material, read as follows:
“Sec. 401. That, in lieu of the tax imposed by Title IV of the Revenue Act of 1918, a tax equal to the sum of the following percentages of the value of the net estate (determined as provided in section 403) is hereby imposed upon the transfer of the net estate of every decedent dying after the passage of this act, whether a resident or nonresident of the United States. * * * ”
“Sec. 403. That for the purpose of the tax the value of the net estate shall be determined—
“(a) In the ease of a resident, by deducting from the value of the gross estate—
“(1) Such amounts for funeral expenses, administration expenses, claims against the estate, unpaid mortgages upon, or any indebtedness in respect to, property (except, in the ease of a resident decedent, where such property is not situated in the United States), losses incurred during the settlement of the estate arising from fires, storms, shipwreck, or other casualty, or from theft, when such losses are not compensated for by insurance or otherwise, and such amounts reasonably required and actually expended for the support during the settlement of the estate of those dependent upon the decedent, as are allowed by the laws of the jurisdiction, whether within or without the United States, under which the estate is being administered, but not including any income taxes upon income received after the death of the decedent, or any estate, succession, legacy, or inheritance taxes. * * * ”
The position of appellant is that the amounts in question were not allowable as deductions from the value of the gross estate, because the “administration expenses” mentioned in section 403 are limited to those attendant upon the settlement of an estate by the legal representative, and that the expenses here in question were not incurred by a legal representative, inasmuch as the will of C. N. Nelson was never probated, and no executors thereof were appointed by any probate court. In support of this position appellant relies upon Regulations of the Treasury Department, No. 63, article 35 — Administration Expenses — reading as follows:
“The amounts deductible from the gross estate as ‘administration expenses’ are such expenses as are actually and necessarily incurred in the administration of the estate; that is, in the collection of assets, payment of debts, and distribution among the persons entitled. The expenses contemplated in the law are such only as attend the settlement of an estate by the legal representative preliminary to the transfer of the property to .individual beneficiaries or to a trustee, whether such trustee is the executor or some other person. Expenditures not essential to the proper settlement of the estate, but incurred for the individual benefit of the heirs, legatees, or devisees, may not be taken as deductions. Administration expenses include (1) executor’s commissions; (2) attorney’s fees; (3) miscellaneous expenses. Each of these classes is considered separately.”
Appellant also relies upon the following language in the case of Dodd v. Anderson, 197 N. Y. 466, 470, 90 N. E. 1137, 1138 (27 L. R. A. [N. S.] 336, 18 Ann. Cas. 738):
“1. There can be no executor where there is no will. 2. Unless a will is admitted to probate there can be no letters testamentary. 3. Until letters testamentary or of administration are issued upon the estate of a decedent there is no legal representative of the estate. 4. Although a person is nominated as executor in a paper purporting to be»a will, he is under no legal obligation to accept.”
The rulings in Dodd v. Anderson have, in our opinion, no application to the present case. In that case a volunteer sought to have a purported will established, and himself appointed exeeutor. The purported will was rejected. The volunteer sought compensation for his efforts in trying to establish the will. His claim was denied. The court held that administration expenses did not inelude expenses and compensation in trying to establish an invalid will.
The Board of Tax Appeals, in commenting on article 35, Regulations 63, above quoted, said:
“We think that in so far as this regulation undertakes to restrict the allowance of administration expenses to those items which have been fixed and awarded by a decree of a proper court, it is a too narrow construction of the Act and should not be followed.”
We are inclined to agree with this criticism. The language of section 403 (a) (1) of the Revenue Act of 1921 is broad, and we think should receive a fairly liberal construction. It was the evident purpose of Congress that the gross estate should have deducted from it numerous, ordinary charges and expenses incident ,to the administration and settlement of the estate. The items are not specifically named; the amounts are not specifically fixed, nor are they left to be determined by any named court, but are to be as the provision reads, “Such amounts * * * as are allowed by the laws of the jurisdiction, whether within or without the United States, under which the estate is being administered.” The words “within or without the United States” are significant as recognizing that the estate might be administered anywhere in the world, even in countries where administration of estates is had otherwise than through courts, if any such countries exist. Furthermore, the Revenue Act of 1921 itself expressly recognizes that estates may be “administered” within the meaning of the act and a return made for the purpose of the federal estate tax and deductions allowed under section 403, all without any proceedings in a probate court or other court of like jurisdiction. We say this because in section 400 of the act (42 Stat. 277) the term “executor” includes (where there is no executor or administrator) “any person in actual or constructive possession of any property of the decedent.” By sections 404, 405, 406, 407 (42 Stat. 281), the possibility is recognized that the estate may be “administered” by an ■ “executor” of the broad definition, a return made by such exeeutor, deductions allowed to him, payment of the estate tax by him, and a receipt for the ■ tax given to him. All of these sections, when read in connection with section 403(a)(1), show that the words “administration expenses” are used in a broad sense, and are not limited to such expenses as shall be allowed by a probate court or other court of like jurisdiction. ■
It is urged by appellant that the construction of section 403 (a) (1) of the Revenue Act of 1921, as set forth in Treasury Regulations 63, article 35, and now contended for, has received recognition and approval by Congress in the following way: That Congress has re-enacted without material change the provisions contained in section 403(a)(1) of the Revenue Act of 1921 in the later Revenue Acts'of 1924, § 303(a) (1), 43 Stat. 305, and 1926, § 303(a)(1); 26 USCA § 1095(a)(1), and that no change was made by the Revenue Act of 1928; 26 USCA § 2001 et seq.; that during all this time Treasury Regulations 63, article 35, or its exact equivalent, had been promulgated and was in effect; that Congress has thus given implied sanction to the construction adopted by the Treasury Department.
The force of this argument drawn from departmental construction is greatly weakened, if not entirely destroyed, by the fact that the Board of Tax Appeals placed its construction upon section 403(a) (1) in the instant case on May 27, 1927. A year later, on May 29, 1928, Congress, with a presumed knowledge of such decision of the Board of Tax Appeals, passed the Revenue Act of 1928, but did not see fit to change the wording of section 303(a)(1) of the Revenue Act of 1926, formerly section 403(a)(1) of the Revenue Act of 1921. Congress has thus, so it might be argued, sanctioned and approved the construction of the statute adopted by the Board of Tax Appeals.
Furthermore, it has been held by the Board of Tax Appeals in numerous cases, beginning with Appeal of Samuel E. A. Stern et al., Executors, 2 B. T. A. 102, decided June 19, 1925, that administration expenses, such as executor’s commissions, are deductible under section 403 (a) (1) of the Revenue Act of 1921 and similar provisions in revenue acts of other years, before they have been paid or allowed by any order of court, provided such administration expenses are reasonably allowable by the laws of the jurisdiction. See, also, Appeal of Henry Eiffel, 3 B. T. A. 436; Estate of Jacob Voelbel, 7 B. T. A. 276. All of these eases were decided prior to the passage of the Revenue Act of 1928, yet Congress did not see fit to alter the wording of the provision relative to deductions of administration expenses.
Our conclusion is that the construction placed upon section 403(a)(1) of the Revenue Act of 1921 by the Board of Tax Appeals in the instant case was correct.
With this construction of the statute in mind we turn again to the facts in the present ease. The services performed by the trustees were such as are usually performed by an executor or administrator. The acts of the trustees were necessary and valid and authorized by the deed of trust. The attorneys were employed by the trustees to aid in performance of these usual and necessary acts. The sums paid to the trustees and to the attorneys were reasonable in amount.
Section 222 of the New York Surrogate’s Court Act provides:
“An executor, administrator, guardian or testamentary trustee may pay from the funds or estate in his hands from time to time, as shall be necessary, his legal and proper expenses of administration necessarily incurred by him, including the reasonable expense of obtaining and continuing his bond and the reasonable counsel fees necessarily incurred in the administration of the estate. Such expenses and disbursements shall be set forth in his account when filed, and settled by the surrogate.”
Section 281 of the same act provides:
“Upon the disposition of real property of a decedent, as prescribed in this act, the executor or administrator disposing of the property, must be allowed by the surrogate out of the proceeds of the sale brought into court, his commissions and expenses; and such a further sum as the surrogate thinks reasonable, for the necessary services of his attorney and counsel therein.”
Section 285 of the same act provides for commissions to be paid to executors on a sliding scale according to the size of the estate, viz.: 5 per cent, on first $2,000; 2% per cent, on next $20,000; 1% per cent, on next $28,000'; 2 per cent, on all above $50,000. “The value of any real or personal property, to be determined in such manner as the surrogate may direct, and the increment thereof, received, distributed or delivered shall be considered as money in making the computation of commissions. But this shall not apply in ease of a specific legacy or devise. * * * If the gross value of the principal of the estate or fund accounted for amounts to $100,000 or more, each executor, administrator, or guardian or testamentary trustee is entitled to the full compensation on principal and income allowed herein to a sole executor. * * * ”
It is thus conclusively established that administration expenses in the settlement of estates are allowed by the statute of the state of New York, and it is also apparent that, if the scale of allowances to executors were applied to the estate in the ease at bar, the result would be sums largely in excess of those paid by the trustees to themselves.
It is suggested by appellant that the trustees have included in the services for which they paid themselves the making of an inventory and a valuation of the property of C. N. Nelson, Inc.; and that this service was no part of the duties of executors of the estate of C. N. Nelson. This suggestion overlooks the provisions of section 404 of the Revenue Act of 1921, which imposes upon executors the duty of making a return under oath, setting forth the value of the gross estate, the deductions under section 403, the value of the net estate, and the amount of tax payable thereon.
Clearly, in determining the value of the 10,000 shares of stock in C. N. Nelson, Inc., it was highly proper to make an inventory and a valuation of the stocks and other property owned by that corporation. The trustees came within the definition of executors as given in section 400 of the Revenue Act of 1921, and it was accordingly their duty to make the return, and to take the usual steps to insure reasonable correctness in the return.
Our conclusion of the whole case is that the items in question were administration expenses and were properly deductible in determining the value of the net estate.
The petition to review is denied, and the order of the Board of Tax Appeals is affirmed.
Question: What is the nature of the second listed respondent whose detailed code is not identical to the code for the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
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.
John T. BLANKENSHIP, Gerald Wayne Hodges and Virgil Olen McDonald, Appellees, v. THURSTON MOTOR LINES, INC., Appellant.
No. 13257.
United States Court of Appeals Fourth Circuit.
Argued June 12, 1969.
Decided Sept. 26, 1969.
J. W. Alexander, Jr., Charlotte, N. C. (Ernest W. Machen, Jr., Brown, Hill, Boswell and Blakeney, Alexander & Machen, Charlotte, N. C., on brief), for appellant.
John C. Towler, Roanoke, Va. (Frank N. Perkinson, Jr., Roanoke, Va., on brief), for appellees.
Before SOBELOFF, WINTER and CRAVEN, Circuit Judges.
WINTER, Circuit Judge:
Thurston Motor Lines, Inc. appeals from judgments against it obtained by three former employees, who sued under the Fair Labor Standards Act, 29 U.S.C. A. § 201 et seq., to recover overtime compensation to which they claimed they were entitled. In the district court, Thurston contended that its employees Hodges and McDonald were not covered by the overtime provisions of the Act, but the district judge concluded otherwise and awarded them damages. The district judge agreed that a third employee, Blankenship, was not covered by that part of the Act. However, he also gave Blankenship judgment, concluding that, under the minimum wage provisions of the Act, he had not been fully compensated for the number of hours he had worked. We reverse and direct the entry of judgments for defendant.
-I-
Under the Motor Carrier Act of 1935, the Interstate Commerce Commission was accorded the power to “establish reasonable requirements with respect to * * * qualifications and maximum hours of service of employees, and safety of operation and equipment” of common carriers by motor vehicle. 49 U.S.C.A. § 304(a) (1). Three years later, when the Fair Labor Standards Act [FLSA] was adopted, Congress expressly provided that overtime provisions of the Act “shall not apply with respect to * * any employee with respect to whom the Interstate Commerce Commission [now the Secretary of Transportation] has power to establish qualifications and maximum hours of service pursuant to the provisions of Section 304 of Title 49.” 29 U.S.C.A. § 213(b) (1) (1965). In defining the interrelation between these statutory provisions, the Supreme Court has held that only those employees who were engaged in work which may affect the safety of the operation of motor vehicles were subject to the I.C.C.’s jurisdiction and, consequently, with respect to them, their employers were exempt from the overtime requirements of the FLSA. United States v. American Trucking Associations, 310 U.S. 534, 60 S.Ct. 1059, 84 L.Ed. 1345 (1940). The Supreme Court has also held that the general class of workers to which all of the plaintiffs belonged, that • is, loaders or supervisors of loaders of freight into trucks moving in interstate commerce, was subject to I.C.C. jurisdiction and hence exempt from the FLSA overtime provisions. Levinson v. Spector Motor Service, 330 U.S. 649, 67 S.Ct. 931, 91 L.Ed. 1158 (1947).
-II-
Hodges and McDonald were employed as dock-workers and it is not disputed that among their principal duties was the loading of trucks engaged in interstate commerce. Hodges and McDonald contend, however, that both were so closely supervised in the performance of their assigned tasks that they bore no independent responsibility for the safe loading of the various vehicles and were not, consequently, within I.C.C. jurisdiction. Thus, they claim that they were not exempt from the overtime sections of the FLSA. We cannot agree, because this position, in our view, is factually untenable in the instant case.
Before turning to the facts, we note that the Interstate Commerce Commission, in defining and discussing the “loader” classification of employees, drew no distinction between various categories of employees with respect to the extent or degree of supervision, independent decision or discretion which each exercised. Ex parte No. MC-2, 28 MCC 125, 133-134. Persuasive authorities both intimate and explicitly hold that loaders, even if closely supervised, remain within I.C.C. jurisdiction. Mitchell v. Hill & Hill Truck Line, 183 F.Supp. 463, 466-467 (S.D. Tex. 1960); Sumrall v. T. E. Mercer Trucking Co., 183 F.Supp. 761 (S,D.Tex.l958). See Levinson v. Spector Motor Service, supra; Mitchell v. Overnite Transportation Co., 176 F.Supp. 399 (M.D. N.C. 1959).
Plaintiffs’ authorities do not compel a different conclusion. These cases, of which the discussion in Pyramid Motor Freight Corp. v. Ispass, 330 U.S. 695, 708, 67 S.Ct. 954, 91 L.Ed. 1184 (1947), is illustrative, merely demonstrate the application of the de minimis rule, that is, that I.C.C. jurisdiction would not attach if an employee’s activities directly related to the safety of interstate vehicles were trivial in relation to his overall duties. These authorities are primarily concerned with factors other than the issue of the degree of supervision or discretion assigned to the employee. E. g., Morris v. McComb, 332 U.S. 422, 68 S.Ct. 131, 92 L.Ed. 44 (1947) (employees devoting only 4% of time to interstate activities nevertheless regulable by I.C.C.). In the instant case it is not contended that the actual amount of time which plaintiffs consumed in loading operations was not substantial.
Plaintiffs also rely upon Interpretive Bulletin No. 782, published by the Department of Labor, which states in part that
“an employee who had no responsibility for the proper loading of a motor vehicle is not within the exemption as a
‘loader’ merely because he furnishes physical assistance when necessary in loading heavy pieces of freight, or because he deposits pieces of freight ■ in the vehicle for someone else to distribute and secure in place, or even because he does the physical work of arranging pieces of freight in the vehicle where another employee tells him exactly what to dio in each instance and he is given no share in the exercise of discretion as to the manner in which the loading is done.” 29 C.F.R. § 782.5 (c), pp. 508-509. (Emphasis added.) Assuming arguendo that the foregoing represents a correct statement of the law, we are persuaded that it fails to characterize adequately the factual circumstances of the instant case with respect to the scope of Hodges’ and McDonald’s duties, for the record clearly indicates that these employees were not, in each instance, told exactly how the loading was to be accomplished.
In brief summary, the testimony of the president of Thurston Motor Lines was to the effect that workers such as Hodges and McDonald were not specifically instructed where every piece of freight should be placed, but rather were called upon to exercise their own judgment and discretion in the process of loading. Terminal Manager McClure testified that both Hodges and McDonald exercised discretion in loading freight after they had been given a certain amount of instruction by other company employees. Curtis Farris, another employee of Thurston, who was called as plaintiffs’ witness, testified in part as follows:
“[Defendant's Attorney] Q. Now, did he [the supervisor] follow Hodges into each truck with each piece of freight and tell him where to set it?
“A. No, sir — not that. But, in other words, if he had freight he wanted loaded, he told Hodges what truck to go on.
“Q. And Hodges put it on that truck?
“A. Yes, sir.
“Q. And the same was true of McDonald ?
“A. Right.”
Plaintiff Blankenship, who, during at least part of the period in question, was the supervisor of Hodges and McDonald, testified that he did not follow them into a particular truck every time one or the other took freight in to load it, but that he merely checked their work at various intervals. Neither Hodges nor McDonald testified.
The picture which emerges from this testimony is one in which Hodges and McDonald exercised significant discretion in performing their task of loading freight. It is true that they and the other loaders were supervised, that is, were told which trucks to load and that their work was checked, albeit somewhat haphazardly. These factors, however, do not render inconsequential the initial discretion exercised by Hodges and McDonald. We, therefore, hold, in accordance with the authorities previously discussed, that at least where, as here, the employee retains some appreciable discretion in conducting the loading operation in the first instance, his employer is exempt from the overtime provisions of the FLSA. To the extent that the district judge’s opinion may be read as finding as a fact that Hodges and McDonald exercised no discretion in the performance of their loading duties, his findings were clearly erroneous.
—III—
The district court concluded, correctly, that Blankenship was exempt from the overtime provisions of the FLSA because he was charged not only with loading vehicles but also with supervising others, including Hodges and McDonald, who were engaged in loading activity. Blankenship does not, in this appeal, attack this conclusion.
Nevertheless, the district judge determined that Blankenship was entitled to relief on the following theory: Prior to March, 1966, Blankenship was compensated for his services on the basis of an hourly wage of $2.30. In March, 1966, the basis of compensation was converted to a weekly salary of $115.00, which was shortly thereafter increased to $120.00 per week. The district judge calculated that this conversion was effected on the supposition that Blankenship would be required to work 50 hours per week. The judge then noted that, prior to the conversion, Blankenship had been working an average of 60 hours a week. No records were kept to show how many hours Blankenship actually worked after he was changed to a flat salary, but the district judge considered that Blankenship had worked approximately the same length of time, which, therefore, included ten hours per week for which he had received no. compensation. The district judge, therefore, ordered that Blankenship be paid for 10 hours at the minimum wage rate for those weeks during which he had been on salary, apparently on the theory that the minimum wage provisions of the Fair Labor Standards Act, 29 U.S.C.A. § 206(a), had been violated.
Although Blankenship was exempt from the overtime provisions of the FLSA, he was not exempt from the Act’s minimum wage provisions. However, United States v. Klinghoffer Bros. Realty Corp., 285 F.2d 487 (2 Cir. 1960), which, we are persuaded, contains a correct statement of the law relevant to this case, shows that the minimum wage provisions were not violated.
In Klinghoffer, certain employees agreed to work a specified number of hours for a given compensation and, in addition, to work for other periods with no compensation whatever. The Court concluded the workweek constituted the period of time over which wages should be measured to determine whether the employer was in compliance with the minimum wage provisions and that there was no statutory violation so long as “each employee received during each week compensation equal to or exceeding the product of the total number of hours worked and the statutory minimum hourly rate.” 285 F.2d at 493.
In the instant case, it is clear that, applying the principles of Klinghoffer, there was no minimum wage violation. Even if the district court's finding that Blankenship averaged 60 hours per week is accepted, his compensation of $115 to $120 a week was greatly in excess of the minimum wage rate, which varied between $1.25 and $1.40 per hour.
We conclude that Blankenship, as well as Hodges and McDonald, was not entitled to recovery under the Act. The judgments for plaintiffs will be reversed, with directions to enter judgments for their former employer.
Reversed with directions.
. These functions of the I.C.C. were transferred to the Secretary of Transportation by Pub.L. 89-670, 49 U.S.C.A. § 1655(e) (6) (C).
. The pertinent section of the FLSA is 29 U.S.C.A. § 207(a) (1) :
“Except as otherwise provided in this section, no employer shall employ any of his employees who in any workweek is engaged in commerce or in the production of goods for commerce, or is employed in an enterprise engaged in commerce or in the production of goods for commerce, for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.”
. “ [P]laintiffs contend that every loader must be a ‘boss,’ trusted with ultimate responsibility for the safe loading of his employer’s trucks, if he is to come within the Commission’s definition of ‘loaders.’ This interpretation is not warranted by the text of Ex parte No. MC-2, supra, or court decisions interpreting that opinion. What the Commission intended to cover was the physical act of loading freight in a safe manner so that the trucks might be operated safely on the highways. Certainly every workman is responsible for doing his Job well, even though his labor may be supervised closely and checked for accuracy by his supervisors. If safety depended upon the supervision and cheeking of the ‘boss,’ no one could depend upon the safety of trucks that were not so checked. Rather, safety depends upon the efforts of loaders who know what they are doing, who do the job the way it is to be done, and who are responsible for their actions. If, as in the case at bar, their actions directly affect the safety of the trucks they load, they fall within the Commission’s definition of ‘loaders’ and are excepted from the overtime provisions of the Fair Labor Standards Act.
This interpretation of Ex parte No. MC-2 is consistent with Levinson v. Spector Motor Service, supra, * * *. The employee was exempt whether directing or doing loading; the persons under his supervision were exempt, even though they received directions from him concerning their loading.” Mitchell v. Hill & Hill Truck Line, supra, at 466-467.
. In Wirtz v. C & P Shoe Corp., 336 F.2d 21, 29 (5 Cir. 1964), the Court indicated that the I.C.C. exception to the FLSA is inapplicable if the employee exercised no discretion in performing the loading operation. However, since we have concluded that, as a matter of fact, all of the plaintiffs in the instant case did exercise some degree of discretion in performing their loading functions, we need not decide what approach we would adopt if it were plainly demonstrable that an employee in fact exercised no discretion whatever in the performance of his duties.
. The correctness of the district judge’s finding that Blankenship worked an average of 60 hours per week after he was placed on a weekly salary is highly questionable. The evidence seems clear that Blankenship was converted to a flat salary because lie clocked unnecessary hour's when he was paid on an hourly basis by remaining at the freight terminal during those times of the day when there was no work to he done. Blankenship concurred in a reduction of his hours and the parties assumed that his duties could be performed in 50 hours per week. However, the parties made no agreement that Blankenship would be paid more or less salary if the need for his services was more or less than 50 hours per week. The evidence also establishes that after his flat salary was begun Blankenship did not remain at the terminal as long as previously, and took a few hours off each afternoon in the interim between the end of morning loading and the beginning of afternoon loading. But in our view of the case, we need not disturb this finding.
. The government argues, nevertheless, that all of such weekly wage was allocated by agreement to the work done at [location] 3300, so that the work at [location] 3408 was performed without pay. Therefore, it is contended, the time worked at 3408 was paid for at a rate of $0.00 per hour, or an amount less than the $1.00 minimum requirement.
“If the total wage paid to each guard in this case during any given week is divided by the total time he worked that week, the resulting average hourly wage exceeds $1.00 for every week and every guard involved. We believe this is all that is necessary to meet the requirements of § 206(a). The Congressional purpose underlying that section was to guarantee a minimum livelihood to the employees covered by the Act. Payment at intervals shorter than weekly is unusual and is not necessary to enable the employees to meet their customary obligations. Accordingly the Congressional purpose is accomplished so long as the total weekly wage paid by an employer meets the minimum weekly requirements of the statute, such minimum weekly requirement being equal to the number of hours actually worked that week multiplied by the minimum hourly statutory requirement. Hence so long as this weekly requirement is met, § 206(a) is not violated if the parties by agreement treat all of that wage as being paid for part of the work and regard certain other work as done for nothing.” United States v. Klinghoffer Bros. Realty Corp., supra, at 490.
Question: What type of court made the original decision?
A. Federal district court (single judge)
B. 3 judge district court
C. State court
D. Bankruptcy court, referee in bankruptcy, special master
E. Federal magistrate
F. Federal administrative agency
G. Special DC court
H. Other
I. Not ascertained
Answer:
|
sc_caseorigin
|
160
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court in which the case originated. Focus on the court in which the case originated, not the administrative agency. For this reason, if appropiate note the origin court to be a state or federal appellate court rather than a court of first instance (trial court). If the case originated in the United States Supreme Court (arose under its original jurisdiction or no other court was involved), note the origin as "United States Supreme Court". If the case originated in a state court, note the origin as "State Court". Do not code the name of the state. The courts in the District of Columbia present a special case in part because of their complex history. Treat local trial (including today's superior court) and appellate courts (including today's DC Court of Appeals) as state courts. Consider cases that arise on a petition of habeas corpus and those removed to the federal courts from a state court as originating in the federal, rather than a state, court system. A petition for a writ of habeas corpus begins in the federal district court, not the state trial court. Identify courts based on the naming conventions of the day. Do not differentiate among districts in a state. For example, use "New York U.S. Circuit for (all) District(s) of New York" for all the districts in New York.
ENERGY RESERVES GROUP, INC. v. KANSAS POWER & LIGHT CO.
No. 81-1370.
Argued November 9, 1982
Decided January 24, 1983
Blackmun, J., delivered the opinion of the Court, in which BRENNAN, White, Marshall, Stevens, and O’Connor, JJ., joined, and in all but Part II-C of which Burger, C. J., and Powell and Rehnquist, JJ., joined. Powell, J., filed an opinion concurring in part, in which Burger, C. J., and Rehnquist, J., joined, post, p. 421.
Gary W. Davis argued the cause for appellant. With him on the briefs were Martin W. Bauer, Clark Mandigo, Edwin W. Parker II, I. Michael Greenberger, and Nancy J. Bregstein.
Basil W. Kelsey argued the cause for appellee. With him on the brief were Jerome T. Wolf, Terry W. Schackmann, and David S. Black.
Briefs of amici curiae urging affirmance were filed by Brian J. Moline, Special Assistant Attorney General of Kansas, for the State Corporation Commission of the State of Kansas; by William E. Metcalf and Patrick H. Donahue for Kansas Legal Services, Inc.; by Jan Eric Cart wright, Attorney General of Oklahoma, Robert D. Stewart, Jr., and Eddie M. Pope for the Oklahoma Corporation Commission; and by Dennis G. Lyons, Mark J. Spooner, John L. Arrington, Jr., Curtis M. Long, Jay M. Galt, and Harry W. Birdwell for Oklahoma Natural Gas Co. et al.
Justice Blackmun
delivered the opinion of the Court.
This case concerns the regulation by the State of Kansas of the price of natural gas sold at wellhead in the intrastate market. It presents a federal Contract Clause issue and a statutory issue.
I
On September 27, 1975, The Kansas Power & Light Company (KPL), a public utility and appellee here, entered into two intrastate natural gas supply contracts with Clinton Oil Company, the predecessor-in-interest of appellant Energy Reserves Group, Inc. (ERG). Under the first contract, KPL agrees to purchase gas directly at the wellhead on the Spivey-Grabs Field in Kingman and Harper Counties in southern Kansas. The second contract obligates KPL to purchase from the same field residue gas, that is, gas remaining after certain recovery and processing steps are completed. The original contract price was $1.50 per thousand cubic feet (Mcf) of gas. The contracts continue in effect for the life of the field or for the life of the processing plants associated with the field.
A
Each contract contains two clauses known generically as indefinite price escalators. The first is a governmental price escalator clause; this provides that if a governmental authority fixes a price for any natural gas that is higher than the price specified in the contract, the contract price shall be increased to that level. The second is a price redetermination clause; this gives ERG the option to have the contract price redetermined no more than once every two years. The new price is then set by averaging the prices being paid under three other gas contracts chosen by the parties.
When the price is increased pursuant to either of these clauses, each contract requires KPL to seek from the Kansas Corporation Commission (Commission) approval to pass the increase through to consumers. App. to Juris. Statement 69a. The application for approval is to be submitted within 5 days after a price increase resulting from governmental action, or no fewer than 60 days before a price redetermination increase is to become effective. Ibid. If the Commission refuses to permit the pass-through and KPL elects not to pay the increase, ERG has the option to terminate the agreement on 30 days’ written notice.
Each contract states that the purpose of the price escalator clauses is “solely” to compensate ERG for “anticipated” increases in its operating costs and in the value of its gas. Id., at 70a. Each contract also provides: “Neither party shall be held in default for failure to perform hereunder if such failure is due to compliance with,” ibid., any “relevant present and future state and federal laws.” Id., at 69a.
In 1977, ERG invoked the price redetermination clause, and the parties agreed on a price of $1.77 per Mcf, effective November 27 of that year. The Commission approved the pass-through of this increase to consumers. KPL paid the new price through 1978.
B
On December 1, 1978, the Natural Gas Policy Act of 1978 (Act), Pub. L. 95-621, 92 Stat. 3350, 15 U. S. C. §3301 et seq. (1976 ed., Supp. V), designed in principal part to encourage increased natural gas production, became effective. The Act replaced the federal price controls that had been established under the Natural Gas Act, ch. 556, 52 Stat. 821, with price ceilings that rise monthly based on “an inflation adjustment factor” and other considerations. Different ceilings are set for different types of gas. Section 102 of the Act, 15 U. S. C. §3312 (1976 ed., Supp. V), sets a gradually increasing ceiling price for newly discovered or newly produced natural gas. The December 1978 ceiling price under § 102 was $2,078 per million British thermal units. Section 104 sets ceiling prices for “old” interstate gas, that is, gas from already discovered and producing wells. Section 109 sets another ceiling price for categories of natural gas not covered by the other sections of the Act. As of December 1978, the § 109 ceiling price was $1.63 per million Btu’s.
In another departure from the 1938 Natural Gas Act, the new Act extended federal price regulation to the intrastate gas market. See S. Conf. Rep. No. 95-1126, pp. 67-68 (1978); H. R. Conf. Rep. No. 95-1752, pp. 67-68 (1978). Section 105 of the Act establishes the rule for applying price ceilings to intrastate gas, described as gas not committed to interstate commerce on November 8, 1978. It provides, in its subsection (b)(1), that the maximum lawful price of such gas “shall be the lower of. . . the price under the terms of the existing contract, to which such natural gas was subject on [November 9, 1978], . . . or . . . the maximum lawful price . . . computed for such month under section 102 (relating to new natural gas).” The parties agree that § 105(b)(1) governs these contracts.
The Act, by § 602(a), also permits a State “to establish or enforce any maximum lawful price for the first sale of natural gas produced in such State which does not exceed the applicable maximum lawful price, if any, under title I of this Act.”
C
In direct response to the Act, the Kansas Legislature promptly imposed price controls on the intrastate gas market. In May 1979, the Kansas Natural Gas Price Protection Act (Kansas Act), 1979 Kan. Sess. Laws, ch. 171, codified as Kan. Stat. Ann. §§ 55 — 1401 to 55-1415 (Supp. 1982), was enacted. The Kansas Act applies only to natural gas contracts executed before April 20, 1977, § 55-1403, and controls natural gas prices until December 31, 1984, § 55-1411. Section 55-1404 prohibits consideration either of ceiling prices set by federal authorities or of prices paid in Kansas under other contracts in the application of governmental price escalator clauses and price redetermination clauses. Section 55-1405 of the Kansas Act, however, permits indefinite price escalator clauses to operate after March 1, 1979, to raise the price of old intrastate gas up to the federal Act’s § 109 ceiling price. Section §55-1406 exempts new gas and gas from stripper wells.
D
On November 20, 1978, ERG and other gas suppliers having similar contracts with KPL notified KPL that gas prices would be escalated to the § 102 price on December 1, pursuant to the governmental price escalator clause. KPL sought pass-through approval from the Commission for this increase by an application filed December 7, one day too late to satisfy the 5-day contractual requirement. KPL never elected to pay the higher price.
On June 5, 1979, ERG notified KPL that it would terminate the contracts within 30 days because KPL had failed to apply to the Commission for pass-through authority within five days of December 1, 1978, had failed to obtain Commission approval, and had failed to pay the increased price ERG contends was required by the governmental price escalator clause. KPL’s response was that the clause was not triggered by the Act and that the Kansas Act prohibited its activation. ERG then filed an action in the District Court of Harper County, Kan., praying for a declaratory judgment that it had the contractual right to terminate the contracts.
On July 24, in light of KPL’s refusal to terminate, ERG requested an increase up to the Act’s § 102 ceiling price under the price redetermination clause. The increase was to be effective in November 1979, the next redetermination date possible under the contracts. KPL conceded that the price redetermination clause permitted such an increase, but contended that § 55-1404 of the Kansas Act had extinguished the utility’s obligation to comply with that clause. ERG then filed an amended complaint, alleging that it was entitled to terminate the contracts because of KPL’s refusal to redetermine the price. KPL counterclaimed for a declaratory judgment that the contracts were still in effect.
On the parties’ cross-motions for summary judgment, the state trial court held that the Act’s imposition of price ceilings on intrastate gas did not trigger the governmental escalator clause. It also found that the Kansas Act did not violate the Contract Clause, reasoning that Kansas has a legitimate interest in addressing and controlling the serious economic dislocations that the sudden increase in gas prices would cause, and that the Kansas Act reasonably furthered that interest. App. to Juris. Statement 25a, 42a, 45a. The Supreme Court of Kansas, by unanimous vote, affirmed. 230 Kan. 176, 630 P. 2d 1142 (1981). We noted probable jurisdiction. 456 U. S. 904 (1982).
HH t — 1
ERG raises both statutory and constitutional issues in challenging the ruling of the Kansas Supreme Court. The constitutional issue is whether the Kansas Act impairs ERG’s contracts with KPL in violation of the Contract Clause, U. S. Const., Art. I, §10, cl. I. The statutory issue is whether the federal enactment of §105 triggered the governmental price escalator clause. As to the latter issue, if § 105’s enactment did have that effect, ERG was entitled to a price increase on December 1,1978. If not, ERG could rely only on the price redetermination clause for any increase. That clause could not be exercised until November 1979. The statutory issue thus controls the timing of any increase. The constitutional issue, on the other hand, affects the price that ERG may claim under either clause. If ERG prevails, the price may be escalated to the § 102 ceiling; if ERG does not prevail, the price may be escalated only to the § 109 ceiling. We consider the Contract Clause issue first.
A
Although the language of the Contract Clause, is facially absolute, its prohibition must be accommodated to the inherent police power of the State “to safeguard the vital interests of its people.” Home Bldg. & Loan Assn. v. Blaisdell, 290 U. S. 398, 434 (1934). In Blaisdell, the Court approved a Minnesota mortgage moratorium statute, even though the statute retroactively impaired contract rights. The Court balanced the language of the Contract Clause against the State’s interest in exercising its police power, and concluded that the statute was justified.
The Court in two recent cases has addressed Contract Clause claims. In United States Trust Co. v. New Jersey, 431 U. S. 1 (1977), the Court held that New Jersey could not retroactively alter a statutory bond covenant relied upon by bond purchasers. One year later, in Allied Structural Steel Co. v. Spannaus, 438 U. S. 234 (1978), the Court invalidated a Minnesota statute that required an employer who closed its office in the State to pay a “pension funding charge” if its pension fund at the time was insufficient to provide full benefits for all employees with at least 10 years’ seniority. Although the legal issues and facts in these two cases differ in certain ways, they clarify the appropriate Contract Clause standard.
The threshold inquiry is “whether the state law has, in fact, operated as a substantial impairment of a contractual relationship.” Allied Structural Steel Co., 438 U. S., at 244. See United States Trust Co., 431 U. S., at 17. The severity of the impairment is said to increase the level of scrutiny to which the legislation will be subjected. Allied Structural Steel Co., 438 U. S., at 245. Total destruction of contractual expectations is not necessary for a finding of substantial impairment. United States Trust Co., 431 U. S., at 26-27. On the other hand, state regulation that restricts a party to gains it reasonably expected from the contract does not necessarily constitute a substantial impairment. Id., at 31, citing El Paso v. Simmons, 379 U. S. 497, 515 (1965). In determining the extent of the impairment, we are to consider whether the industry the complaining party has entered has been regulated in the past. Allied Structural Steel Co., 438 U. S., at 242, n. 13, citing Veix v. Sixth Ward Bldg. & Loan Assn., 310 U. S. 32, 38 (1940) (“When he purchased into an enterprise already regulated in the particular to which he now objects, he purchased subject to further legislation upon the same topic”). The Court, long ago observed: “One whose rights, such as they are, are subject to state restriction, cannot remove them from the power of the State by making a contract about them.” Hudson Water Co. v. McCarter, 209 U. S. 349, 357 (1908).
If the state regulation constitutes a substantial impairment, the State, in justification, must have a significant and legitimate public purpose behind the regulation, United States Trust Co., 431 U. S., at 22, such as the remedying of a broad and general social or economic problem. Allied Structural Steel Co., 438 U. S., at 247, 249. Furthermore, since Blaisdell, the Court has indicated that the public purpose need not be addressed to an emergency or temporary situation. United States Trust Co., 431 U. S., at 22, n. 19; Veix v. Sixth Ward Bldg. & Loan Assn., 310 U. S., at 39-40. One legitimate state interest is the elimination of unforeseen windfall profits. United States Trust Co., 431 U. S., at 31, n. 30. The requirement of a legitimate public purpose guarantees that the State is exercising its police power, rather than providing a benefit to special interests.
Once a legitimate public purpose has been identified, the next inquiry is whether the adjustment of “the rights and responsibilities of contracting parties [is based] upon reasonable conditions and [is] of a character appropriate to the public purpose justifying [the legislation’s] adoption.” United States Trust Co., 431 U. S., at 22. Unless the State itself is a contracting party, see id., at 23, “[a]s is customary in reviewing economic and social regulation, . . . courts properly defer to legislative judgment as to the necessity and reasonableness of a particular measure.” Id., at 22-23.
B
The threshold determination is whether the Kansas Act has impaired substantially ERG’s contractual rights. Significant here is the fact that the parties are operating in a heavily regulated industry. See Veix v. Sixth Ward Bldg. & Loan Assn., 310 U. S., at 38. State authority to regulate natural gas prices is well established. See Cities Service Gas Co. v. Peerless Oil & Gas Co., 340 U. S. 179 (1950). At the time of the execution of these contracts, Kansas did not regulate natural gas prices specifically, but its supervision of the industry was extensive and intrusive. Moreover, under the authority of §5(a) of the 1938 Natural Gas Act, the Federal Power Commission (FPC) set “just and reasonable” rates for prices of gas both at the wellhead and in pipelines. Although prices in the intrastate market have diverged somewhat from those in the interstate market due to the recent shortage of natural gas, the regulation of interstate prices effectively limits intrastate price increases.
It is in this context that the indefinite escalator clauses at issue here are to be viewed. In drafting each of the contracts, the parties included a statement of intent, which made clear that the escalator clause was designed to guarantee price increases consistent with anticipated increases in the value of ERG’s gas. App. to Juris. Statement 70a. While it is not entirely inconceivable that ERG in September 1975 anticipated the deregulation of gas prices introduced by the Act in 1978, we think this is highly unlikely, and we read the statement of intent to refer to nothing more than changes in value resulting from changes in the federal regulator’s “just and reasonable” rates. In exchange for these anticipated increases, KPL agreed to accept gas from the Spivey-Grabs field for the lifetime of that field. Thus, at the time of the execution of the contracts, ERG did not expect to receive deregulated prices. The very existence of the governmental price escalator clause and the price redetermination clause indicates that the contracts were structured against the background of regulated gas prices. If deregulation had not occurred, the contracts undoubtedly would have called for a much smaller price increase than that provided by the Kansas Act’s adoption of the § 109 ceiling.
Moreover, the contracts expressly recognize the existence of extensive regulation by providing that any contractual terms are subject to relevant present and future state and federal law. This latter provision could be interpreted to incorporate all future state price regulation, and thus dispose of the Contract Clause claim. Regardless of whether this interpretation is correct, the provision does suggest that ERG knew its contractual rights were subject to alteration by state price regulation. Price regulation existed and was foreseeable as the type of law that would alter contract obligations. Reading the Contract Clause as ERG does would mean that indefinite price escalator clauses could exempt ERG from any regulatory limitation of prices whatsoever. Such a result cannot be permitted. Hudson Water Co. v. McCarter, 209 U. S., at 357. In short, ERG’s reasonable expectations have not been impaired by the Kansas Act. See El Paso v. Simmons, 379 U. S., at 515.
C
To the extent, if any, the Kansas Act impairs ERG’s contractual interests, the Kansas Act rests on, and is prompted by, significant and legitimate state interests. Kansas has exercised its police power to protect consumers from the escalation of natural gas prices caused by deregulation. The State reasonably could find that higher gas prices have caused and will cause hardship among those who use gas heat but must exist on limited fixed incomes.
The State also has a legitimate interest in correcting the imbalance between the interstate and intrastate markets by permitting intrastate prices to rise only to the § 109 level. By slowly deregulating interstate prices, the Act took the cap off intrastate prices as well. The Kansas Act attempts to coordinate the intrastate and interstate prices by supplementing the federal Act’s regulation of intrastate gas. Congress specifically contemplated such action:
“The conference agreement provides that nothing in this Act shall affect the authority of any State to establish or enforce any maximum lawful price for sales of gas in intrastate commerce which does not exceed the applicable maximum lawful price, if any, under Title I of this Act. This authority extends to the operation of any indefinite price escalator clause.” S. Conf. Rep. No. 95-1126, pp. 124-125 (1978); H. R. Conf. Rep. No. 95-1752, pp. 124-125 (1978).
There can be little doubt about the legitimate public purpose behind the Act.
Nor are the means chosen to implement these purposes deficient, particularly in light of the deference to which the Kansas Legislature’s judgment is entitled. On the surface, the State
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Answer:
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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".
C. H. HEIST CARIBE CORPORATION, v. AMERICAN HOME ASSURANCE COMPANY, Appellant.
No. 80-2270.
United States Court of Appeals, Third Circuit.
Argued Dec. 9, 1980.
Decided Feb. 10, 1981.
Edwin L. Scherlis, Frank, Margolis, Edelstein & Scherlis, Philadelphia, Pa., Mark L. Milligan (argued), Christiansted, St. Croix, V. I., for appellant.
Richard E. Daley (argued), Isherwood, Barnard & Diehm, Christiansted, St. Croix, V. I., for appellee.
Before SEITZ, Chief Judge, and GIBBONS and ROSENN, Circuit Judges.
OPINION OF THE COURT
SEITZ, Chief Judge.
American Home Assurance Company (American) appeals from an order of the district court granting summary judgment for C. H. Heist Caribe Corporation (Heist),
I.
In November 1976, a Heist employee named Russell Crookham was injured while cleaning a chemical storage tank at Hess Oil Virgin Islands Corporation (Hess Oil). Crookham brought a personal injury action against Hess Oil, alleging that he suffered serious physical and mental injuries because he was exposed to highly toxic lead substances during the cleaning process. Hess Oil then filed a third-party complaint against Heist, contending that Heist was liable, under an October 7, 1976 indemnity agreement, for any injuries incurred by Heist employees while working at Hess Oil.
Heist notified American, its insurer, of the third-party action and requested that American defend the action and provide liability coverage. American refused to defend or provide coverage on two grounds: (l) Heist did not report the October 7 indemnity agreement to American as required by the contractual liability provisions of the insurance policy, and (2) paragraph (m) of the policy excluded from coverage injuries resulting from the nonaccidental discharge of toxic substances.
As a result of American’s refusal to defend or provide coverage, Heist brought this declaratory judgment action against American for a determination of its rights under the policy. After discovery, Heist and American filed cross motions for summary judgment. The district court granted Heist’s motion, which sought a declaration that the third-party action was “within the coverage” of Heist’s insurance policy with American. The court held that the reporting provisions of the policy should be construed in favor of the insured because they are ambiguous. The court also found that paragraph (m) was inapplicable because it only excluded coverage for nonaccidental environmental pollution.
II.
American argues that the reporting provisions of the policy are not ambiguous, and that they require Heist to notify American of all indemnity agreements within ninety days of entering into those agreements. Because Heist did not notify American of the October 7 indemnity agreement, American contends that it is not obligated to defend the third-party action or to provide liability coverage. American also maintains that the district court erred in granting summary judgment for Heist because unresolved issues of material fact remain as to the parties’ intent in including the reporting requirement in the policy. Finally, American argues that paragraph (m) of the policy excludes from coverage the injuries sustained by Crookham, and that the district court’s interpretation of paragraph (m) led it to decide incorrectly that American must not only defend the third-party action but also indemnify Heist against any judgment in that proceeding.
In resolving these issues, this court is guided by the general principles of insurance law. See Buntin v. Continental Insurance Co., 583 F.2d 1201, 1204 n.3 (3d Cir. 1978); V.I. Code Ann. tit. 1, § 4 (1967). An insurance policy must be read as a whole and construed according to the plain meaning of its terms. If those terms are reasonably susceptible of more than one interpretation, they are regarded as ambiguous. See, e. g., Buntin, 583 F.2d at 1207; C. Raymond Davis & Sons, Inc. v. Liberty Mutual Insurance Co., 467 F.Supp. 17, 20 (E.D.Pa.1979). All ambiguities must be resolved against the insurer and in favor of coverage. See, e. g., Buntin, 583 F.2d at 1207; Transport Indemnity Co. v. Home Indemnity Co., 535 F.2d 232, 235-36 (3d Cir. 1976). It is settled, however, that an insurer’s obligation to defend an action against the insured is not necessarily coextensive with its obligation to indemnify the insured. See, e. g., Moffat v. Metropolitan Casualty Insurance Co., 238 F.Supp. 165, 173 (M.D.Pa.1964); Missionaries of the Company of Mary, Inc. v. Aetna Casualty & Surety Co., 155 Conn. 104, 230 A.2d 21, 24 (1967). Different elements of proof are required to establish a breach of each obligation.
A. The Reporting Requirement
The printed provisions of Heist’s insurance policy with American provide that American “will pay on behalf of the insured, all sums which the insured, by reason of contractual liability assumed by him under a contract designated in the schedule for this insurance, shall become legally obligated to pay as damages because of . . . bodily injury. ...” The following schedule was included in the policy: *
CONTRACTUAL LIABILITY INSURANCE
(Designated Contracts Only)
Schedule
The insurance afforded for contractual liability is only with respect to such of the following Coverages as are indicated by a specific premium charge applicable thereto.
This schedule contains advance premium charges for bodily injury. In addition, the following typewritten provision was inserted in that portion of the schedule in which specific contracts were to be listed:
BLANKET AUTOMATIC CONTRACTUAL
(90 DAYS REPORTING)
The plain meaning of the printed terms of the policy is that only those contracts specifically designated in the schedule are covered. It is not clear, however, what effect the typewritten provision has on these terms. American contends that “BLANKET AUTOMATIC CONTRACTUAL (90 DAYS REPORTING)” means that automatic coverage is provided only for those contracts reported to American within ninety days of their execution. However, as Heist notes, this provision is also reasonably susceptible of an interpretation that any contractual liability assumed by Heist is automatically covered by the policy. Under this interpretation, the ninety-day-reporting provision can be viewed as requiring only that all occurrences giving rise to liability be reported within ninety days, or that all claims based upon contractual liability be reported within ninety days.
The reasonableness of Heist’s interpretation is strengthened by the fact that the typewritten provision was inserted in that portion of the schedule where specific contracts were to be listed. Thus, the term “BLANKET AUTOMATIC CONTRACTUAL” can be read as an indication that the parties did not intend that specific contracts had to be listed in the schedule. Moreover, Heist emphasizes that there was an insurance form available to American that clearly imposes reporting requirements as a precedent to coverage. The fact that American did not use this form is not conclusive as to whether it intended to subject Heist to reporting requirements. Nevertheless, it is of probative value in interpreting the policy because it demonstrates that “different and more explicit language could have easily been used to express clearly and unequivocally [the insurer’s] intent.” Buntin, 583 F.2d at 1206; see Consolidation Coal Co. v. Liberty Mutual Insurance Co., 406 F.Supp. 1292, 1295 (W.D.Pa.1976) (provision is ambiguous if intelligent persons could differ as to precise meaning and if alternative language would have put meaning beyond reasonable question). Because the reporting provisions of the policy are reasonably susceptible of two different interpretations, we agree with the district court that Heist’s policy with American is ambiguous. This ambiguity must be resolved against American. Moreover, typewritten provisions of an insurance policy control if they conflict with the policy’s printed provisions. See, e. g., Buntin, 583 F.2d at 1206.
Alternatively, American contends that the district court should not have granted Heist’s motion for summary judgment because issues of material fact remain. American apparently is arguing that when the district court found the insurance policy to be ambiguous it should have denied summary judgment and heard testimony on the intent of the parties with regard to the contractual liability schedule and the reporting provisions. It is true that many courts will not apply the rule of construction that ambiguities must be resolved against the insurer until they have attempted to ascertain the intent of the parties through extrinsic evidence. See, e. g., Consolidation Coal Co., 406 F.Supp. at 1296; International Brotherhood of Painters & Allied Trades v. Hartford Accident & Indemnity Co., 388 A.2d 36, 43 (D.C.1978). However, American did not present in the district court any affidavits or other supporting papers that raise any unresolved issues of material fact concerning the intent of the parties. See Fed.R.Civ.P. 56(e). As a result, the district court was correct in granting summary judgment on this issue by resolving the ambiguity in the reporting provisions against American. American cannot refuse to defend or to provide coverage on the ground that Heist did not comply with the reporting provisions of the policy.
B. Paragraph (m)
Paragraph (m) of the policy excludes from coverage bodily injury resulting from the “discharge, dispersal, release or escape of . . . fumes, . . . toxic chemicals, liquids or gases, waste materials or other irritants, contaminants or pollutants into or upon land, the atmosphere or any . . . body of water, but this exclusion does not apply if such discharge, dispersal, release or escape is sudden and accidental.” The district court held that the “clear meaning of this clause is to exclude coverage for non-accidental environmental pollution.” As a result, it found that this exclusion did not apply to injuries suffered by a Heist employee while cleaning a tank containing toxic fumes and substances. American argues that this exclusion is not limited to environmental pollution, and that it applies to injuries caused by toxic fumes “whether one person is poisoned or one hundred people are poisoned.” American also maintains that the district court was incorrect in holding that the policy “covers” the third-party action because this decision requires American to indemnify Heist even though subsequent developments may demonstrate that the exclusion in paragraph (m) applies.
In determining whether paragraph (m) excludes from coverage the injuries suffered by Crookham, it is important to separate American’s duty to defend Heist in the third-party action from its duty to indemnify Heist. American must defend the third-party action if the allegations of the complaint “state on their face a claim against the insured to which the policy potentially applies.” C. Raymond Davis & Sons, Inc. v. Liberty Mutual Insurance Co., 467 F.Supp. 17, 19 (E.D.Pa.1979) (emphasis in original). In making this determination, the factual allegations of Crookham’s complaint against Hess Oil are controlling. That complaint alleges that Crookham was injured while cleaning a tank containing highly toxic lead substances. The allegations do not indicate that there was a discharge or release of toxic fumes or chemicals “into or upon land, the atmosphere or any . . . body of water.” In addition, even if such a discharge or release from the tank could be implied, there is no basis in the complaint for finding that it was non-accidental. Therefore, the allegations of Crookham’s complaint “state on their face a claim against the insured to which the policy potentially applies,” and American must defend the third-party action.
American also contends that the district court’s order in effect requires it not only to defend the third-party action but also to indemnify Heist against any judgment in that case. It is not clear that the district court intended to hold that American must indemnify Heist. Nevertheless, by granting Heist’s motion for summary judgment and stating that the policy “covers” the third-party action, the district court’s order appears to have that effect. American’s obligation to indemnify Heist, however, cannot be determined merely on the basis of whether the factual allegations of Crook-ham’s complaint potentially state a claim against the insured. Actual indemnification depends upon the existence or nonexistence of facts not yet established. For example, during trial of Crookham’s complaint it may develop that paragraph (m) or another exclusion applies to some or all of the injuries in question. Similarly, factual findings in that action may demonstrate that Crookham’s injuries are not within the scope of the October 7 indemnity agreement. Thus, a decision on American’s obligation to indemnify Heist is premature at this stage of the proceedings.
III.
The order of the district court granting summary judgment will be vacated without prejudice to the extent that it requires American to indemnify Heist against any judgment in the third-party action. The order of the district court will be affirmed in all other respects.
. American filed a notice of appeal from the order of the district court granting summary judgment before the court disposed of two motions by Heist requesting indemnification for attorneys’ fees and costs. However, the district court has since disposed of these motions. Thus, even though the district court’s order granting summary judgment may not have been a final order because of the pending motions, we may treat it as final in the absence of prejudice to appellee Heist. See Richerson v. Jones, 551 F.2d 918 (3d Cir. 1977). Heist has not asserted that it was prejudiced, and we see no basis in the record for such a finding.
Although American filed a notice of appeal from the district court’s decision on the attorneys’ fees motions, this appeal has been dismissed. Thus, only the order of the district court granting summary judgment for Heist is challenged on appeal.
. We need not decide whether the district court was correct when it held that paragraph (m) excludes coverage only for nonaccidental environmental pollution. Under either the district court’s or American’s interpretation of paragraph (m), American must defend the third-party action because Heist potentially could be held liable for damages covered by the policy. Similarly, regardless of which interpretation of paragraph (m) is correct, a decision on American’s obligation to indemnify Heist is premature at this time.
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_subevid
|
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 civil law issues involving government actors. The issue is: "Did the court's interpretation of the substantial evidence rule support the government? For example, "such evidence as a reasonable mind might accept as adequate to support a conclusion" or "more than a mere scintilla". This issue is present only when the court indicates that it is using this doctrine, rather than when the court is merely discussing the evidence to determine whether the evidence supports the position of the appellant or respondent." 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".
Leonard J. McMULLEN, Appellant, v. Anthony J. CELEBREZZE, Secretary, Health, Education and Welfare, Appellee.
No. 19139.
United States Court of Appeals Ninth Circuit.
Aug. 18, 1964.
Rehearing Denied Nov. 20, 1964.
Leonard J. McMullen, in pro. per.
Francis C. Whelan, U. S. Atty., Donald A. Fareed, Asst. U. S. Atty., Chief of Civil Section; James E. Biava, Asst. U. S. Atty., Los Angeles, Cal., for appellee.
Before CHAMBERS and KOELSCH, Circuit Judges, and JAMESON, District Judge.
JAMESON, District Judge:
This is an appeal from a judgment affirming the final decision of the appellee disallowing appellant’s claim for disability and for disability insurance benefits. Appellant represented himself in this court, as he did in the district court and in all proceedings before the Department of Health, Education and Welfare. This court has jurisdiction under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291.
Appellant filed an application on December 13, 1961, 2for insurance benefits, alleging that he had been continuously disabled under the provisions of the Social Security Act since April 12, 1949. Appellant claims to be entitled to disability benefits to February 5,1962, when he became 65 years of age, and to old-age pension benefits thereafter.
Following a denial of his claim, a hearing was held on December 6, 1962. The hearing examiner found that the claimant had not sustained his burden of showing that he was “disabled” within the meaning of the Social Security Act and that he was not accordingly entitled to a period of disability or to disability insurance benefits. This decision became the final decision of the Secretary when the Appeals Council denied review on May 2, 1963.
In a memorandum opinion the district court denied appellant’s motion for judgment on the pleadings and granted appel-lee’s motion for summary judgment. Thereafter the court adopted findings of fact and concluded as a matter of law that the final decision of the Secretary and the findings of fact upon which it was predicated were supported by substantial evidence, were conclusive and thus were approved and affirmed. A formal judgment was entered affirming the final decision of the Secretary.
Appellant questions the propriety of the summary judgment motion and proceedings. Section 405(g) gives the district court the “power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Secretary, * * * ”, and provides that, “The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive, * * * ”. The action accordingly is a “review” of the decision of the Secretary. A motion for summary judgment is unnecessary, and it is questionable whether such a motion is contemplated by the statute. This procedure, however, is commonly followed by the Secretary in eases of this nature. In any event, there was a full compliance with the statute in the findings of fact, conclusions of law, and judgment entered by the district court.
As this court said in United States v. Lalone, 9 Cir., 1945, 152 F.2d 43, “Under this section of the Social Security Act (42 U.S.C. § 405(g)) providing for appeals from an administrative board, as under other similar acts, the board’s findings of fact must be sustained if the court finds they are supported by substantial evidence. This same finality extends to the Board’s inferences and conclusions from the evidence if a substantial basis is found for them. * * * The board’s decisions interpreting the Act and regulations are entitled to weight; the board’s findings of fact, if supported by substantial evidence, are conclusive.”
The primary question for determination is whether there is substantial evidence to support the findings of the Secretary and the district court that appellant failed to sustain his burden of showing that he was “disabled” within the meaning of the Social Security Act on or before December 31, 1951, the last date of his insured status under the Act, and continuously thereafter to December 13, 1961, when his present application was filed. The test of “disability” is whether appellant was unable during that period “to engage in any substantial gainful activity by reason of any medi-eally determinable physical or mental impairment which can be expected to result in death or to be of long-continued and indefinite duration”, or “blindness”, (See note 2.)
Appellant graduated from high school and in 1919 completed a ten month course jn general accounting at a business col-iege. He was steadily employed in accounting work by one company between 1919 and January 1946 — at Fort Wayne, Indiana, from 1919 to 1928, at Vernon, California, from 1928 to 1945, and at Fort Wayne for four or five months in 1945 and January, 1946. He resigned because he couldn’t “stand the cold weather” in Fort Wayne and returned to California. He held a series of jobs be-tween 1946 and 1948, when he engaged in a primary campaign as a candidate for Congress.
Subsequent to the onset of the alleged disability in April, 1949, appellant worked in December, 1949, as a post office clerk; from May through July, 1951, as a COst accountant and timekeeper; in October, 1951, as a timekeeper; and in January and February, 1952, as a senior deputy assessor. Appellant testified that for “a while” after December, 1951, he went to the library “quite a lot” to read fiancial reports and magazines in conneetion with making investments; that he attempted to collect benefits from two insurance companies, acting as his own attorney in these cases, which were filed in 1956. In 1952 he engaged in a primary campaign as a candidate for Los Angeles County Supervisor, and in 1954 he again campaigned for Congress in the primary election. Appellant asserts that although he engaged in the foregoing activities, he did so while disabled.
In his application for a period of disability and disability benefits appellant described his impairment as “injury of prostate gland, causing feet and leg swelling and severe pain.” At his hearing he testified that he had been unable to do auditing or accounting work because of his eyes, his right eye being “practically blind”.
In appellant’s brief he refers specifically to a deposition of Dr. Aubrey H. Williams, given on February 18, 1957, in an action by appellant against an insurance company. Dr. Williams, a specialist in internal medicine, also made an affidavit dated November 23, 1956, and a report dated April 23,1957. All relate to an examination of appellant on May 20 to 22, 1949. Dr. Williams testified in his deposition that a proctoscopic examination revealed no abnormalities except a slight spasm in the rectum which he attributed to nervous tension. He found a slight enlargement of the prostate which was a normal development with age. He found no evidence of physical disease “which would interfere with him carrying on his usual occupation; emotionally he was so upset that for the time being he may not have been able to perform”. It was Dr. Williams’ opinion that appellant’s emotional state was probably of long standing, perhaps throughout his lifetime. His final diagnosis was obesity and “psychoneurosis mixed with superimposed acute anxiety with hypochondri-acal and paranoid features”. He did not believe this condition was in any way connected with any physical disability. In the report, in response to the question, “Have you advised applicant not to work?”, Dr. Williams answered, “No’.
Dr. John V. Pollock examined appellant on July 31, 1950. Appellant complained of urinary frequency, nocturia, impotence, and grittiness in his eyes. The physieal examination revealed that the left prostatic lobe was enlarged and mildly tender, and that the left vesicle was enlarged. Urological consultation and blood chemistry were advised,
Appellant was next seen by Dr. Pollock on July 24, 1953, when appellant called for an eye check. The eye examination showed corrected vision of 20/40 in the right eye and 20/30 in the left eye. Appellant was “approved for light duties”,
Dr. Warren A. Wilson, an ophthalmologist, examined appellant’s eyes on July io, 1956. Appellant complained that “both eyes were tearing but it was more marked on the right”. Dr. Wilson’s diagnosis was chronic blepharoconjunc-tivitis (inflammation of the eyelids and conjunctiva). He prescribed treatment and felt that appellant would have remissions and exacerbations of this condition. Dr. Wilson did not advise appellant not to work.
The only other medical report is that of a physician who examined appellant for the Veterans Administration on April 19, 1949. The examination revealed “a very boggy prostate”, and a smear showed “many pus cells”. The diagnosis was “prostatitis chronic”, and hospitalization was not recommended,
There is no substantial medical testimony to support appellant’s contention that he was disabled within the meaning 0f Social Security Act as a result of either the prostate or eye conditions,
Under the Act disability may re-suit from mental as well as physical impairment. In his examination in May, 1949, Dr. Williams found a “psychoneurosis mixed with superimposed acute anxiety with hypochondriacal and paranoid features.” He recommended psychiatric consultation.
The regulations relating to disability caused by mental impairment provide:
“In determining the effect of psychoneuroses, consideration is given whether the psychoneurosis has re-suited in severe social, personal and occupational regression or confinement to a mental hospital and whether it persists despite appropriate treatment. The manifestations of tension, anxiety, depression or psy-chophysiological disturbances, behavioral disturbances, hysterical reactions or obsessive compulsive patterns should be carefully described. An adequate psychiatric examination is generally necessary.” (20 C.F.R. § 404.1519(c) (ii)).
With reference to possible mental impairment, the Hearing Examiner’s Decision reads in part:
“In respect to his mental state, the claimant has on many occasions been requested to submit to psychiatric examination, but has consistently refused to do so, wishing to rely upon his physical impairments to obtain the various benefits he has sought. The opinion expressed by Dr. Williams in his deposition was that the claimant’s emotional state might keep him temporarily from working, but it is obvious in his answers to the questions in such deposition that he did not feel that it was of such continuing severity as to be of long-continued duration, particularly if appropriate therapy were employed.
“ * * * There is not in the record a definitive description of the various manifestations of the psychoneurosis, from which Dr. Williams diagnosed the claimant as suffering. In fact through the years, the claimant has resisted all attempts to have him examined psy-chiatrically, and has left the record void of the type of evidence contemplated by this regulation.”
We agree with the agency decision and the district court that the record would not support a finding of disability on the ground of mental impairment.
It is true, as appellant contends, that complete helplessness is not necessary to a finding of an allowable disability, that a claimant’s age, training and experience must be considered in determining what opportunities are open to him, and that sporadic and infrequent activities do not necessarily establish ability to engage in substantial gainful employment. Here, however, the Board could properly find that the prostate condition upon which appellant initially relied as the basis of his disability was “not shown to be so severe as to limit him in performing his usual sedentary occupation.” Under both the testimony regarding appellant’s activities and the medical testimony, the Secretary could also properly find that appellant had failed to establish a continuing disability within the meaning of the Act as a result of either his eye condition or psychoneurosis.
Relying upon King v. Flemming, 6 Cir. 1961, 289 F.2d 808 and cases there cited, appellant contends that there should have been an express finding with respect to what he could do and what employment opportunities were open to him. It is implicit in the Board’s decision that it found that appellant had failed to show that he was disabled from following his usual occupation as an accountant.
No useful purpose would be served by a discussion of the many cases cited by appellant. We have examined all of those cases where an agency finding was reversed. All of them are factually distinguishable.
The judgment is affirmed.
. In a previous claim filed on February 15, 1957, appellant sought to establish disability as of April 12, 1949. This claim was denied, and the denial was affirmed by final decision of a hearing examiner dated April 8, 1958. Appellant’s action for a review of that decision was dismissed on the ground that it was not timely filed.
. The term “disability” is defined as “ * * * (A) inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or to be of long-continued and indefinite duration, or (B) blindness; and the term ‘blindness’ means central visual acuity of 5/200 or less in the better eye with the use of a correcting lens. * * * ” (42 U.S.C. § 416(i) (1)).
. The Hearing Examiner’s Decision recites that appellant appeared to be entitled to the regular old-age pension starting February 5, 1962, except for the fact that he had not filed formal application as required by the Act and regulations. The right to old-age pension benefits was not determined by the district court and is not before this court.
. This does not mean that it was intended that the courts should abdicate their conventional juricial function to review (Universal Camera Corp. v. N. L. R. B., 1951, 340 U.S. 474, 490, 71 S.Ct. 456, 95 L.Ed. 456); and where the “administrative decision is based upon conclusions not reasonably reached upon due consideration of all the relevant issues presented” (Jacobson v. Folsom, S.D.N.Y. 1957, 158 F.Supp. 281, 285), or applies an arbitrary standard (Flemming v. Lindgren, 9 Cir.1960, 275 F.2d 596, 597), the court may properly reject the agency’s decision,
. Under the express terms of the Act a reasonable showing of permanence of the disability is required. Bradey v. Ribicoff, 4 Cir. 1962, 298 F.2d 855.
. These findings are required when it is found that the claimant is unable to engage in bis usual occupation, but the Secretary concludes that lie can perform services and duties other than those of his accustomed occupation. See Kerner v. Flemming, 2 Cir. 1960, 283 F.2d 916, and Hall v. Flemming, 6 Cir., 1961, 289 F.2d 290.
Question: Did the court's interpretation of the substantial evidence rule support the government? For example, "such evidence as a reasonable mind might accept as adequate to support a conclusion" or "more than a mere scintilla". This issue is present only when the court indicates that it is using this doctrine, rather than when the court is merely discussing the evidence to determine whether the evidence supports the position of the appellant or respondent.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_respond1_4_2
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "sub-state government (e.g., county, local, special district)". Your task is to determine which category of substate government best describes this litigant.
BOARD OF EDUCATION OF the CITY SCHOOL DISTRICT OF the CITY OF NEW YORK and Frank Macchiarola, Chancellor of the City School District of the City of New York, Plaintiffs-Appellees, v. Shirley M. HUFSTEDLER, Secretary of the United States Department of Education, Herman R. Goldberg, Associate Commissioner, Equal Educational Opportunity Programs, United States Department of Education, and Roma Stewart, Director of the Office for Civil Rights, United States Department of Education, Defendants-Appellants.
No. 248, Docket 80-6050.
United States Court of Appeals, Second Circuit.
Argued Dec. 1, 1980.
Decided Feb. 4, 1981.
Gregg M. Mashberg, New York City (Allen G. Schwartz, Corp. Counsel, Joseph F. Bruno, Asst. Corp. Counsel, New York City, on brief), for plaintiffs-appellees.
Richard P. Caro, Asst. U. S. Atty., Brooklyn, N. Y. (Drew S. Days III, Asst. Atty. Gen., Washington, D. C., Edward R. Korman, U. S. Atty., E. D. New York, Brooklyn, N. Y., Jill Laurie Goodman, U. S. Dept. of Education, New York City, on brief), for defendants-appellants.
Before OAKES and MESKILL, Circuit Judges, and WERKER, District Judge.
Of the Southern District of New York, sitting by designation.
OAKES, Circuit Judge:
This appeal is yet another chapter in the litigation between the Board of Education of the City School District of New York City and what is now the Department of Education over the latter’s declaration of the former’s ineligibility for funds under the Emergency School Aid Act of 1972 (ESAA), 20 U.S.C. §§ 1601-1619 (current version at 20 U.S.C. §§ 3191-3207). In the ESAA I litigation, the Supreme Court, in affirming this court’s affirmance of the district court, held that discriminatory impact rather than discriminatory intent is the standard by which ineligibility under ESAA is to be measured because to treat as ineligible only those applicants who intend to perpetuate racial isolation would defeat the stated objective of ESAA, which is to end de facto as well as de jure segregation. The Supreme Court also held that a prima facie case of discriminatory impact may be made with a proper statistical study. The ESAA I cases sustained the Department of Health, Education, and Welfare’s (HEW’s) denial of a Board of Education ESAA assistance application that related to a grant of some $3.5 million for the fiscal year 1977-1978. Before instituting the ESAA I litigation, the Board did apply, pursuant to 20 U.S.C. § 1605(d)(1) (current version at 20 U.S.C. § 3196(c)(1)), for a waiver of HEW’s ineligibility determination. But the ESAA I litigation did not concern that application for a waiver, even though HEW had denied the application within approximately one month of the date the Board filed the ESAA I litigation.
HEW also denied the Board’s initial application, and the Board’s application for a waiver of ineligibility, for some $2.36 million in ESAA funds for the following fiscal year, 1978-1979. In connection with those denials, the Board filed the ESAA II litigation, in which the district court affirmed HEW’s finding of ineligibility but subsequently remanded the waiver application to HEW. The trial court’s remand was affirmed by a two-to-one panel majority of this court, with a petition for rehearing en banc denied. In ESAA II the panel majority of this court took the view that HEW’s approval of a voluntary plan to remedy discrimination in the school district could be sufficient to warrant issuance of a waiver; this court rejected HEW’s contention that its regulations forbade granting a waiver until the school district achieved the final teacher assignment goals in the remedial plan. Thus in ESAA II this court upheld the district court’s requirement that HEW issue a waiver upon a demonstration that the applicant has ceased its disqualifying activity and has provided acceptable assurances that such conduct will not reoccur. The court’s remand to HEW for a redetermination of the waiver application in connection with the 1978-1979 ESAA funds is still pending.
Encouraged by its success in ESAA II on the waiver application question with respect to fiscal 1978-1979, the Board filed this litigation, ESAA III, seeking to overturn the denial of its application for a waiver of HEW’s determination of ineligibility for fiscal year 1977-1978 funds — the ineligibility determination upheld in ESAA I. The United States District Court for the Eastern District of New York, Jack B. Weinstein, Judge, held for the Board of Education below, Board of Education v. Harris, 79 Civ. 3222 (E.D.N.Y. Feb. 21, 1980). Upon a trial on the merits under Federal Rule of Civil Procedure 65(a)(2), and upon the records in the earlier cases and in a related case, the district court granted the Board’s application for a declaration that HEW’s denial of the Board’s 1977-1978 fiscal year waiver application was improper and inconsistent with the governing federal statute. The court then remanded the waiver application for de novo consideration consistent with ESAA II, and ordered that the original approximately $3.5 million earmarked for the school district for the 1977-1978 fiscal year be preserved and set aside, pending reconsideration of the Board’s waiver application. We affirm.
DISCUSSION
On appeal the Department of Education makes two points. The first one, and a very simple one it is, is that this court erroneously decided ESAA II or, to put it euphemistically, that HEW’s denial of the Board’s application for a waiver for the 1978-1979 funds was not inconsistent with the statute. The answer to this contention is as simple as the point made. A panel of this court is bound by a previous panel’s opinion, until the decision is overruled en banc or by the Supreme Court. Although the author of this opinion dissented vehemently in ESAA II, he was unable to attract sufficient support from the active judges on the court of appeals for a rehearing en banc. Therefore, unless the Supreme Court grants certiorari and overturns ESAA II, that decision is the law of the circuit and we are bound to follow it. This does not mean that on remand, the Department of Education is bound by any factual determinations that it may make in the course of deciding the pending ESAA II remand concerning the Board’s application for a waiver for the 1978-1979 fiscal year funds. After all, the application for a waiver for 1977-1978 was made before the parties entered into the voluntary Memorandum of Understanding, which was the basis of the ESAA II litigation. But the principles of law stated by this court in ESAA II are binding, and under those principles neither the statute nor the regulations permit the denial of an application for a waiver on the ground that the effects of prior discrimination persist. Thus as a matter of law, the district court properly remanded to the Department of Education the Board’s application for a waiver for 1977-1978.
The second contention of the Department of Education is that the present action is barred by the final judgment in ESAA I — in other words, that as a matter of res judicata, the judgment sustaining the denial of the Board’s initial application for ESAA funds bars an action concerning the denial of the Board’s subsequent application for a waiver of the ineligibility determination. The question is whether the Board is merely asserting “a new ground for recovery,” see Brown v. Felsen, 442 U.S. 127, 133, 99 S.Ct. 2205, 2210, 60 L.Ed.2d 767 (1979). In this regard the Department of Education is correct that res judicata generally prevents litigation of “all grounds for, or defenses to, recovery that were previously available to the parties, regardless of whether they were asserted or determined in the prior proceeding,” id. at 131, 99 S.Ct. at 2209 (citing Chicot County Drainage District v. Baxter State Bank, 308 U.S. 371, 378, 60 S.Ct. 317, 320, 84 L.Ed. 329 (1940)). The Department of Education argues that because the Board could readily have asserted in the ESAA I litigation the claim that its application for a waiver was improperly denied, it cannot now make that assertion. The heart of the Department of Education’s argument is the further contention that because ESAA I and this case involve the same funds, the claims for relief are necessarily the same.
In Herendeen v. Champion International Corp., 525 F.2d 130 (2d Cir. 1975), this court held that even though the same parties or their privies had been involved in a prior suit, there was not in that second suit the requisite identity of causes of action to call into play the doctrine of res judicata. We said in that diversity action that the proper criteria — most frequently cited by both this court and the New York courts — are
whether a different judgment in the second action would impair or destroy rights or interests established by the judgment entered in the first action, whether the same evidence is necessary to maintain the second cause of action as was required in the first, and whether the essential facts and issues in the second were present in the first.
Id. at 133-34 (footnotes omitted). The fact that the new cause of action could have been joined with the cause of action asserted in the earlier case was not found to be determinative. Id. at 135.
We think that the test outlined in Herendeen is applicable here. And applying that test to this case, we hold that res judicata does not bar litigation of HEW’s denial of the Board’s application for a waiver of ineligibility with respect to the 1977-1978 fiscal year funds. Congress has established two possible ways in which a school district can receive ESAA funds — by an initial application for the funds or by an application for a waiver of a denial of the initial application. See 20 U.S.C. § 1605(d)(1) (current version at 20 U.S.C. § 3196(c)(1)). In this case the Board is not seeking to redress the same injury that it sought to redress in ESAA I, which was the initial denial of the $3.5 million grant. Instead, the Board is seeking relief here from the denial of a waiver of that initial ineligibility determination. It is true that many of the same facts are in evidence in both cases, but the essence of ESAA I was the denial of the initial grant application, a denial based on a determination of ineligibility. The essence of the instant case, on the other hand, is the denial of the later-filed application for a waiver of ineligibility. A school district that is eligible for funds does not, of course, need a waiver; an applicant seeking a waiver concedes ineligibility for purposes of the waiver application. In these cases the finding of ineligibility based on discrimination turned on factors süch as the racial distribution of faculty among different schools in the district, see ESAA I litigation, while the determination whether to grant a waiver, at least under the ESAA II case, turns on factors such as the likelihood of faculty transfers meeting the goals set out in the Memorandum of Understanding and the good faith of the Board of Education in seeking to implement the remedial program embodied in that agreement.
The statutory scheme, as noted above, provides two distinct means of obtaining ESAA funds. As a matter of fair and equitable implementation of the law, it may be said that the sense of the statutory scheme is that a board of education should be permitted to litigate separately claims relating to denial of an initial application and claims relating to the denial of a waiver, see Restatement (Second) of Judgments § 61.2(l)(d) (Tent.Draft No. 5, 1978).
Judgment affirmed.
. Board of Educ. v. Harris, 444 U.S. 130, 100 S.Ct. 363, 62 L.Ed.2d 275 (1979), aff’g sub nom. Board of Educ. v. Califano, 584 F.2d 576 (2d Cir. 1978), aff’g 77 Civ. 1928 (E.D.N.Y. Apr. 18, 1978) (ESAA I).
. Id. at 151-52, 100 S.Ct. at 375.
. Board of Educ. v. Califano, 464 F.Supp. 1114 (E.D.N.Y. 1979) (ESAA II).
. Board of Educ. v. Harris, 622 F.2d 599 (2d Cir.), rehearing en banc denied, 622 F.2d 619 (2d Cir. 1979), cert. denied,-U.S.-, 101 S.Ct. 940, 67 L.Ed.2d 110 (1981) (ESAA II).
. Id. at 609-10.
. The district court considered the record in the related case of Caulfield v. Board of Educ., 486 F.Supp. 862 (E.D.N.Y. 1979), which was later affirmed, 632 F.2d 999 (2d Cir. 1980).
. 622 F.2d at 612.
. Note 1 supra.
. See notes 3 and 4 supra.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "sub-state government (e.g., county, local, special district)". Which category of substate government best describes this litigant?
A. legislative
B. executive/administrative
C. bureaucracy providing services
D. bureaucracy in charge of regulation
E. bureaucracy in charge of general administration
F. judicial
G. other
Answer:
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sc_authoritydecision
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the bases on which the Supreme Court rested its decision with regard to the legal provision that the Court considered in the case. Consider "judicial review (national level)" if the majority determined the constitutionality of some action taken by some unit or official of the federal government, including an interstate compact. Consider "judicial review (state level)" if the majority determined the constitutionality of some action taken by some unit or official of a state or local government. Consider "statutory construction" for cases where the majority interpret a federal statute, treaty, or court rule; if the Court interprets a federal statute governing the powers or jurisdiction of a federal court; if the Court construes a state law as incompatible with a federal law; or if an administrative official interprets a federal statute. Do not consider "statutory construction" where an administrative agency or official acts "pursuant to" a statute, unless the Court interprets the statute to determine if administrative action is proper. Consider "interpretation of administrative regulation or rule, or executive order" if the majority treats federal administrative action in arriving at its decision.Consider "diversity jurisdiction" if the majority said in approximately so many words that under its diversity jurisdiction it is interpreting state law. Consider "federal common law" if the majority indicate that it used a judge-made "doctrine" or "rule; if the Court without more merely specifies the disposition the Court has made of the case and cites one or more of its own previously decided cases unless the citation is qualified by the word "see."; if the case concerns admiralty or maritime law, or some other aspect of the law of nations other than a treaty; if the case concerns the retroactive application of a constitutional provision or a previous decision of the Court; if the case concerns an exclusionary rule, the harmless error rule (though not the statute), the abstention doctrine, comity, res judicata, or collateral estoppel; or if the case concerns a "rule" or "doctrine" that is not specified as related to or connected with a constitutional or statutory provision. Consider "Supreme Court supervision of lower federal or state courts or original jurisdiction" otherwise (i.e., the residual code); for issues pertaining to non-statutorily based Judicial Power topics; for cases arising under the Court's original jurisdiction; in cases in which the Court denied or dismissed the petition for review or where the decision of a lower court is affirmed by a tie vote; or in workers' compensation litigation involving statutory interpretation and, in addition, a discussion of jury determination and/or the sufficiency of the evidence.
CALIFORNIA v. CIRAOLO
No. 84-1513.
Argued December 10, 1985
Decided May 19, 1986
Burger, C. J., delivered the opinion of the Court, in which White, Rehnquist, Stevens, and O’Connor, JJ., joined. Powell, J., filed a ■dissenting opinion, in which Brennan, Marshall, and Blackmun, JJ., joined, post, p. 215.
Laurence K. Sullivan, Deputy Attorney General of California, argued the cause for petitioner. With him on the briefs were John K. Van de Kamp, Attorney General, Steve White, Chief Assistant Attorney General, and Eugene W. Raster, Deputy Attorney General.
Marshall Warren Rrause, by appointment of the Court, 472 U. S. 1025, argued the cause for respondent. With him on the brief was Pamela Holmes Duncan.
Briefs of amici curiae urging reversal were filed for the State of Indiana et al. by Linley E. Pearson, Attorney General of Indiana, William E. Daily and Lisa M. Paunicka, Deputy Attorneys General, Charles A. Graddick, Attorney General of Alabama, Charles M. Oberly, Attorney General of Delaware, Michael J. Bowers, Attorney General of Georgia, Neil F. Hartigan, Attorney General of Illinois, Robert T. Stephan, Attorney General of Kansas, David L. Armstrong, Attorney General of Kentucky, William J. Guste, Jr., Attorney General of Louisiana, James E. Tierney, Attorney General of Maine, Francis X. Bellotti, Attorney General of Massachusetts, William L. Webster, Attorney General of Missouri, Robert M. Spire, Attorney General-Designate of Nebraska, Brian McKay, Attorney General of Nevada, Stephen E. Merrill, Attorney General of New Hampshire, Paul Bardacke, Attorney General of New Mexico, Anthony Celebrezze, Attorney General of Ohio, LeRoy S. Zimmerman, Attorney General of Pennsylvania, Travis Medlock, Attorney General of South Carolina, Jeffrey Amestoy, Attorney General of Vermont, Gerald L. Baliles, Attorney General of Virginia, Kenneth O. Eikenberry, Attorney General of Washington, and Archie G. McClintock, Attorney General of Wyoming; for Americans for Effective Law Enforcement Inc. et al. by Fred E. Inbau, Wayne W. Schmidt, James P. Manak, David Crump, and Daniel B. Hales; for the Criminal Justice Legal Foundation by Christopher N. Heard; and for the Washington Legal Foundation by Daniel J. Popeo and George C. Smith.
Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by C. Douglas Floyd, Alan L. Schlosser, and Charles S. Sims; for the Civil Liberties Monitoring Project by Amitai Schwartz; and for the National Association of Criminal Defense Lawyers by John Kenneth Zwerling.
Chief Justice Burger
delivered the opinion of the Court.
We granted certiorari to determine whether the Fourth Amendment is violated by aerial observation without a warrant from an altitude of 1,000 feet of a fenced-in backyard within the curtilage of a home.
I
On September 2, 1982, Santa Clara Police received an anonymous telephone tip that marijuana was growing in respondent’s backyard. Police were unable to observe the contents of respondent’s yard from ground level because of a 6-foot outer fence and a 10-foot inner fence completely enclosing the yard. Later that day, Officer Shutz, who was assigned to investigate, secured a private plane and flew over respondent’s house at an altitude of 1,000 feet, within navigable airspace; he was accompanied by Officer Rodriguez. Both officers were trained in marijuana identification. From the overflight, the officers readily identified marijuana plants 8 feet to 10 feet in height growing in a 15- by 25-foot plot in respondent’s yard; they photographed the area with a standard 35mm camera.
On September 8, 1982, Officer Shutz obtained a search warrant on the basis of an affidavit describing the anonymous tip and their observations; a photograph depicting respondent’s house, the backyard, and neighboring homes was attached to the affidavit as an exhibit. The warrant was executed the next day and 73 plants were seized; it is not disputed that these were marijuana.
After the trial court denied respondent’s motion to suppress the evidence of the search, respondent pleaded guilty to a charge of cultivation of marijuana. The California Court of Appeal reversed, however, on the ground that the warrantless aerial observation of respondent’s yard which led to the issuance of the warrant violated the Fourth Amendment. 161 Cal. App. 3d 1081, 208 Cal. Rptr. 93 (1984). That court held first that respondent’s backyard marijuana garden was within the “curtilage” of his home, under Oliver v. United States, 466 U. S. 170 (1984). The court emphasized that the height and existence of the two fences constituted “objective criteria from which we may conclude he manifested a reasonable expectation of privacy by any standard.” 161 Cal. App. 3d, at 1089, 208 Cal. Rptr., at 97.
Examining the particular method of surveillance undertaken, the court then found it “significant” that the flyover “was not the result of a routine patrol conducted for any other legitimate law enforcement or public safety objective, but was undertaken for the specific purpose of observing this particular enclosure within [respondent’s] curtilage.” Ibid. It held this focused observation was “a direct and unauthorized intrusion into the sanctity of the home” which violated respondent’s reasonable expectation of privacy. Id., at 1089-1090, 208 Cal. Rptr., at 98 (footnote omitted). The California Supreme Court denied the State’s petition for review.
We granted the State’s petition for certiorari, 471 U. S. 1134 (1985). We reverse.
The State argues that respondent has “knowingly exposed” his backyard to aerial observation, because all that was seen was visible to the naked eye from any aircraft flying overhead. The State analogizes its mode of observation to a knothole or opening in a fence: if there is an opening, the police may look.
The California Court of Appeal, as we noted earlier, accepted the analysis that unlike the casual observation of a private person flying overhead, this flight was focused specifically on a small suburban yard, and was not the result of any routine patrol overflight. Respondent contends he has done all that can reasonably be expected to tell the world he wishes to maintain the privacy of his garden within the curtilage without covering his yard. Such covering, he argues, would defeat its purpose as an outside living area; he asserts he has not “knowingly” exposed himself to aerial views.
II
The touchstone of Fourth Amendment analysis is whether a person has a “constitutionally protected reasonable expectation of privacy.” Katz v. United States, 389 U. S. 347, 360 (1967) (Harlan, J., concurring). Katz posits a two-part inquiry: first, has the individual manifested a subjective expectation of privacy in the object of the challenged search? Second, is society willing to recognize that expectation as reasonable? See Smith v. Maryland, 442 U. S. 735, 740 (1979).
Clearly — and understandably — respondent has met the test of manifesting his own subjective intent and desire to maintain privacy as to his unlawful agricultural pursuits. However, we need not address that issue, for the State has not challenged the finding of the California Court of Appeal that respondent had such an expectation. It can reasonably be assumed that the 10-foot fence was placed to conceal the marijuana crop from at least street-level views. So far as the normal sidewalk traffic was concerned, this fence served that purpose, because respondent “took normal precautions to maintain his privacy.” Rawlings v. Kentucky, 448 U. S. 98, 105 (1980).
Yet a 10-foot fence might not shield these plants from the eyes of a citizen or a policeman perched on the top of a truck or a two-level bus. Whether respondent therefore manifested a subjective expectation of privacy from all observations of his backyard, or whether instead he manifested merely a hope that no one would observe his unlawful gardening pursuits, is not entirely clear in these circumstances. Respondent appears to challenge the authority of government to observe his activity from any vantage point or place if the viewing is motivated by a law enforcement purpose, and not the result of a casual, accidental observation.
We turn, therefore, to the second inquiry under Katz, i. e., whether that expectation is reasonable. In pursuing this inquiry, we must keep in mind that “[t]he test of legitimacy is not whether the individual chooses to conceal assertedly ‘private’ activity,” but instead “whether the government’s intrusion infringes upon the personal and societal values protected by the Fourth Amendment.” Oliver, supra, at 181-183.
Respondent argues that because his yard was in the curtilage of his home, no governmental aerial observation is permissible under the Fourth Amendment without a warrant. The history and genesis of the curtilage doctrine are instructive. “At common law, the curtilage is the area to which extends the intimate activity associated with the ‘sanctity of a man’s home and the privacies of life.’” Oliver, supra, at 180 (quoting Boyd v. United States, 116 U. S. 616, 630 (1886)). See 4 Blackstone, Commentaries *225. The protection afforded the curtilage is essentially a protection of families and personal privacy in an area intimately linked to the home, both physically and psychologically, where privacy expectations are most heightened. The claimed area here was immediately adjacent to a suburban home, surrounded by high double fences. This close nexus to the home would appear to encompass this small area within the curtilage. Accepting, as the State does, that this yard and its crop fall within the curtilage, the question remains whether naked-eye observation of the curtilage by police from an aircraft lawfully operating at an altitude of 1,000 feet violates an expectation of privacy that is reasonable.
That the area is within the curtilage does not itself bar all police observation. The Fourth Amendment protection of the home has never been extended to require law enforcement officers to shield their eyes when passing by a home on public thoroughfares. Nor does the mere fact that an individual has taken measures to restrict some views of his activities preclude an officer’s observations from a public vantage point where he has a right to be and which renders the activities clearly visible. E. g., United States v. Knotts, 460 U. S. 276, 282 (1983). “What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.” Katz, supra, at 351.
The observations by Officers Shutz and Rodriguez in this case took place within public navigable airspace, see 49 U. S. C. App. §1304, in a physically nonintrusive manner; from this point they were able to observe plants readily discernible to the naked eye as marijuana. That the observation from aircraft was directed at identifying the plants and the officers were trained to recognize marijuana is irrelevant. Such observation is precisely what a judicial officer needs to provide a basis for a warrant. Any member of the public flying in this airspace who glanced down could have seen everything that these officers observed. On this record, we readily conclude that respondent’s expectation that his garden was protected from such observation is unreasonable and is not an expectation that society is prepared to honor.
The dissent contends that the Court ignores Justice Harlan’s warning in his concurrence in Katz v. United States, 389 U. S., at 361-362, that the Fourth Amendment should not be limited to proscribing only physical intrusions onto private property. Post, at 215-216. But Justice Harlan’s observations about future electronic developments and the potential for electronic interference with private communications, see Katz, supra, at 362, were plainly not aimed at simple visual observations from a public place. Indeed, since Katz the Court has required warrants for electronic surveillance aimed at intercepting private conversations. See United States v. United States District Court, 407 U. S. 297 (1972).
Justice Harlan made it crystal clear that he was resting on the reality that one who enters a telephone booth is entitled to assume that his conversation. is not being intercepted. This does not translate readily into a rule of constitutional dimensions that one who grows illicit drugs in his backyard is “entitled to assume” his unlawful conduct will not be observed by a passing aircraft — or by a power company repair mechanic on a pole overlooking the yard. As Justice Harlan emphasized,
“a man’s home is, for most purposes, a place where he expects privacy, but objects, activities, or statements that he exposes to the ‘plain view’ of outsiders are not ‘protected’ because no intention to keep them to himself has been exhibited. On the other hand, conversations in the open would not be protected against being overheard, for the expectation of privacy under the circumstances would be unreasonable.” Katz, supra, at 361.
One can reasonably doubt that in 1967 Justice Harlan considered an aircraft within the category of future “electronic” developments that could stealthily intrude upon an individual’s privacy. In an age where private and commercial flight in the public airways is routine, it is unreasonable for respondent to expect that his marijuana plants were constitutionally protected from being observed with the naked eye from an altitude of 1,000 feet. The Fourth Amendment simply does not require the police traveling in the public airways at this altitude to obtain a warrant in order to observe what is visible to the naked eye.
Reversed.
Because the parties framed the issue in the California courts below and in this Court as concerning only the reasonableness of aerial observation generally, see Pet. for Cert, i, without raising any distinct issue as to the photograph attached as an exhibit to the affidavit in support of the search warrant, our analysis is similarly circumscribed. It was the officer’s observation, not the photograph, that supported the warrant. Officer Shutz testified that the photograph did not identify the marijuana as such because it failed to reveal a “true representation” of the color of the plants: “you have to see it with the naked eye.” App. 36.
The California Court of Appeal recognized that police have the right to use navigable airspace, but made a pointed distinction between police aircraft focusing on a particular home and police aircraft engaged in a “routine patrol.” It concluded that the officers’ “focused” observations violated respondent’s reasonable expectations of privacy. In short, that court concluded that a regular police patrol plane identifying respondent’s marijuana would lead to a different result. Whether this is a rational distinction is hardly relevant, although we find difficulty understanding exactly how respondent’s expectations of privacy from aerial observation might differ when two airplanes pass overhead at identical altitudes, simply for different purposes. We are cited to no authority for this novel analysis or the conclusion it begat. The fact that a ground-level observation by police “focused” on a particular place is not different from a “focused” aerial observation under the Fourth Amendment.
In Dow Chemical Co. v. United States, post, p. 227, decided today, we hold that the use of an aerial mapping camera to photograph an industrial manufacturing complex from navigable airspace similarly does not require a warrant under the Fourth Amendment. The State acknowledges that “[ajerial observation of curtilage may become invasive, either due to physical intrusiveness or through modern technology which discloses to the senses those intimate associations, objects or activities otherwise imperceptible to police or fellow citizens.” Brief for Petitioner 14-15.
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_summary
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on the appropriateness of summary judgment or the denial of summary judgment 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".
Edward A. TAYLOR and Dorothy E. Taylor et al., Plaintiffs-Appellees, v. B. HELLER AND COMPANY, Defendant-Appellant.
No. 16571.
United States Court of Appeals Sixth Circuit.
Aug. 17, 1966.
A. M. Sebastian, Columbus, Ohio (Sebastian, Fais & Durst, Columbus, Ohio, on the brief), for appellant.
Barton W. Blair, Jr., Mount Vernon, Ohio, and Gordon K. Bolon, Columbus, Ohio (Applegate, Bolon, Boyd & Alban, Columbus, Ohio, Blair & Turner, Mt. Vernon, Ohio, on the brief), for appellees.
Before WEICK, Chief Judge, PHILLIPS, Circuit Judge, and CECIL, Senior Circuit Judge.
WEICK, Chief Judge.
Edward A. Taylor and his mother, Dorothy E. Taylor, the plaintiffs in this case, owned and operated the unincorporated A. C. Taylor Packing Company as a family proprietorship after the death of its founder in 1957. They inherited the business from its founder, who was their father and husband respectively. The Packing Company was engaged in a general meat packing business, preparing and selling various meat products, including bologna, wieners and luncheon meats, in Mt. Vernon, Ohio. Defendant, B. Heller and Company, an Illinois corporation located in Chicago, is in the business of supplying seasoning and spices to the meat packing industry in general.
Plaintiffs commenced to use defendant’s seasoning in their processing of wieners in January, 1958, and experienced no difficulty between the months of January and June, 1958. It was during the summer of 1958 when problems occurred.
On or about June 17, 1958 the plaintiffs purchased a sealed 300-pound drum of defendant’s “Premier German Style Frank & Wiener Seasoning No. 1026”, and began using the seasoning in preparing and packing its wieners on or about July 23, 1958. Shortly thereafter plaintiffs began to experience severe problems of spoilage with their wieners. Within twenty-four to forty-eight hours after manufacture, the wieners sent to retailers or restaurants turned sour or rancid and became unfit for sale. Plaintiffs conducted a series of tests to determine the cause of this spoilage, but were unable to isolate the source of the trouble until October 27, 1958, when it was found by the Ohio Department of Agriculture that the drum of spices purchased from B. Heller and Company was contaminated by an excessive amount of bacteria. The drum was embargoed and later destroyed.
No wieners produced after the removal of the Heller spices, spoiled. In addition, bologna produced with a different process at the Taylor plant during the period of wiener spoilage, did not spoil, although bologna is composed of the same ingredients as wieners, with the single exception of the special wiener seasoning.
After the incident of the extensive product spoilage, plaintiffs allege a severe drop in sales of all of their meats due to loss of public confidence in their reputation for wholesomeness. After sustaining operating losses in 1958 and 1959, A. C. Taylor Packing Company went into receivership on December 31, 1959, and its assets were subsequently sold by the receiver for about $25,000. Plaintiffs sued Heller for damages in the Common Pleas Court of Knox County, Ohio, for the spoilage of wieners during the summer of 1958, and for loss of profits of its business which it claimed was destroyed as a result of such meat spoilage. Nineteen thousand four hundred pounds of wieners spoiled, of which two hundred pounds spoiled because of bad flanks. The case was removed to the District Court because of diversity of citizenship, and was tried before the Court without a jury. The Court adopted findings of fact and conclusions of law and awarded plaintiffs a judgment for $48,786, of which $8,786 was for the spoiled wieners, and $40,000 was for the business destroyed by defendant’s negligence. From this judgment defendant now appeals.
At the trial the evidence was conflicting as to the type of contamination found in the drum of seasoning and its probable effect on the wieners. There was considerable controversy on the crucial issue of causation, defendant claiming that the manufacturing methods and unsanitary conditions at plaintiffs’ packing plant were to blame for the spoilage rather than the defective seasoning.
The trial court found the defendant guilty of negligence per se in the sale of adulterated food products in violation of Ohio Revised Code Sections 3715.59 and 3715.52, and further found as a matter of fact that the destruction of the business of A. C. Taylor Packing Company was the direct result of the production of spoiled wieners. While there were seriously disputed issues of fact with respect to the exact causes of the spoilage and of the business failure, we are of the opinion that plaintiffs’ evidence, if believed, was sufficient to support findings in their favor on the question of defendant’s liability.
We are of the opinion, however, that plaintiffs should have offered some proof as to the wholesomeness of the meat which they used in producing the spoiled wieners.
It is our further judgment that the evidence offered by defendant with respect to the production of wieners at Caven & Son’s packing plant at Conover, Ohio, using defendant’s seasoning, was relevant and competent on the issue whether proper control of the temperature of the meat would have prevented spoilage. It was error to exclude such evidence.
We will now consider the questions relating to the award of damages. In both plaintiffs’ petition and amended petition, recovery was sought only for loss of profits. The District Court made no findings of fact with respect to profits or loss of profits. He did find, however, that the reasonable market value of the Packing Company prior to July, 1958 was $65,000, and after October, 1958 it was only $25,000. He found that the value of the spoiled wieners was $8,786.
The physical assets of the Packing Company consisted of land, buildings, plant, and equipment. In addition it had accounts receivable and good will. While the sale of spoiled wieners by the Packing Company to the public would undoubtedly result in loss of business and profits, it was not established just how this would damage the physical assets of the Packing Company.
The law of Ohio, which governs in this diversity action, recognizes the action for damages for destruction of a business as measured by the difference between the value of the business before and after the injury or destruction. Bishop v. East Ohio Gas Co., 41 Ohio Law Abst. 353 (Cuyahoga County Ct. App. 1943), rev’d on other grounds, 143 Ohio St. 541, 56 N.E.2d 164 (1944). See also Zimmerman v. Isaly Dairy Co., 165 Ohio St. 354, 135 N.E.2d 338 (1956). The Bishop case states the applicable rule for damages as one based on past profits, .while the Zimmerman case allows damages for reasonably certain future profits which are not speculative. However, in the present case, as in Bishop and Zimmerman, the real relevance of the past profits of the destroyed business is for computation of the value of the business as a going concern, through the capitalization of past earnings at an appropriate rate.
The only evidence offered by plaintiffs as to the value of the A. C. Taylor Packing Company before and after the use of the contaminated seasoning in the wieners, was the testimony of Dr. John T. Bonner, Jr., an expert witness, on valuation. Dr. Bonner was Executive Dean of Student Relations at Ohio State University. No questions were raised as to Dr. Bonner’s general qualifications as an appraiser and business consultant, but there are serious questions as to the competency of his testimony in this case and of the exhibits upon which his testimony was based.
According to Dr. Bonner’s appraisal, the value of the Packing Company before damage to its reputation was $65,000, and afterward, as of January, 1960, its value had declined to $25,000, a difference of $40,000. His appraisal was based on three factors: (1) Amount of insurance carried by the Packing Company at the time; (2) An appraisal of the company made by the Industrial Appraisal Co. in 1956, and (3) Annual profit and loss statements of the Packing Company from 1950 through 1959. Dr. Bonner did not view either the plant or equipment, nor did he examine any of the Packing Company’s books or records, except the profit and loss statements and the 1956 appraisal.
While several other factors were cited by Dr. Bonner, it is clear that he used them only to determine whether or not the drop in business suffered by plaintiffs could have been attributable to national or local business conditions in general in the meat packing industry, rather than to the negligence of the defendant. Certainly statistics as to the number of animals slaughtered nationally, or the dollar value of meat products consumed by the typical family, can have no probative value as to the value of one particular firm doing a specific business in one locale. Thus the only conceivably relevant evidence cited by Dr. Bonner as the basis of his evaluation was the profit and loss statements, the outside appraisal of 1956, and the insurance coverage.
The purported use of the insurance coverage as a basis for evaluation, needs little discussion. The testimony of an expert witness must be predicated upon facts offered in evidence at the trial and assumed true for his purposes in a hypothetical question. However, there is no evidence of insurance in the record here and no attempt was made to include this factor in a question posed to Dr. Bonner at the trial. For this reason alone, any part of his opinion based on the insurance factor would be inadmissible,
Further, the insurance coverage of the business, even if correctly proved at the trial, would have a minimal probative value in determining the worth of the going concern or “income stream” destroyed by defendant’s negligence. The amount of insurance carried by the owner is usually indicative of replacement values for the fixed assets and inventory of the concern, rather than the value of the business as a going concern capable of earning profits annually.
Dr. Bonner also relied on an appraisal of the A. C. Taylor Packing Company prepared by The Industrial Appraisal Company of Pittsburgh, Pennsylvania, dated October 1,1956. This appraisal set a “sound insurable value” of $99,418 on the Taylor properties on that date. The District Court in its findings overruled defendant’s objection to admitting this document (Plaintiffs’ Ex. 13). Plaintiffs claim that the appraisal was properly admitted under the Federal Business Records Act, 28 U.S.C. § 1732.
Regardless of whether or not this appraisal falls within the definitions of the statute, see Standard Oil Co. of California v. Moore, 251 F.2d 188 (9th Cir. 1957), cert. denied, 356 U.S. 975, 78 S.Ct. 1139, 2 L.Ed.2d 1148 (1958), its admissibility depends in part upon a proper foundation before its introduction. Bisno v. United States, 299 F.2d 711 (9th Cir. 1961), cert. denied, 370 U.S. 952, 82 S.Ct. 1602, 8 L.Ed.2d 818 (1962), rehearing denied, 371 U.S. 855, 83 S.Ct. 51, 9 L.Ed.2d 94 (1962); Martini Hairdressers, Inc. v. Potomac Beauty Supply Co., 203 A.2d 200 (D.C.App.1964).
Since the exception to the hearsay rule granted by this statute is predicated upon the supposed reliability of records made in the ordinary routine of business, it is essential that they be shown to have been the product of such routine. In this ease, no attempt was made to show this crucial fact.
Even if this defect were not fatal to the introduction of the appraisal, Dr. Bonner’s use of the appraisal clearly contravenes the rule that expert opinion may not be based upon the opinion of others, either in evidence or not in evidence. Zelenka v. Industrial Comm’n, 165 Ohio St. 587, 138 N.E.2d 667 (1956); Manufacturers’ Acc. Indem. Co. v. Dorgan, 58 F. 945, 22 L.R.A. 620 (6th Cir. 1893). This exclusionary rule must extend to the use of the appraisal because the appraisal is the opinion of some unidentified third parties as to the insurable value of the real estate and equipment of the A. C. Taylor Packing Company. The appraisal form itself describes the document as an opinion. Thus, Dr. Bonner’s opinion of the value of the going concern was based, not upon facts proved at the trial, but upon the opinion of others who were not even qualified as experts, nor present at the trial. This is error under Ohio law and under Rule 43(a) of Federal Rules, which rule authorizes, although it does not always compel, the use of state law on this point. Zelenka v. Industrial Comm’n, supra; Horn v. Commonwealth Life Ins. Co., 118 Ohio App. 375, 194 N.E.2d 892 (1963).
Finally, it is important to note that the appraisal, even if admissible, could have had little value as a basis for Dr. Bonner’s opinion since it was strictly limited to a “cost of reproduction new” analysis of the real estate and assets of the A. C. Taylor Packing Co. and so bore little, if any, rational relationship to the income stream which the business created.
Dr. Bonner himself stated that “this is not the valuation of the business” (Rec. 262). The appraisal was aimed solely at ascertaining the amount of insurance to be placed on the buildings and equipment and did not relate to the valuation of a going concern.
As the Bishop case, supra, states, the proper method of valuing a business to determine injury is the capitalization of the business’ earnings over a reasonable period.
The sole remaining evidence cited by Dr. Bonner as a basis for his opinion was the series of profit and loss statements over a ten-year period showing the annual net income or loss of the Packing Company, from 1950 through 1959. These statements would have served as a correct basis for evaluation if they had been properly made and used in accord with the rules set out in Bishop; that is, if provision had been made for reasonable compensation for services rendered by the proprietors of the business before calculating the earnings, and if the results for each year had been weighed so as to accord the most weight to the most recent years.
Neither of these rules was followed, although the plaintiffs cite Bishop as authority for their valuation methods. Unless compensation for management is deducted as expense, the income statements do not accurately reflect the inherent value of the business itself as a going concern and cannot be considered relevant evidence.
In addition, the relevance of the income statements is vitally affected by their age; that is, the farther they depart from the present time, the more likely they are to reflect conditions which no longer obtain. The Bishop rule balanced the need for a full sampling of annual reports against the danger of irrelevance due to age, by requiring that the most recent reports be given extra weight in calculating an average earnings base for capitalization purposes.
In this case that danger is even stronger since the death of the company’s founder in 1957 introduced a drastic change in management of the business, a key factor in any small family proprietorship. Thus it was important that the earnings-base reflect the operation of the business which was actually destroyed, that is, the one operated by the plaintiffs, not the one operated by their predecessor, father and husband. On this point it is interesting to note that the business began to lose money in 1957, after the elder Taylor’s death and before the spoilage incident. Dr. Bonner gave no indication of having taken these important factors into account in his valuation of the business.
Thus, although the profit and loss statements could well have served as the basis of a relevant valuation of the business if correctly used under the Bishop rule, they were not so used by Dr. Bonner and his testimony must be deemed incompetent.
In addition to Dr. Bonner’s confusion of the asset valuation theory with the capitalization of earnings method in his testimony, it appears that he also was mathematically inaccurate by a substantial margin in his calculations of the median and average net annual profits of the Packing Company. At page 247 of the record he stated that the median profit for the period 1950-1959 was “nearly $11,000 per year.” The correct figure, if all ten years, including loss years, are used, is approximately $5,000. If only the profit years, 1950-1956, are considered, the median is still only approximately $7,000. In 1953 a net profit of $14,662.48 was reported. However this was the only year among all ten in which the actual reported net profit was in excess of Dr. Bonner’s supposed median; all other years were below the $11,000-figure which Dr. Bonner cited.
Further, at page 260 of the record Dr. Bonner estimated that the average net annual profit was $7,800. The correct figure, if all ten years including loss years are included, is $1,395.80. If only the gain years are included the figure is still only $7,376.51. Of course the proper period is the full ten-year cycle, not just the gain years when the Packing Company was under different management.
Furthermore, Dr. Bonner’s evaluation of the business as of January, 1960, in the amount of $25,000, coincided with the approximate amount for which the receiver sold the assets. Dr. Bonner testified that he based his appraisal on consideration of the receivership, on an analysis of the profit and loss statements, and on his experience as an appraiser. In our opinion, since Dr. Bonner was appraising the value of the assets after the plant had ceased operations, he should have based his appraisal on the market value of the assets and not on what they sold for at forced sale by the receiver.
For these reasons the judgment of the District Court is reversed and the cause remanded with instructions to grant a new trial.
Question: Did the court's ruling on the appropriateness of summary judgment or the denial of summary judgment favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_abusedis
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in civil law issues involving government actors. The issue is: "Did the court conclude that it should defer to agency discretion? For example, if the action was committed to agency discretion. 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".
DICKINSON SUPPLY, INCORPORATED, a Domestic Corporation, Appellant, v. MONTANA-DAKOTA UTILITIES CO., a Foreign Corporation, Appellee. DICKINSON SUPPLY, INCORPORATED, a Domestic Corporation, Appellee, v. MONTANA-DAKOTA UTILITIES CO., a Foreign Corporation, Appellant.
Nos. 19723, 19756.
United States Court of Appeals, Eighth Circuit.
March 13, 1970.
Rehearing Denied in No. 19723 March 30, 1970.
John L. Sherman, of Mackoff, Kellogg, Kirby & Kloster, Dickinson, N.D., for Dickinson Supply, Inc.
Albert A. Wolf, of Wolf, Glaser & Milhollan, Bismarck, N.D., for Montana-Dakota Utilities Co.
Before MATTHES, GIBSON and LAY, Circuit Judges.
LAY, Circuit Judge.
This is a diversity case. Plaintiff Dickinson Supply, Inc. appeals from an adverse jury verdict rendered on its claim, arising from extensive damage to its building resulting from a fire and explosion. Suit was brought against the defendant Montana-Dakota Utilities Co., who supplied natural gas to plaintiff’s building in March 1966. Plaintiff claimed that there was a natural gas explosion and fire caused by defendant’s negligence. In a second count, plaintiff asserted that after the fire commenced, defendant carelessly and negligently failed to shut off the natural gas flowing into the building thereby contributing to its damage. A verdict was returned for the defendant on both counts. The basic issue on appeal concerns the trial court’s refusal to allow the plaintiff to impeach its own witness. We affirm the judgment below.
The fire occurred on March 5, 1966, in Dickinson, North Dakota. Defendant’s gas service man, Ray Foreman, gave the following testimony: at approximately 11:00 a.m., upon hearing the fire siren, he went immediately to Dickinson Supply, Inc.; his duty was to shut off the gas going through the Dickinson Supply plant; he shut off one meter within fifteen or twenty minutes after he arrived; and shortly thereafter he shut off the gas going to the boiler.'
An attempt was then made to prove that Foreman had failed to turn the gas off, contrary to his testimony. Plaintiff called Laudie Kudrna as a witness. He was an employee of the defendant utility company. However, on the day of the fire he was serving as a volunteer fireman with the Dickinson Fire Department. Plaintiff expected Kudrna to testify that in the late afternoon he had returned to the scene of the fire and that he and another fireman found a gas pipe which was broken at the fitting. Plaintiff further expected Kudrna to say that he capped this pipe since gas was still coming from it. Thus, plaintiff’s theory was that defendant was careless in failing to shut off the gas supply on the premises, thereby contributing to the fire damage which ensued.
Plaintiff claims that Kudrna gave the above details in a statement to the State Chief Deputy Fire Marshal on March 16, 1966, eleven days after the fire. Trial was held in December 1968. When Kudrna was called to testify, he could not recall finding a broken gas pipe or talking to another fireman about gas escaping into the building. He specifically denied capping or fixing a broken gas pipe during the course of the fire.
Plaintiff proved that Kudrna’s signature was appended to plaintiff’s Exhibit No. 4, which was a statement produced from the official file of the North Dakota State Fire Marshal. Kudrna admitted the authenticity of his signature but could not recall giving any written statement to the State Fire Marshal or his deputies. Objection was then made by the defendant that plaintiff was seeking to impeach his own witness. Thereafter the proceedings were removed to the court’s chambers out of the presence of the jury. The witness, Kudrna, was then asked about the specific statements in plaintiff’s Exhibit No. 4. He denied giving a written statement to anyone, and specifically denied the truth of the contents of plaintiff’s Exhibit No. 4.
Clifford A. Ness, Jr. was then called, also out of the presence of the jury. He testified that he was employed as a Deputy Fire Marshal of the State of North Dakota and that he had helped investigate the particular fire in question. He related that on March 16, 1966, he took several oral statements of witnesses and then reduced their statements to typewritten or longhand form. He then asked the witnesses to read their statements and sign them. He said he affixed his signature as a witness on Exhibit No. 4. He did not specifically recall taking the statement of Laudie Kudrna. Some of the facts on the statement were familiar to him, including the portion that Kudrna capped the gas line. He remembered someone told him this. It is significant that the transcript reflects the following questions to Ness and his corresponding answers:
“Q. That information that a man by the name of Kudrna had capped a gas line, allegedly, was information you received from other sources on your first trip to Dickinson, right?
“A. Yes.
“Q. But you don’t have any recollection that you received that information from this man (Kudrna), right?
“A. No.”
The trial court court ruled that, based upon its prior knowledge of Exhibit 4, plaintiff had shown sufficient surprise to impeach the witness. However, the court ruled that no prejudice had resulted from Kudrna’s direct testimony, and that under this circumstance, no impeachment could take place. Cf. Randazzo v. United States, 300 F. 794, 797-798 (8 Cir. 1924).
Plaintiff now claims that the district court erred in refusing to allow further cross-examination of Kudrna with the prior inconsistent statement. Plaintiff also asserts that said statement should have been received as substantive evidence of past recollection recorded and that it also constitutes an admission against interest of Kudrna’s employer, Montana-Dakota Utilities Co.
We find that the district court’s restriction as to further use of the statement for impeachment was not prejudicial to plaintiff.
We have considered the testimony given by Kudrna in the court’s chambers. He denied making the statements contained in plaintiff’s Exhibit No. 4. Proof of the authenticity of the witness’ signature on a statement containing factual information allegedly given to another party does not, by itself, establish a sufficient foundation for the admissibility of the statement into evidence. It was incumbent upon plaintiff to prove, by the person taking the statement, that Kudrna actually made the remarks attributed to him. McCormick, Evidence § 37 (1954). Here, this essential proof was wanting. In fact, Ness, the Deputy Fire Marshal, who allegedly took the statement, denied any recollection of hearing Kudrna make any of the statements contained in Exhibit No. 4. Significantly, Ness related that the impeaching fact (capping a gas line) was information he learned from sources other than Kudrna.
In conclusion, and assuming arguendo that plaintiff was hurt by Kudrna’s affirmative testimony (That he did not cap any gas pipe) we find no prejudice in the trial court’s ruling as to further use of Exhibit No. 4 to impeach the witness. On the basis of plaintiff’s offered proof, a foundation could not be laid to show that Kudrna ever made the statement in question. Plaintiff later called as a witness Jim Christensen, another fireman. He testified that at the scene of the fire he had pointed out a broken pipe to Kudrna, and that Kudrna had said he would cap it. In the absence of actual proof that Kudrna himself had made the statements in plaintiff’s Exhibit No. 4, Christensen’s testimony was the only evidence by which plaintiff could attempt to neutralize Kudrna’s prior testimony. Under these circumstances we find no error in the trial court’s ruling.
CROSS APPEAL ON COSTS
Defendant has cross appealed from the denial of its application and motion for extension of time for taxation costs. J udgment for the defendant was entered on December 16, 1968. On December 27, 1968, costs were taxed in the sum of $15.00 in favor of the defendant. On January 2, 1969, defendant filed its motion for retaxation of costs to assess its actual costs of $635.51.
Rule XXIV of the Rules of Procedure of the United States District Court for North Dakota provides that within ten days after the notice of entry of judgment allowing costs, the prevailing party shall serve on the attorney for the adverse party and file with the clerk, an application for taxation of costs. The rule also provides that upon failure to comply with the rule, all costs shall be waived save the clerk’s costs. Rule 54(d) of the Federal Rules of Civil Procedure reads:
“Except when express provision therefor is made either in a statute of the United States or in these rules, costs shall be allowed as of course to the prevailing party unless the court otherwise directs; but costs against the United States, its officers, and agencies shall be imposed only to the extent permitted by law. Costs may be taxed by the clerk on one day’s notice. On motion served within 5 days thereafter, the action of the clerk may be reviewed by the court.”
Defendant asserts that the clerk of the district court taxed costs of $15.00 eleven days after entry of judgment without the one day’s notice to defendant as provided under Rule 54(d). Defendant maintains that the local rule contravenes Rule 54(d).
The district court may promulgate local rules of court not inconsistent with the federal rules of civil procedure. Fed.R.Civ.P. 83. Such rules may reasonably implement the federal rules of civil procedure. The district court’s local rule did nothing more. The rule, in effect, gave ten days notice rather than just one day, that all costs, other than the clerk’s costs which may be inserted in the judgment without application, would be waived. Defendant failed to heed this notice and the court rule provided waiver of further costs. The rule was designed to bring finality to the litigation and, under the circumstances, we deem it reasonable and proper. It was within the district court’s discretion as to whether the defendant might otherwise have the costs retaxed. On the basis of the record, we cannot say that the. district court abused its discretion in denying defendant’s motion to retax the costs. Cf. Woods Construction Co. v. Atlas Chemical Industries, Inc., 337 F.2d 888 (10 Cir. 1964).
The judgment of the district court is affirmed.
. Use of the statement as past recollection recorded must fail for several reasons. First and foremost, the witness, although denying present recollection of the events, specifically denied the truth of the statement. It is also clear that the statement was not recorded contemporaneously with the event. See McCormick, Evidence § 9 (1954). See also Goings v. United States, 377 F.2d 753, 760 n. 8 (8 Cir. 1967).
. The trial court found the witness, Kudrna, was acting in his capacity as a fireman at tire time of the fire. The statement contained in plaintiff’s Exhibit No. 4, even if true, does not represent facts told by the witness within the scope of the defendant’s employment nor does the statement relate to conduct Kudrna carried on as an employee of the defendant. Under these circumstances the statement could not reflect admissions against the interest of the defendant.
. Christensen was not sure whether the pipe he saw was used for gas or water.
Question: Did the court conclude that it should defer to agency discretion? For example, if the action was committed to agency discretion.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
sc_respondent
|
113
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the respondent of the case. The respondent is the party being sued or tried and is also known as the appellee. Characterize the respondent as the Court's opinion identifies them.
Identify the respondent by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer.
Also note that the Court's characterization of the parties applies whether the respondent is actually single entitiy or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single respondent, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name.
WISCONSIN DEPARTMENT OF INDUSTRY, LABOR AND HUMAN RELATIONS et al. v. GOULD INC.
No. 84-1484.
Argued December 9, 1985
Decided February 26, 1986
Blackmun, J., delivered the opinion for a unanimous Court.
Charles D. Hoornstra, Assistant Attorney General of Wisconsin, argued the cause for appellants. With him on the briefs was Bronson C. La Follette, Attorney General.
Columbus R. Gangemi, Jr., argued the cause for appellee. With him on the brief were George B. Christensen, Gerald C. Peterson, Paul B. Biebel, Jr., and John N. Bilanko.
Briefs of amici curiae urging reversal were filed for the State of Connecticut by Joseph I. Lieberman, Attorney General, Elliot F. Gerson, Deputy Attorney General, and Arnold B. Feigin, Richard T. Sponzo, and Robert E. Walsh, Assistant Attorneys General; for the National Governors’ Association et al. by Benna Ruth Solomon and Peter J. Kalis; and for the American Federation of Labor and Congress of Industrial Organizations by Marsha Berzon, David M. Silberman, and Laurence Gold.
Briefs of amici curiae urging affirmance were filed for the National Labor Relations Board by Norton J. Come, Linda Sher, and Elinor Had-ley Stillman; for the Chamber of Commerce of the United States by Peter G. Nash, Dixie L. Atwater, and Stephen A. Bokat.
Justice Blackmun
delivered the opinion of the Court.
The question in this case is whether the National Labor Relations Act (NLRA), 29 U. S. C. §151 et seq., pre-empts a Wisconsin statute debarring certain repeat violators of the Act from doing business with the State. We hold that it does.
I
Wisconsin has directed its Department of Industry, Labor and Human Relations to maintain a list of every person or firm found by judicially enforced orders of the National Labor Relations Board to have violated the NLRA in three separate cases within a 5-year period. See Wis. Stat. § 101.245 (1983-1984). State procurement agents are statutorily forbidden to purchase “any product known to be manufactured or sold by any person or firm included on the list of labor law violators.” §16.75(8). A name remains on the violators’ list for three years. § 101.245(4).
Appellee Gould Inc. is a Delaware corporation with its principal place of business in Illinois. In 1982, Wisconsin placed Gould on its list of labor law violators following the judicial enforcement of four Board orders against various divisions of the company, none of which was located in Wisconsin and none of which Gould still owned at the time of its debarment. The State informed Gould that it would enter into no new contract with the company until 1985. The State also announced that it would continue its current contracts with Gould only as long as necessary to avoid contractual penalties, and that while Gould was on the list the State would not purchase products containing components produced by the company. At the time, Gould held state contracts worth over $10,000, and had outstanding bids for additional contracts in excess of $10,000.
Gould filed this action for injunctive and declaratory relief, arguing that the Wisconsin debarment scheme was preempted by the NLRA and violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment. The United States District Court for the Western District of Wisconsin granted Gould summary judgment on the preemption claim, and did not reach the arguments pertaining to the Fourteenth Amendment. 576 F. Supp. 1290 (1983). The court enjoined the defendant state officials from refusing to do business with Gould, from refusing to purchase products with Gould components, and from including Gould on the fist of labor law violators. Id., at 1299; App. to Juris. Statement 86, 87. The Court of Appeals for the Seventh Circuit affirmed in relevant part. 750 F. 2d 608 (1984). We noted probable jurisdiction, 471 U. S. 1115 (1985). As did the District Court and the Court of Appeals, we find it necessary to reach only the pre-emption issue.
II
It is by now a commonplace that in passing the NLRA Congress largely displaced state regulation of industrial relations. Although some controversy continues over the Act’s pre-emptive scope, certain principles are reasonably settled. Central among them is the general rule set forth in San Diego Building Trades Council v. Garmon, 359 U. S. 236 (1959), that States may not regulate activity that the NLRA protects, prohibits, or arguably protects or prohibits. Because “conflict is imminent” whenever “two separate remedies are brought to bear on the same activity,” Garner v. Teamsters, 346 U. S. 485, 498-499 (1953), the Garmon rule prevents States not only from setting forth standards of conduct inconsistent with the substantive requirements of the NLRA, but also from providing their own regulatory or judicial remedies for conduct prohibited or arguably prohibited by the Act. See 359 U. S., at 247. The rule is designed to prevent “conflict in its broadest sense” with the “complex and interrelated federal scheme of law, remedy, and administration,” id., at 243, and this Court has recognized that “[c]onflict in technique can be fully as disruptive to the system Congress erected as conflict in overt policy.” Motor Coach Employees v. Lockridge, 403 U. S. 274, 287 (1971).
Consequently, there can be little doubt that the NLRA would prevent Wisconsin from forbidding private parties within the State to do business with repeat labor law violators. Like civil damages for picketing, which the Court refused to allow in Garmon, a prohibition against in-state private contracts would interfere with Congress’ “integrated scheme of regulation” by adding a remedy to those prescribed by the NLRA. 359 U. S., at 247. Nor does it matter that a supplemental remedy is different in kind from those that may be ordered by the Board, for “judicial concern has necessarily focused on the nature of the activities which the States have sought to regulate, rather than on the method of regulation adopted.” Id., at 243; Lockridge, 403 U. S., at 292. Indeed, “to allow the State to grant a remedy . . . which has been withheld from the National Labor Relations Board only accentuates the danger of conflict,” Garmon, 359 U. S., at 247, because “the range and nature of those remedies that are and are not available is a fundamental part” of the comprehensive system established by Congress. Lockridge, 403 U. S., at 287.
Wisconsin does not assert that it could bar its residents from doing business with repeat violators of the NLRA. It contends, however, that the statutory scheme invoked against Gould escapes pre-emption because it is an exercise of the State’s spending power rather than its regulatory power. But that seems to us a distinction without a difference, at least in this case, because on its face the debarment statute serves plainly as a means of enforcing the NLRA. The State concedes, as we think it must, that the point of the statute is to deter labor law violations and to reward “fidelity to the law.” Tr. of Oral Arg. 4, 6; Brief for Defendants in Support of Motion for Summary Judgment in No. 83-C-1045, (WD Wis.), p. 18. No other purpose could credibly be ascribed, given the rigid and undiscriminating manner in which the statute operates: firms adjudged to have violated the NLRA three times are automatically deprived of the opportunity to compete for the State’s business.
Because Wisconsin’s debarment law functions unambiguously as a supplemental sanction for violations of the NLRA, it conflicts with the Board’s comprehensive regulation of industrial relations in precisely the same way as would a state statute preventing repeat labor law violators from doing any business with private parties within the State. Moreover, if Wisconsin’s debarment law is valid, nothing prevents other States from taking similar action against labor law violators. Indeed, at least four other States already have passed legislation disqualifying repeat or continuing offenders of the NLRA from competing for state contracts. Each additional statute incrementally diminishes the Board’s control over enforcement of the NLRA and thus further detracts from the “integrated scheme of regulation” created by Congress.
That Wisconsin has chosen to use its spending power rather than its police power does not significantly lessen the inherent potential for conflict when “two separate remedies are brought to bear on the same activity,” Garner, 346 U. S., at 498-499. To uphold the Wisconsin penalty simply because it operates through state purchasing decisions therefore would make little sense. “It is the conduct being regulated, not the formal description of governing legal standards, that is the proper focus of concern.” Lockridge, 403 U. S., at 292.
Ill
Wisconsin notes correctly that state action in the nature of “market participation” is not subject to the restrictions placed on state regulatory power by the Commerce Clause. See White v. Massachusetts Council of Constr. Employers, Inc., 460 U. S. 204 (1983); Reeves, Inc. v. Stake, 447 U. S. 429 (1980); Hughes v. Alexandria Scrap Corp., 426 U. S. 794 (1976). We agree with the Court of Appeals, however, that by flatly prohibiting state purchases from repeat labor law violators Wisconsin “simply is not functioning as a private purchaser of services,” 750 F. 2d, at 614; for all practical purposes, Wisconsin’s debarment scheme is tantamount to regulation.
In any event, the “market participant” doctrine reflects the particular concerns underlying the Commerce Clause, not any general notion regarding the necessary extent of state power in areas where Congress has acted. In addition to authorizing congressional action, the Commerce Clause limits state action in the absence of federal approval. The Clause restricts “state taxes and regulatory measures impeding free private trade in the national marketplace,” but “[t]here is no indication of a constitutional plan to limit the ability of the States themselves to operate freely in the free market.” Reeves, 447 U. S., at 437. The NLRA, in contrast, was designed in large part to' “entrus[t] administration of the labor policy for the Nation to a centralized administrative agency.” Garmon, 359 U. S., at 242; see also, e. g., NLRB v. Nash-Finch Co., 404 U. S. 138, 145 (1971) (“The Board is the sole protector of the ‘national interest’ defined with particularity in the Act”) (footnote omitted). What the Commerce Clause would permit States to do in the absence of the NLRA is thus an entirely different question from what States may do with the Act in place. Congressional purpose is of course “ ‘the ultimate touchstone’” of pre-emption analysis, see, e. g., Allis-Chalmers Corp. v. Lueck, 471 U. S. 202, 208 (1985), quoting Retail Clerks v. Schermerhorn, 375 U. S. 96, 103 (1963), and we cannot believe that Congress intended to allow States to interfere with the “interrelated federal scheme of law, remedy, and administration,” Garmon, 359 U. S., at 243, under the NLRA as long as they did so through exercises of the spending power.
Nothing in the NLRA, of course, prevents private purchasers from boycotting labor law violators. But government occupies a unique position of power in our society, and its conduct, regardless of form, is rightly subject to special restraints. Outside the area of Commerce Clause jurisprudence, it is far from unusual for federal law to prohibit States from making spending decisions in ways that are permissible for private parties. See, e. g., Elrod v. Burns, 427 U. S. 347 (1976); Perry v. Sindermann, 408 U. S. 593 (1972). The NLRA, moreover, has long been understood to protect a range of conduct against state but not private interference. See, e. g., Machinists v. Wisconsin Employment Relations Comm’n, 427 U. S. 132, 148-151 (1976); Teamsters v. Morton, 377 U. S. 252, 259-260 (1964); Cox, Labor Law Preemption Revisited, 85 Harv. L. Rev. 1337, 1346, 1351-1359 (1972). The Act treats state action differently from private action not merely because they frequently take different forms, but also because in our system States simply are different from private parties and have a different role to play.
We do not say that state purchasing decisions may never be influenced by labor considerations, any more than the NLRA prevents state regulatory power from ever touching on matters of industrial relations. Doubtless some state spending policies, like some exercises of the police power, address conduct that is of such “peripheral concern” to the NLRA, or that implicates “interests so deeply rooted in local feeling and responsibility,” that pre-emption should not be inferred. Garmon, 359 U. S., at 243-244; see also, e. g., Belknap, Inc. v. Hale, 463 U. S. 491, 498 (1983). And some spending determinations that bear on labor relations were intentionally left to the States by Congress. See New York Tel. Co. v. New York State Labor Dept., 440 U. S. 519 (1979). But Wisconsin’s debarment rule clearly falls into none of these categories. We are not faced here with a statute that can even plausibly be defended as a legitimate response to state procurement constraints or to local economic needs, or with a law that pursues a task Congress intended to leave to the States. The manifest purpose and inevitable effect of the debarment rule is to enforce the requirements of the NLRA. That goal may be laudable, but it assumes for the State of Wisconsin a role Congress reserved exclusively for the Board.
The judgment of the Court of Appeals is affirmed.
It is so ordered.
Section 101.245 provides in relevant part:
“(1) The department [of industry, labor and human relations] shall maintain a list of persons or firms that have been found by the national labor relations board, and by 3 different final decisions of a federal court within a 5-year period as determined under sub. (lm), if the 3 final decisions involved a cumulative finding of at least three separate violations, to have violated the national labor relations act, 29 U. S. C. 151 et seq., and of persons or firms that have been found to be in contempt of court for failure to correct a violation of the national labor relations act on 3 or more occasions by a court within a 5-year period as determined under sub. (lm) if the 3 contempt findings involved a cumulative total of at least 3 different violations.
“(lm) On or before July 1 of each year the department shall compile the list required under sub. (1) based upon the 5-year period which ended on September 30 of the year preceding.
“(2) This list may be compiled from the records of the national labor relations board.
“(3) Whenever a new name is added to this list the department shall send the name to the department of administration for actions as provided in s. 16.75(8).
“(4) A name shall remain on the list for 3 years.”
The statute was enacted as 1979 Wis. Laws, ch. 340, § 3. It became effective May 21, 1980.
Section 16.75(8) provides in relevant part:
“The department [of administration] shall not purchase any product known to be manufactured or sold by any person or firm included on the list of labor law violators compiled by the department of industry, labor and human relations under s. 101.245. The secretary may waive this subsection if maintenance, repair or operating supplies are required to maintain systems or equipment which were purchased by the state from a person or firm included on the list prior to the date of inclusion on the list, or if the secretary finds that there exists an emergency which threatens the public health, safety or welfare and a waiver is necessary to meet the emergency.”
We are advised that the statutory ban applies only to purchases by the State and not to purchasing decisions of counties, municipalities, or other political subdivisions of the State. Tr. of Oral Arg. 4.
In addition to disqualifying repeat violators of the NLRA, Wisconsin provides statutory preferences to bids from Wisconsin companies, minority businesses, employers of disabled workers, and prison industries. See Wis. Stat. §§ 16.75(1)(a), (3m)(b), (3s)(a), and (3t)(c) (1983-1984).
The original complaint also sought monetary damages, but Gould apparently abandoned this request in its motion and briefs for summary judgment. See 576 F. Supp. 1290, 1293, n. 3 (WD Wis. 1983).
Although Gould’s debarment was scheduled to end in 1985, Wisconsin does not contend that the case is moot. At a minimum, the problem presented is “capable of repetition, yet evading review.” E. g., Dunn v. Blumstein, 405 U. S. 330, 333, n. 2 (1972); Moore v. Ogilvie, 394 U. S. 814, 816 (1969); Southern Pacific Terminal Co. v. ICC, 219 U. S. 498, 515 (1911).
The complaint named as defendants three state agencies, including the Department of Industry, Labor and Human Relations, and four state officials. The District Court dismissed the agency defendants under the Eleventh Amendment but, pursuant to Ex parte Young, 209 U. S. 123 (1908), allowed the suit to proceed against the state officials. 576 F. Supp., at 1293. Gould did not appeal the dismissal of the agency defendants, and they appear in this Court only as nominal parties under the Court’s Rule 10.4.
The conflict between the challenged debarment statute and the NLRA is made all the more obvious by the essentially punitive rather than corrective nature of Wisconsin’s supplemental remedy. The regulatory scheme established for labor relations by Congress is “essentially remedial,” and the Board is not generally authorized to impose penalties solely for the purpose of deterrence or retribution. Republic Steel Corp. v. NLRB, 311 U. S. 7, 10-12 (1940). Wisconsin’s debarment sanction, in contrast, functions as punishment and serves no corrective purpose. Punitive sanctions are inconsistent not only with the remedial philosophy of the NLRA, but also in certain situations with the Act’s procedural logic. For example, the Board’s certification of a bargaining representative is
Question: Who is the respondent of the case?
001. attorney general of the United States, or his office
002. specified state board or department of education
003. city, town, township, village, or borough government or governmental unit
004. state commission, board, committee, or authority
005. county government or county governmental unit, except school district
006. court or judicial district
007. state department or agency
008. governmental employee or job applicant
009. female governmental employee or job applicant
010. minority governmental employee or job applicant
011. minority female governmental employee or job applicant
012. not listed among agencies in the first Administrative Action variable
013. retired or former governmental employee
014. U.S. House of Representatives
015. interstate compact
016. judge
017. state legislature, house, or committee
018. local governmental unit other than a county, city, town, township, village, or borough
019. governmental official, or an official of an agency established under an interstate compact
020. state or U.S. supreme court
021. local school district or board of education
022. U.S. Senate
023. U.S. senator
024. foreign nation or instrumentality
025. state or local governmental taxpayer, or executor of the estate of
026. state college or university
027. United States
028. State
029. person accused, indicted, or suspected of crime
030. advertising business or agency
031. agent, fiduciary, trustee, or executor
032. airplane manufacturer, or manufacturer of parts of airplanes
033. airline
034. distributor, importer, or exporter of alcoholic beverages
035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked
036. American Medical Association
037. National Railroad Passenger Corp.
038. amusement establishment, or recreational facility
039. arrested person, or pretrial detainee
040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association
041. author, copyright holder
042. bank, savings and loan, credit union, investment company
043. bankrupt person or business, or business in reorganization
044. establishment serving liquor by the glass, or package liquor store
045. water transportation, stevedore
046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines
047. brewery, distillery
048. broker, stock exchange, investment or securities firm
049. construction industry
050. bus or motorized passenger transportation vehicle
051. business, corporation
052. buyer, purchaser
053. cable TV
054. car dealer
055. person convicted of crime
056. tangible property, other than real estate, including contraband
057. chemical company
058. child, children, including adopted or illegitimate
059. religious organization, institution, or person
060. private club or facility
061. coal company or coal mine operator
062. computer business or manufacturer, hardware or software
063. consumer, consumer organization
064. creditor, including institution appearing as such; e.g., a finance company
065. person allegedly criminally insane or mentally incompetent to stand trial
066. defendant
067. debtor
068. real estate developer
069. disabled person or disability benefit claimant
070. distributor
071. person subject to selective service, including conscientious objector
072. drug manufacturer
073. druggist, pharmacist, pharmacy
074. employee, or job applicant, including beneficiaries of
075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan
076. electric equipment manufacturer
077. electric or hydroelectric power utility, power cooperative, or gas and electric company
078. eleemosynary institution or person
079. environmental organization
080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer.
081. farmer, farm worker, or farm organization
082. father
083. female employee or job applicant
084. female
085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of
086. fisherman or fishing company
087. food, meat packing, or processing company, stockyard
088. foreign (non-American) nongovernmental entity
089. franchiser
090. franchisee
091. lesbian, gay, bisexual, transexual person or organization
092. person who guarantees another's obligations
093. handicapped individual, or organization of devoted to
094. health organization or person, nursing home, medical clinic or laboratory, chiropractor
095. heir, or beneficiary, or person so claiming to be
096. hospital, medical center
097. husband, or ex-husband
098. involuntarily committed mental patient
099. Indian, including Indian tribe or nation
100. insurance company, or surety
101. inventor, patent assigner, trademark owner or holder
102. investor
103. injured person or legal entity, nonphysically and non-employment related
104. juvenile
105. government contractor
106. holder of a license or permit, or applicant therefor
107. magazine
108. male
109. medical or Medicaid claimant
110. medical supply or manufacturing co.
111. racial or ethnic minority employee or job applicant
112. minority female employee or job applicant
113. manufacturer
114. management, executive officer, or director, of business entity
115. military personnel, or dependent of, including reservist
116. mining company or miner, excluding coal, oil, or pipeline company
117. mother
118. auto manufacturer
119. newspaper, newsletter, journal of opinion, news service
120. radio and television network, except cable tv
121. nonprofit organization or business
122. nonresident
123. nuclear power plant or facility
124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels
125. shareholders to whom a tender offer is made
126. tender offer
127. oil company, or natural gas producer
128. elderly person, or organization dedicated to the elderly
129. out of state noncriminal defendant
130. political action committee
131. parent or parents
132. parking lot or service
133. patient of a health professional
134. telephone, telecommunications, or telegraph company
135. physician, MD or DO, dentist, or medical society
136. public interest organization
137. physically injured person, including wrongful death, who is not an employee
138. pipe line company
139. package, luggage, container
140. political candidate, activist, committee, party, party member, organization, or elected official
141. indigent, needy, welfare recipient
142. indigent defendant
143. private person
144. prisoner, inmate of penal institution
145. professional organization, business, or person
146. probationer, or parolee
147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer
148. public utility
149. publisher, publishing company
150. radio station
151. racial or ethnic minority
152. person or organization protesting racial or ethnic segregation or discrimination
153. racial or ethnic minority student or applicant for admission to an educational institution
154. realtor
155. journalist, columnist, member of the news media
156. resident
157. restaurant, food vendor
158. retarded person, or mental incompetent
159. retired or former employee
160. railroad
161. private school, college, or university
162. seller or vendor
163. shipper, including importer and exporter
164. shopping center, mall
165. spouse, or former spouse
166. stockholder, shareholder, or bondholder
167. retail business or outlet
168. student, or applicant for admission to an educational institution
169. taxpayer or executor of taxpayer's estate, federal only
170. tenant or lessee
171. theater, studio
172. forest products, lumber, or logging company
173. person traveling or wishing to travel abroad, or overseas travel agent
174. trucking company, or motor carrier
175. television station
176. union member
177. unemployed person or unemployment compensation applicant or claimant
178. union, labor organization, or official of
179. veteran
180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL)
181. wholesale trade
182. wife, or ex-wife
183. witness, or person under subpoena
184. network
185. slave
186. slave-owner
187. bank of the united states
188. timber company
189. u.s. job applicants or employees
190. Army and Air Force Exchange Service
191. Atomic Energy Commission
192. Secretary or administrative unit or personnel of the U.S. Air Force
193. Department or Secretary of Agriculture
194. Alien Property Custodian
195. Secretary or administrative unit or personnel of the U.S. Army
196. Board of Immigration Appeals
197. Bureau of Indian Affairs
198. Bonneville Power Administration
199. Benefits Review Board
200. Civil Aeronautics Board
201. Bureau of the Census
202. Central Intelligence Agency
203. Commodity Futures Trading Commission
204. Department or Secretary of Commerce
205. Comptroller of Currency
206. Consumer Product Safety Commission
207. Civil Rights Commission
208. Civil Service Commission, U.S.
209. Customs Service or Commissioner of Customs
210. Defense Base Closure and REalignment Commission
211. Drug Enforcement Agency
212. Department or Secretary of Defense (and Department or Secretary of War)
213. Department or Secretary of Energy
214. Department or Secretary of the Interior
215. Department of Justice or Attorney General
216. Department or Secretary of State
217. Department or Secretary of Transportation
218. Department or Secretary of Education
219. U.S. Employees' Compensation Commission, or Commissioner
220. Equal Employment Opportunity Commission
221. Environmental Protection Agency or Administrator
222. Federal Aviation Agency or Administration
223. Federal Bureau of Investigation or Director
224. Federal Bureau of Prisons
225. Farm Credit Administration
226. Federal Communications Commission (including a predecessor, Federal Radio Commission)
227. Federal Credit Union Administration
228. Food and Drug Administration
229. Federal Deposit Insurance Corporation
230. Federal Energy Administration
231. Federal Election Commission
232. Federal Energy Regulatory Commission
233. Federal Housing Administration
234. Federal Home Loan Bank Board
235. Federal Labor Relations Authority
236. Federal Maritime Board
237. Federal Maritime Commission
238. Farmers Home Administration
239. Federal Parole Board
240. Federal Power Commission
241. Federal Railroad Administration
242. Federal Reserve Board of Governors
243. Federal Reserve System
244. Federal Savings and Loan Insurance Corporation
245. Federal Trade Commission
246. Federal Works Administration, or Administrator
247. General Accounting Office
248. Comptroller General
249. General Services Administration
250. Department or Secretary of Health, Education and Welfare
251. Department or Secretary of Health and Human Services
252. Department or Secretary of Housing and Urban Development
253. Interstate Commerce Commission
254. Indian Claims Commission
255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement
256. Internal Revenue Service, Collector, Commissioner, or District Director of
257. Information Security Oversight Office
258. Department or Secretary of Labor
259. Loyalty Review Board
260. Legal Services Corporation
261. Merit Systems Protection Board
262. Multistate Tax Commission
263. National Aeronautics and Space Administration
264. Secretary or administrative unit of the U.S. Navy
265. National Credit Union Administration
266. National Endowment for the Arts
267. National Enforcement Commission
268. National Highway Traffic Safety Administration
269. National Labor Relations Board, or regional office or officer
270. National Mediation Board
271. National Railroad Adjustment Board
272. Nuclear Regulatory Commission
273. National Security Agency
274. Office of Economic Opportunity
275. Office of Management and Budget
276. Office of Price Administration, or Price Administrator
277. Office of Personnel Management
278. Occupational Safety and Health Administration
279. Occupational Safety and Health Review Commission
280. Office of Workers' Compensation Programs
281. Patent Office, or Commissioner of, or Board of Appeals of
282. Pay Board (established under the Economic Stabilization Act of 1970)
283. Pension Benefit Guaranty Corporation
284. U.S. Public Health Service
285. Postal Rate Commission
286. Provider Reimbursement Review Board
287. Renegotiation Board
288. Railroad Adjustment Board
289. Railroad Retirement Board
290. Subversive Activities Control Board
291. Small Business Administration
292. Securities and Exchange Commission
293. Social Security Administration or Commissioner
294. Selective Service System
295. Department or Secretary of the Treasury
296. Tennessee Valley Authority
297. United States Forest Service
298. United States Parole Commission
299. Postal Service and Post Office, or Postmaster General, or Postmaster
300. United States Sentencing Commission
301. Veterans' Administration
302. War Production Board
303. Wage Stabilization Board
304. General Land Office of Commissioners
305. Transportation Security Administration
306. Surface Transportation Board
307. U.S. Shipping Board Emergency Fleet Corp.
308. Reconstruction Finance Corp.
309. Department or Secretary of Homeland Security
310. Unidentifiable
311. International Entity
Answer:
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songer_direct1
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B
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What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for the defendant. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards.
Manuel Joe CHAVEZ, Appellant, v. Fred R. DICKSON, Warden, California State Prison at San Quentin, California, Appellee. Clyde BATES, Appellant, v. Fred R. DICKSON, Warden, California State Prison at San Quentin, California, Appellee.
Nos. 16590, 16622.
United States Court of Appeals Ninth Circuit.
June 16, 1960.
Rehearing Denied Aug. 17, 1960.
Gladstein, Andersen, Leonard & Sib-bett, Richard Gladstein, Norman Leonard, San Francisco, Cal., for appellant Chavez.
Ruth Jacobs, San Francisco, Cal., for appellant Bates.
Stanley Mosk, Atty. Gen. for the State of California, Arlo E. Smith, Deputy Atty. Gen. of the State of California, for appellee.
Before MAGRUDER, HAMLEY and KOELSCH, Circuit Judges.
HAMLEY, Circuit Judge.
Manuel Joe Chavez and Clyde Bates, state prisoners under sentence of death, appeal from district court orders denying their applications for habeas corpus. Separate orders of denial were entered and separate appeals have been taken. The district court however, considered the applications together, and we will do likewise on these appeals.
Appellants were jointly tried in the Superior Court of Los Angeles County on six counts charging felony-murder in violation of California Penal Code, § 189, and one count charging wilful and malicious burning of a building not a parcel of a dwelling, contrary to California Penal Code, § 448a. Each was convicted on all counts, the convictions for violation of section 189 being designated by the jury as first degree murder. The convictions were thereafter affirmed by the California Supreme Court. People v. Chavez, 50 Cal.2d 778, 329 P.2d 907, cer-tiorari denied, Chavez v. California, 358 U.S. 946, 79 S.Ct. 356, 3 L.Ed.2d 353.
The charges and convictions grew out of an occurrence on April 4, 1957, when gasoline and lighted matches were thrown on the floor of the Mecca bar in Los Angeles. Six persons died in the resulting explosion and fire. The death sentences were imposed as a result of the convictions of first degree murder. One Manuel Hernandez was tried at the same time and convicted on similar counts. His sentence, however, was fixed at life imprisonment.
On these appeals it is contended that the district court erred in holding that each of the asserted grounds for relief set out in the respective applications for • writs of habeas corpus is without merit. It is also argued with respect to each such ground, except the first, that the district court erred in refusing to examine the state court record before ruling on the applications.
In this opinion we will discuss, seri-atim, the grounds for relief advanced in the applications. As to each such ground we will first consider whether the district court should have examined the record before ruling on such asserted ground. If it is concluded that such an examination was not required, we will then consider whether the trial court erred in holding such asserted ground for relief to be without merit.
The first asserted ground for relief set out in the applications is that California’s construction of the Penal Code sections under which appellants were convicted had the effect in this case of depriving them of certain federally protected rights.
Appellants were indicted and convicted for violations of California Penal Code, §§ 189 and 448a, in that each of them was responsible for setting fire to a bar in Los Angeles, as a result of which six persons perished. Section 189 defines as murder in the first degree all murder which is perpetrated by means of certain specified acts, including “arson.” Section 448a makes it a crime for a person to wilfully and maliciously burn any building not a parcel of a dwelling. The word “arson” does not appear in this section. In section 447a, however, it is. provided that any person who wilfully and maliciously sets fire to “any dwelling-house, or any kitchen, shop, barn, stable, or other outhouse that is parcel thereof, or belonging to or adjoining thereto. * * * shall be guilty of arson.”
In their appeals to the California Supreme Court appellants contended that only the offense proscribed by section 447a constitutes arson. Hence, it was argued, section 448a set forth a different offense which is not arson, and accordingly a violation of the latter section would not be an act of “arson” within the meaning of section 189 defining murder in the first degree. It was further pointed out that appellants could not have been found guilty of arson as defined in section 447a, since the Mecca bar was not a “dwelling” or any “outhouse-that is a parcel thereof, or belonging to or adjoining thereto.”
The California Supreme Court rejected this argument, holding that a violation of section 448a would be “arson” within the meaning of section 189 defining murder in the first degree. People v. Chavez, supra, 50 Cal.2d at pages 787-788, 329 P.2d 907. It is this construction of sections 189 and 448a which, according to appellants, has deprived them of certain federally protected rights.
As before noted, appellants do not here contend that the district court was required to examine the record of the state court proceeding before passing upon this first ground for relief asserted in the applications. We therefore turn at once to a consideration of the argument that California’s interpretation of sections 189 and 448a in this case has deprived appellants of certain constitutional rights.
First, it is argued, the construction which the California Supreme Court has placed upon these sections is arbitrary and unreasonable.” The contention here is that the meaning which that court has attached to the word “arson” as used in section 189 finds no support in either the common law or in the statutory law of California. Appellants disavow any contention that for this asserted reason we ought to reconstrue section 189 to mean something different than the California court says that it means. They nevertheless urge that the California construction of the statute is so unfounded that the result has been to deprive them of due process of law.
It is difficult to perceive how this court can consider whether the state construction of the statute is arbitrary and unreasonable without in effect reviewing the correctness of the state court’s interpretation of section 189. This, as noted in footnote 3, is not our function.
In any event the decision in People v. Chavez, supra, was reached with due regard to relevant considerations and materials. That court, speaking unanimously, based its interpretation of the statute upon its understanding of the legislative intent. The legislative intent was determined by analyzing the history of state legislation in this field and considering the interplay of other existing statutes. The court also cited its 1947 opinion in Ex parte Bramble, 31 C.2d 43, 187 P.2d 411, and quoted supporting language from the latter opinion. This is enough to convince us that whether right or wrong the interpretation placed upon section 189 in People v. Chavez, supra, was not arbitrary and unreasonable in any sense that could possibly have constitutional significance.
Under their second and third arguments based on the statutory question it is contended that the construction placed on section 189 whereby the term “arson” as therein used was held to embrace the crime defined in section 448a was announced for the first time in the decision handed down in People v. Chavez, supra, after appellants had been convicted. Thus, it is asserted, appellants did not at the time of the incident at the Mecca bar have notice that section 189 would be so construed. The result is, appellants argue, that California has increased the penalty to which appellants were actually subject when the alleged crimes were committed.
These arguments are necessarily predicated on the assumption that section 189 meant one thing from the date of its enactment to the date of the decision in People v. Chavez, supra, and something else thereafter. But to accept this view is to reject the interpretation which the California Supreme Court has placed upon the statute. That court undertook to construe the statute as of the date of enactment. We are bound to accept that construction as of that date. Hence, we are not free to hold that section 189 when enacted meant something different than the California court found it to mean in People v. Chavez. It follows that no ex post facto question could possibly arise.
Appellant’s fourth argument on this branch of the case is that California’s construction of sections 189 and 448a resulted in appellants’ conviction upon a charge not made against them. The point sought to be made is that appellants were really convicted of violations of section 447a, since this is the only statute relating to the setting of fires which uses the word “arson.”
Appellants were not charged with or convicted of violations of section 447a, but rather of section 448a. Appellants’ contention to the contrary is not based on the wording of the indictment or upon the nature of the evidence. The basis of the contention is that only a violation of section 447a could be “arson” as defined in section 189. The California Supreme Court has held to the contrary, and we are bound by that construction.
This brings us to the fifth and final argument advanced by appellants with regard to the question of statutory construction. It is contended that the construction of the term “arson” as used in section 189 to include the crime defined in section 448a renders section 189 so vague and indefinite as to deprive appellants of due procéss of law.
The principle here invoked, as stated in Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 619, 83 L.Ed. 888, is that “no one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes.” In United States v. Petrillo, 332 U.S. 1, 7, 67 S.Ct. 1538, 1542, 91 L.Ed. 1877 it was stated that “the Constitution has erected procedural safeguards to protect against conviction for crime except for violation of laws which have clearly defined conduct thereafter to be punished * * It was there pointed out that this rule against vagueness is met where the statutory language “conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices.”
Any vagueness which may have inhered in the penal statutes here in question at the time of their enactment was. cured by the 1947 opinion of the California Supreme Court in Ex parte Bramble, supra. This being true, we need not decide whether prior to that decision section 189 was void for vagueness as applied to persons accused of murder resulting from the setting of a fire.
We conclude that California’s construction of the Penal Code sections in question did not have the effect of depriving appellants of any federally pro-r tected right. The district court did not. err in holding that this asserted ground: for granting relief under the applications is without merit.
Another ground asserted in the applications of Chavez and Bates why relief should be granted relates to asserted improper statements made to the jury by the district attorney and the trial judge. Excerpts from the trial record setting out these statements were attached to the Chavez application as exhibits C and D. It was contended in the applications that the making of these statements, considered separately or in connection with other asserted procedural errors, deprived appellants of due process of law.
In connection with the argument of this point before the district court, counsel for appellants urged the district judge to examine the record of the state court proceedings for the purpose of noting the context in which the statements of the district attorney and the trial Judge were made, and to inform himself as to the “climate” that was thereby created.
The district judge declined to examine the state court record or any part thereof. Nor was a hearing held for the purpose of receiving evidence pertaining to this or any other point raised in the applications. No such hearing had been requested. In passing on this and all other questions presented, the district judge relied exclusively upon the applications and attached papers and the returns thereto, the opinion of the Supreme Court of California in People v. Chavez, and the oral argument of counsel for appellants and appellee.
Appellants argue here that the district judge erred in not examining relevant portions of the state trial record prior to ruling on the question of whether the assertedly improper remarks of the prosecution and the trial court had deprived appellants of due process of law.
Where an application by a state prisoner and the return thereto raise an issue of fact which if resolved in favor of the applicant would entitle him to relief, it is ordinarily necessary for the district judge to adjudicate the fact issue on the basis of evidence received by him in a hearing called for that purpose. In Brown v. Allen, 344 U.S. 443, 463-465, 506-507, 73 S.Ct. 397, 97 L.Ed. 469, however, it was held that the district judge may rely upon the state court adjudication of such fact issue if he examines the state trial record and satisfies himself, that there is no “vital flaw” in the process of ascertaining such facts in the trial court. In People of the United States ex rel. Jennings v. Ragen, 358 U.S. 276, 79 S.Ct. 321, 3 L.Ed.2d 296, it was specifically held that reliance upon a state court adjudication of a fact issue may not be predicated upon an examination of the opinion of the state supreme court, but requires that the state court record be reviewed.
Appellee contends, however, that the question pertaining to the assertedly improper remarks of the prosecution and the state trial judge presented no fact issue concerning which the district judge was required to either hold a hearing or rely on a state court adjudication. If this contention is correct, there was no' occasion for the district judge to examine the state court record with regard to this particular point, and the failure to do so was not error.
Appellants do not question the statement in the opinion of the California Supreme Court in People v. Chavez, supra, 50 Cal.2d at page 793, 329 P.2d 907, 916, that no objection was taken to the challenged remarks of the trial judge or to some of the questioned argument by the prosecution. As to these remarks and argument, it was held in People v. Cha-^ vez that failure to voice an objection in the trial court precluded the point from being raised on appeal.
State remedies will not be deemed to have been exhausted within the meaning of 28 U.S.C.A. § 2254 if the failure to obtain a final state adjudication was due to inexcusable nonconformity with state procedural requisites. No reason was offered in the district court or in this court as to why appellants should be excused for their failure to make timely objection in the state trial court to the questioned remarks of the prosecution and trial judge.
It follows that as to the criticized remarks concerning which no objection was made in the trial court, relief by federal habeas corpus is unavailable. Hence, as to such remarks no factual issue was presented and the district court was required to deny relief as a matter of law. Accordingly, the failure of the district court to examine the state record with reference to these remarks was not error.
With regard to some of the questioned remarks of the prosecution, defense counsel did make timely objections at the trial and requested that the prosecuting attorney be cited for misconduct. The California Supreme Court held in People v. Chavez that the request to cite the prosecuting attorney for misconduct in making this statement was properly refused, since “the remarks were not evidence ‘but purely a matter of argument.’ ”
The disposition which the California Supreme Court made of this point indicates that the only objection taken to the remarks in question was that they contained recitals of fact which were not supported by evidence in the case. This is borne out by an examination of the briefs which were filed in the California Supreme Court in connection with People v. Chavez.
The conclusion of the state court that this prosecution argument did not neces-sítate reversal required no adjudication of fact but only a conclusion of law based upon an examination of the remarks in question. If the correctness of that conclusion may be reviewed in this habeas corpus proceeding, which we doubt, it is still true that no adjudication of fact is necessary in passing upon the question. It follows that there was no occasion for the district judge to examine the state court record with regard to this particular point, and the failure to do so was not error.
What is said above disposes of appellants’ contention on this appeal that in dealing with the point raised in the applications concerning certain remarks made during the trial by the prosecution and the trial judge the district court was required to examine the state court record. Apart from the matter of examining the state court record, however, there is appellants’ further contention that the district court erred in rejecting as a ground for relief the point regarding such remarks.
Concerning all of the questioned remarks of the trial judge and some of those of the prosecution, it has already been pointed out that appellants inexcusably failed to preserve the point for adjudication by the California Supreme Court, and so may not raise it here. As far as these remarks are concerned, therefore, the district judge could not have granted relief in these habeas corpus proceedings and did not err in declining to do so.
This leaves for consideration only those remarks of the prosecution which are quoted in footnote 12. As before noted, the only objection taken thereto at the trial was that in making them the prosecution went outside the record. The California Supreme Court held otherwise, stating in effect that the remarks did not purport to recite facts but were purely a matter of argument.
It is questionable whether this state court determination is subject to review in this habeas corpus proceeding, but, assuming that it is subject to review as a prelude to determining whether any resulting prejudice could have deprived appellants of due process, we are convinced that the state court determination is correct. Members of the jury could not reasonably have understood that in making the questioned remarks the prosecuting attorney was undertaking to testify as to the facts or to represent that there was evidence in the record supporting his reference to community sentiment.
But even if such remarks could' have been so interpreted, or assuming that the impropriety of the remarks in any other respect had been raised and should have been sustained, no prejudice-resulted which has constitutional significance. It is only where criminal trials in state courts are conducted in such a manner as amounts to a disregard of that fundamental fairness essential to the very concept of justice that due process-is offended and that federal court interference is warranted. Lisenba v. People of State of California, 314 U.S. 219, 236, 62 S.Ct. 280, 86 L.Ed. 166. In our opinion the remark of the prosecution quoted in footnote 12 did not result in a denial' of fundamental fairness essential to the concept of justice.
A third ground asserted in the applications of Chavez and Bates why relief should be granted has to do with the fact that a police officer was permitted over objection to read as evidence two statements transcribed from tape recordings of conversations between police officers and Hernandez and between police officers and one Oscar Brenhaug. Excerpts from these statements were attached as exhibits A and B to the application of Chavez.
Appellants argue that the district judge erred in not examining the trial record for the purpose of ascertaining the context in which they were read to the jury and the “climate” or prejudice which resulted. They also contend that apart from the asserted error in this regard the district court erred in holding that the reading of these statements to the jury did not entitle appellants to relief in these habeas corpus proceedings.
The Hernandez statement was received solely as to him, and the jury was instructed that it should not be used in any way as to Chavez or Bates. Appellants allege, however, that the statement was so prejudicial as to them that it should not have been received despite its relevance as to Hernandez. The California Supreme Court, presented with the same question, held that the statement was admissible in view of its relevance as to Hernandez and the instruction given by the trial court.
Where there is no question concerning a federally significant external event such as the voluntariness of a confession or the knowing use of perjured testimony, trial court rulings on the admissibility of evidence may not be questioned in a federal habeas corpus proceeding. See Eberhart v. United States, '9 Cir., 262 F.2d 421. The fact that certain evidence is prejudicial is immaterial if in fact it was admissible. No federal question of fact or law was raised as to the reading of Hernandez’ statement.
It follows that there was no occasion for the district judge to determine the extent of prejudice resulting from the reading of the Hernandez statement by examining the state record or otherwise. It likewise follows that the district court did not err in holding in effect that the question concerning the admissibility of this evidence, as discussed above, was not available to appellants in this habeas corpus proceeding.
The Brenhaug statement consisted of accusatory statements in response to questions put to him by the police in the presence of Chavez, Bates and Hernandez, together with the latters’ reactions when asked what they had to say concerning Brenhaug’s statement. The Brenhaug statement was received as to Hernandez and Bates, but not as to Chavez, and the jury was so instructed. Chavez alleges, however, that the statement was so prejudicial as to him that it should not have been received whether or not admissible as to Hernandez or Bates.
The California Supreme Court held that the statement was properly admitted as to Hernandez and that as to Chavez a proper cautionary instruction had been given. It follows that as to Chavez the reading of the Brenhaug statement presents no federal question of fact or law. Accordingly, as to him we reach the same conclusion as stated above with respect to the Hernandez statement.
With regard to Bates, however, the California Supreme Court held that it was error to read part of the Brenhaug statement. The reasoning behind this conclusion is set out in the opinion of that court, 50 Cal.2d at page 791, 329 P.2d 907, and need not be repeated here. The California Supreme Court further held, however, that error in this regard did not require reversal. That court stated in its opinion that Brenhaug testified to the same effect at the trial and was subjected to lengthy cross-examination. This and other evidence properly received, that court held, amply established the case against Bates. Moreover, the California Supreme Court stated, Bates’ position at the trial was not based on a denial of what happened on the night of the fire, but on the contention, rejected by the jury, that he was then so intoxicated that he must be deemed guiltless of the crime.
This reasoning by the California Supreme Court, did not involve any adjudication of fact concerning an external event. Nor do appellants here question any of the fact recitals in the state court’s opinions. The determination by the California Supreme Court that the trial court error was not prejudicial is a conclusion of law and not an adjudication of fact. See footnote 15.
We conclude that as to Bates the reading of the Brenhaug statement presents no issue of fact within the meaning of the Brown v. Allen rule.
A question of law is presented as to whether the trial court error was so prejudicial as to deprive Bates of due process of law. As to this the federal district court was not bound by the state court conclusion that the error was not prejudicial.
As before noted, the factual basis relied upon by the state supreme court in holding that the error as to Bates in permitting the Brenhaug statement to be read was not prejudicial has not been questioned by appellants. Adverting to that same factual basis, it is our view that the reading of that statement, which was error in so far as Bates is concerned, was not so prejudicial as to constitute a denial of fundamental fairness essential to the concept of justice. See Lisenba v. People of State of California, supra, and footnote 14.
Finally, with regard to the reading of the Hernandez and Brenhaug statements it is alleged that the transcribed statements were not accurate representations of the recorded conversations. Amplifying this allegation, counsel for Chavez told the district judge at the oral argument on these applications that the trial judge provided an opportunity for counsel to hear the tape recording from which the statements were transcribed. This was done before the statements were received in evidence. The trial judge did not himself listen to the recording.
Further amplifying this allegation, the district judge was told that when the statements were sought to be read to the jury, counsel for appellants represented to the trial judge that the transcriptions were not in accord with the tape recordings. The trial court was told that there were many places where the recordings were completely unintelligible and that there were glaring disparities between the recordings and the transcriptions. The state trial judge, according to appellants’ representations to the district judge, nevertheless declined to listen to the recordings. The state judge permitted the transcribed statements to be read to the jury on the police officer’s testimony that in so far as his information was concerned the statements were substantially correct.
The district judge was urged to call for the recordings and listen to them himself for the purpose of ascertaining the accuracy of the transcriptions and the extent of any prejudice arising from the use of inaccurate transcriptions. The judge declined to do so, holding in effect that he was entitled to rely upon the state trial court’s acceptance of the police officer’s testimony that the statements were substantially correct.
As stated earlier in this opinion, state court rulings on the admissibility of evidence are not subject'to review in federal habeas corpus proceedings where no question is presented concerning a federally significant external event. Here, however, the trial court ruling that the transcribed statements were admissible required that court to adjudicate the facts concerning an external event: the accuracy of the transcriptions. This external event has federal significance if the transcriptions were grossly inaccurate, to the substantial prejudice of appellants. In that event there would, in our opinion, be a denial of that fundamental fairness in the trial proceedings to which appellants were entitled under the Due Process Clause.
It follows that with respect to the contention that the transcribed statements were grossly inaccurate an issue of fact is raised which, if resolved in favor of appellants, would entitle them to relief. Concerning that issue of fact the district judge was required to make an adjudication of his own following a hearing at which evidence could be presented unless, under the circumstances outlined in Brown v. Allen, he chose to rely upon the state court adjudication of that fact. He followed neither course. As indicated in the Jennings, Rogers and Townsend eases, supra, it is therefore necessary to vacate the judgment and remand the case to the district court for further proceedings.
At such further hearing the tape recordings should be called for and listened to, and the trial court proceedings relative to the use of the transcribed statements should also be examined. The fact that parts of the recordings may be unintelligible and were therefore not included in the transcribed statement would not constitute a denial of due process unless it is apparent that substantial prejudice resulted therefrom. But a material variance between intelligible portions of the recordings and the transcribed statements substantially prejudicing appellants would require federal relief, provided that the point was properly raised and preserved at the trial.
The final ground asserted in the applications of Chavez and Bates why relief should be granted has to do with the introduction of certain photographs taken at the scene of the fire. Two of the photographs show the bodies of persons inside the premises. They were used in connection with the testimony of a fireman who was called as an arson expert to testify as to the point where the fire originated. The California Supreme Court held that their probative value outweighed the danger of prejudice to appellants and that the trial court accordingly did not abuse its discretion in permitting their introduction.
The other photographs showed the bodies of the victims after their removal from the premises. They were admitted to prove the degree of burns on certain bodies. Appellants, however, offered to stipulate to the cause of death and the identification of the victims. The California Supreme Court held that in view of this offered stipulation it was an abuse of discretion to overrule the objections to the latter photographs. That court held, however, that in view of the entire record, including the testimony as to the burned condition of several bodies, the error did not result in a miscarriage of justice, citing California Constitution, art. VI, § 4%.
As to the photographs taken at the premises, our discussion of the Hernandez statement is applicable. In view of the state court ruling that the probative value of the photographs outweighed the prejudice resulting from their introduction, no federal question of fact or law is presented. Hence, it was not incumbent upon the district court to call for and examine those photographs or to examine any part of the state court records. Nor did the district court err in holding that introduction of these photographs did not entitle appellants to relief in these habeas corpus proceedings.
With regard to the remaining photographs, the question presented in these habeas corpus proceedings is whether the erroneous introduction was so prejudicial as to deny appellants a fundamentally fair trial. In considering this issue no question of fact is presented in the sense used in Brown v. Allen, since the problem does not concern an event external to the trial or the credibility of narrators of such an event.
It is nevertheless true that appellants cannot adequately present the question of law as to the extent of prejudice unless the photographs are actually examined by the trial court. While it is not denied that they are gruesome and revolting, adjectives are a poor substitute for the visual evidence. Excerpts of the transcribed statements and challenged arguments and remarks could be attached as exhibits to the applications. This was not possible with regard to photographs received as exhibits at the state trial.
Since this cause is to be remanded for further proceedings in connection with the asserted inaccuracy of the transcribed statements, we think the district court should at the same time examine the photographs taken away from the premises as an aid in redetermining whether their introduction has deprived appellants of due process. The photographs will then be in the record of the habeas corpus proceedings in the event such proceedings again come before this court.
While not required by the rule of Brown v. Allen, the district court may find it advisable at the same time to consult any specific part of the trial proceedings to which its attention may be called by the parties as having a bearing upon this question of prejudice. It is to be noted that the California Supreme Court found it desirable to examine the trial proceedings in this connection. While that court in discussing the point made reference to “the entire record,” it took special note of certain testimony bearing upon the point. The district court is under no obligation to review the entire record in dealing with this question.
The judgment is reversed and the cause is remanded for further proceedings consistent with this opinion. Should the orders entered after further proceedings lead to new appeals, they may be heard upon the present record and briefs, appropriately supplemented.
. In this court appellants filed separate opening briefs but joined in a reply brief. Appellee filed one brief dealing with both appeals.
. An examination of the record of the oral argument before the district court indicates that no such request was made.
. Federal courts are bound by the interpretation placed upon the statute of a state by its highest court. State of Minnesota ex rel. Pearson v. Probate Court of Ramsey County, 309 U.S. 270, 273, 60 S.Ct. 523, 84 L.Ed. 744; Daloia v. Rhay, 9 Cir., 252 F.2d 768, 771; Duffy v. Wells, 9 Cir., 201 F.2d 503, 505.
. As before noted, the California Supreme Court as early as 1947 had construed the word “arson” as used in § 189 as including the crime defined in § 448a. Ex parte Bramble, supra. It is true that Bramble was not a felony-murder case. But in reviewing the sufficiency of indictments charging the crime of “arson,” some of which made reference to fires in storebuildings rather than dwellings, the evolution of the word “arson” as used in California Statutes was reviewed in detail. It was specifically held in this connection that the crime defined in § 448a was appropriately designated in the indictments as “arson.”
. There was no evidence warranting a conviction under § 447a, since the Mecca bar was not a dwelling house or any “kitchen, shop, barn, stable or other outhouse that is a parcel thereof, or belonging to or adjoining thereto * *
. See Winters v. People of State of New York, 333 U.S. 507, 510, 68 S.Ct. 665, 92 L.Ed. 840; Chaplinsky v. State of New Hampshire, 315 U.S. 568, 573, 62 S.Ct. 766, 86 L.Ed. 1031; Fox v. State of Washington, 236 U.S. 273, 277, 35 S.Ct. 383, 59 L.Ed. 573.
. It may be noted that the rule against vagueness is most stringently applied when the state penal statute in question is intertwined with limitations on free expression. See Winters v. People of State of New York, supra. There is no such factor in the instant case.
. The substance of the challenged statements and remarks is stated in the opinion in People v. Chavez, supra, 50 Cal.2d at pages 792-793, 329 P.2d 907.
. On the order of the court appellee had filed returns to the applications in which it was recited that Chavez and Bates were imprisoned and sentenced pursuant to valid judgments and commitments. At the same time the state had lodged with the district court a seventeen-volume transcript of the state trial proceedings consisting of the clerk’s transcript containing 215 pages, the court reporter’s transcript of the voir dire examination of the jurors comprising 695 pages, and the reporter’s transcript of the remainder of the trial consisting of 2,912 pages. The exhibits which were received at the trial and the tape recording to which reference will be made below were not lodged with the court.
. See, also, Rogers v. Richmond, 357 U.S. 220, 78 S.Ct. 1367, 2 L.Ed.2d 1361; Townsend v. Sain, 359 U.S. 64, 79 S.Ct. 655, 3 L.Ed.2d 643.
. Brown v. Allen, supra, 344 U.S. at page 487, 73 S.Ct. 397, 97 L.Ed. 469; Application of Hodge, 9 Cir., 262 F.2d 778, 782; Daugharty v. Gladden, 9 Cir., 257 F.2d 750, 756.
. The remarks to which reference is now being made were uttered during the prosecution’s argument to the jury. In commenting on testimony to the effect that one of the people’s witnesses had stated she hoped the guilty persons would get the gas chamber the prosecutor said: “I wish I had a dollar for every person in this community that did not know anyone that died there, did not even know where the place was; that when they saw it in the paper, made the same utterance that those who did it should die.”
. Following the oral argument in this court we called for the briefs which appellants and appellee had filed in People v. Chavez. In complying with this request appellants called attention to the fact that these briefs were not before the district court. We are nevertheless entitled to take judicial notice of the state appellate proceedings, and we called for the state briefs so that this might be done. In any event the same information is to be found in the state trial record which is before this court as part of the record on appeal.
. The same test was applied in Crooker v. State of California, 357 U.S. 433, 439, 78 S.Ct. 1287, 2 L.Ed.2d 1448, and Lyons v. State of Oklahoma, 322 U.S. 596, 605, 64 S.Ct. 1208, 88 L.Ed. 1481. In Cicenia v. LaGay, 357
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
|
sc_partywinning
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the petitioning party (i.e., the plaintiff or the appellant) emerged victorious. The victory the Supreme Court provided the petitioning party may not have been total and complete (e.g., by vacating and remanding the matter rather than an unequivocal reversal), but the disposition is nonetheless a favorable one. Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case.
PALMIERI v. FLORIDA.
No. 131.
Argued November 20, 1968.
Decided December 9, 1968.
Phillip Goldman, by appointment of the Court, 392 U. S. 920, argued the cause and filed a brief for petitioner.
Howard Mendelow, Assistant Attorney General of Florida, argued the cause for respondent. With him on the brief were Earl Faircloth, Attorney General, and Edward Cowart, Assistant Attorney General.
Per Curiam.
The petitioner was convicted of robbery in the Criminal Court of Dade County, Florida, and the judgment of conviction was affirmed by the District Court of Appeal, 189 So. 2d 512, and the Supreme Court of Florida, 198 So. 2d 633. We granted certiorari because the case appeared to present a substantial constitutional question concerning the admissibility at trial of “lineup” identifications made after the petitioner was arrested without probable cause for the sole purpose of gathering evidence against him. 391 U. S. 934. However, upon the complete review of the record that has now become possible, and in the light of oral argument by able and conscientious counsel, it has become evident that the legality of the petitioner’s arrest was not at issue in the Florida appellate courts, and is not challenged here. Accordingly, the writ is dismissed as improvidently granted.
It is so ordered.
Question: Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case. Did the petitioning win the case?
A. Yes
B. No
Answer:
|
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.
TULL v. UNITED STATES
No. 85-1259.
Argued January 21, 1987
Decided April 28, 1987
BRENNAN, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, Maeshall, Blackmun, Powell, and O’ConnoR, JJ., joined, and in Parts I and II of which Stevens and Scalia, JJ., joined. Scalia, J., filed an opinion concurring in part and dissenting in part, in which Stevens, J., joined, post, p. 427.
Richard R. Nageotte argued the cause for petitioner. With him on the briefs was E. Barrett Prettyman, Jr.
Deputy Solicitor General Wallace argued the cause for the United States. With him on the brief were Solicitor General Fried, Assistant Attorney General Habicht, Charles A. Rothfeld, Anne S. Almy, and Claire L. McGuire.
Briefs of amici curiae urging reversal were filed for the Chamber of Commerce of the United States by Herbert L. Fenster, Stanley W. Land-fair, and Robin S. Conrad; for the Virginia Trial Lawyers Association et al. by Mary Lynn Tate; and for the Washington Legal Foundation by Daniel J. Popeo and Paul D. Kamenar.
Robert H. Whaley and Bryan P. Hametiaux filed a brief for the Washington State Trial Lawyers Association as amicus curiae.
Justice Brennan
delivered the opinion of the Court.
The question for decision is whether the Seventh Amendment guaranteed petitioner a right to a jury trial on both liability and amount of penalty in an action instituted by the Federal Government seeking civil penalties and injunc-tive relief under the Clean Water Act, 62 Stat. 1155, as amended, 33 U. S. C. § 1251 et sea.
I — I
The Clean Water Act prohibits discharging, without a permit, dredged or fill material into “navigable waters,” including the wetlands adjacent to the waters. 33 U. S. C. §§1311, 1344, and 1362(7); 33 CFR §§323.2(a)(1)-(7) (1986). “Wetlands” are “swamps, marshes, bogs and similar areas.” 33 CFR § 323.2(c) (1986). The Government sued petitioner, a real estate developer, for dumping fill on wetlands on the island of Chincoteague, Virginia. The Government alleged in the original complaint that petitioner dumped fill on three sites: Ocean Breeze Mobile Homes Sites, Mire Pond Properties, and Eel Creek. The Government later amended the complaint to allege that petitioner also placed fill in a manmade waterway, named Fowling Gut Extended, on the Ocean Breeze property.
Section 1319 enumerates the remedies available under the Clean Water Act. Subsection (b) authorizes relief in the form of temporary or permanent injunctions. Subsection (d) provides that violators of certain sections of the Act “shall be subject to a civil penalty not to exceed $10,000 per day” during the period of the violation. The Government sought in this case both injunctive relief and civil penalties. When the complaint was filed, however, almost all of the property at issue had been sold by petitioner to third parties. Injunctive relief was therefore impractical except with regard to a small portion of the land. App. 110, 119. The Government’s complaint demanded the imposition of the maximum civil penalty of $22,890,000 under subsection (d). App. 31-34.
Petitioner’s timely demand for a trial by jury was denied by the District Court. During the 15-day bench trial, petitioner did not dispute that he had placed fill at the locations alleged and did not deny his failure to obtain a permit. Petitioner contended, however, that the property in question did not constitute “wetlands.” 615 F. Supp. 610, 615-618 (ED Va. 1983). The Government concedes that triable issues of fact were presented by disputes between experts involving the composition and nature of the fillings. Tr. of Oral Arg. 44.
The District Court concluded that petitioner had illegally filled in wetland areas on all properties in question, but drastically reduced the amount of civil penalties sought by the Government. With respect to the Ocean Breeze Mobile Homes Sites, the court imposed a civil fine of $35,000, noting that petitioner had sold seven lots at a profit of $5,000 per lot. 615 F. Supp., at 626. The court fined petitioner another $35,000 for illegal fillings on the Mire Pond Properties, ibid., and $5,000 for filling that affected a single lot in Eel Creek, ibid., although petitioner had realized no profit from filling in these properties. In addition, the court imposed on petitioner a $250,000 fine to be suspended, however, “on the specific condition that he restore the extension of Fowling Gut to its former navigable condition . . . .” Id., at 627. Although petitioner argued that such restoration required purchasing the land from third parties at a cost of over $700,000, thus leaving him no choice but to pay the fine, the court refused to alter this order. App. 107a-108a. The court also granted separate injunctive relief: it ordered the restoration of wetlands on the portions of Mire Pond and Eel Creek still owned by petitioner, 615 F. Supp., at 627, and further ordered the removal of fillings on five lots of the Ocean Breeze Mobile Home Sites unless petitioner were granted an “after-the-fact permit” validating the fillings. Id., at 626.
The Court of Appeals affirmed over a dissent, rejecting petitioner’s argument that, under the Seventh Amendment, he was entitled to a jury trial. 769 F. 2d 182 (CA4 1985). The court expressly declined to follow the decision of the Court of Appeals for the Second Circuit in United States v. J. B. Williams Co., 498 F. 2d 414 (1974), which held that there was a Seventh Amendment “ ‘right of jury trial when the United States sues ... to collect a [statutory civil] penalty, even though the statute is silent on the right of jury trial.’” 498 F. 2d, at 422-423 (quoting 5 J. Moore, Federal Practice ¶38.-31[1], pp. 232-233 (2d ed. 1971)). The Court of Appeals in this case also found unpersuasive the dictum in Hepner v. United States, 213 U. S. 103, 115 (1909), and in United States v. Regan, 232 U. S. 37, 46-47 (1914), that the Seventh Amendment’s guarantee applies to civil actions to collect a civil penalty. The court concluded that, while in Hepner and Regan the civil penalties were statutorily prescribed fixed amounts, the District Court in the present case exercised “statutorily conferred equitable power in determining the amount of the fine.” 769 F. 2d, at 187. The Court of Appeals also noted that the District Court fashioned a “ ‘package’ of remedies” containing both equitable and legal relief with “one part of the package affecting assessment of the others.” Ibid.
In Atlas Roofing Co. v. Occupational Safety and Health Review Comm’n, 430 U. S. 442, 449, n. 6 (1977), we explicitly declined to decide whether the dictum of Hepner and Regan “correctly divines the intent of the Seventh Amendment.” To resolve this question and the conflict between Circuits, we granted certiorari. 476 U. S. 1139 (1986). We reverse.
II
The Seventh Amendment provides that, “[i]n Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved . . . .” The Court has construed this language to require a jury trial on the merits in those actions that are analogous to “Suits at common law.” Prior to the Amendment’s adoption, a jury trial was customary in suits brought in the English law courts. In contrast, those actions that are analogous to 18th-century cases tried in courts of equity or admiralty do not require a jury trial. See Parsons v. Bedford, 3 Pet. 433 (1830). This analysis applies not only to common-law forms of action, but also to causes of action created by congressional enactment. See Curtis v. Loether, 415 U. S. 189, 193 (1974).
To determine whether a statutory action is more similar to cases that were tried in courts of law than to suits tried in courts of equity or admiralty, the Court must examine both the nature of the action and of the remedy sought. First, we compare the statutory action to 18th-century actions brought in the courts of England prior to the merger of the courts of law and equity. See, e. g., Pernell v. Southall Realty, 416 U. S. 363, 378 (1974); Dairy Queen, Inc. v. Wood, 369 U. S. 469, 477 (1962). Second, we examine the remedy sought and determine whether it is legal or equitable in nature. See, e. g., Curtis v. Loether, supra, at 196; Ross v. Bernhard, 396 U. S. 531, 542 (1970).
A
Petitioner analogizes this Government suit under § 1319(d) to an action in debt within the jurisdiction of English courts of law. Prior to the enactment of the Seventh Amendment, English courts had held that a civil penalty suit was a particular species of an action in debt that was within the jurisdiction of the courts of law. See, e. g., Atcheson v. Everitt, 1 Cowper 382, 98 Eng. Rep. 1142 (K. B. 1776) (characterizing civil penalty suit as a type of action in debt); Calcraft v. Gibbs, 5 T. R. 19, 101 Eng. Rep. 11 (K. B. 1792) (granting new jury trial in an action in debt for a civil penalty).
After the adoption of the Seventh Amendment, federal courts followed this English common law in treating the civil penalty suit as a particular type of an action in debt, requiring a jury trial. . See, e. g., United States v. Mundell, 27 F. Cas. 23 (No. 15,834) (CC Va. 1795) (bail not required in a civil penalty case tried by a jury because it was an action in debt); Jacob v. United States, 13 F. Cas. 267 (No. 7,157) (CC Va. 1821) (action in debt by United States to recover civil penalty of $500 and costs of violation of an Act of Congress); Lees v. United States, 150 U. S. 476, 479 (1893) (“[Although the recovery of a penalty is a proceeding criminal in nature, yet in this class of cases it may be enforced in a civil action, and in the same manner that debts are recovered in the ordinary civil courts”)- Actions by the Government to recover civil penalties under statutory provisions therefore historically have been viewed as one type of action in debt requiring trial by jury.
It was against this historical background that the Court in Hepner v. United States, 213 U. S. 103 (1909), considered the propriety of a directed verdict by a District Court Judge in favor of the Government where there was undisputed evidence that a defendant had committed an offense under § 8 of the Alien Immigration Act of 1903, which provided for a $1,000 civil penalty. The Court held that a directed verdict was permissible and did not violate the defendant’s right to a jury- trial under the Seventh Amendment. The Court said:
“The objection made in behalf of the defendant, that an affirmative answer to the question certified could be used so as to destroy the constitutional right of trial by jury, is without merit and need not be discussed. The defendant was, of course, entitled to have a jury summoned in this case, but that right was subject to the condition, fundamental in the conduct of civil actions, that the court may withdraw a case from the jury and direct a verdict, according to the law if the evidence is uncon-tradicted and raises only a question of law.” 213 U. S., at 115 (emphasis added).
In United States v. Regan, 232 U. S. 37 (1914), the Court assumed that a jury trial was required in civil penalty actions. In that case, the Court upheld the validity of a jury instruction in an action brought by the Government under the Alien Immigration Act of 1907. The Court stated that the instruction requiring proof beyond a reasonable doubt was incorrect because:
“While the defendant was entitled to have the issues tried before a jury, this right did not arise from Article III of the Constitution or from the Sixth Amendment, for both relate to prosecutions which are strictly criminal in their nature, but it derives out of the fact that in a civil action of debt involving more than twenty dollars a jury trial is demandable.” 232 U. S., at 47 (citation omitted).
In the instant case, the Government sought penalties of over $22 million for violation of the Clean Water Act and obtained a judgment in the sum of $325,000. This action is clearly analogous to the 18th-century action in debt, and federal courts have rightly assumed that the Seventh Amendment required a jury trial.
The Government argues, however, that — rather than an action in debt — the closer historical analog is an action to abate a public nuisance. In 18th-century English law, a public nuisance was “an act or omission ‘which obstructs or causes inconvenience or damage to the public in the exercise of rights common to all Her Majesty’s subjects.’” W. Prosser, Law of Torts 583 (4th ed. 1971) (hereinafter Prosser) (footnote omitted). The Government argues that the present suit is analogous to two species of public nuisances. One is the suit of the sovereign in the English courts of equity for a “purprestare” to enjoin or order the repair of an enclosure or obstruction of public waterways; the other is the suit of the sovereign to enjoin “offensive trades and manufactures” that polluted the environment. 4 W. Blackstone, Commentaries * 167.
It is true that the subject matter of this Clean Water Act suit — the placement of fill into navigable waters — resembles these two species of public nuisance. Whether, as the Government argues, a public nuisance action is a better analogy than an action in debt is debatable. But we need not decide the question. As Pernell v. Southall Realty, 416 U. S., at 375, cautioned, the fact that the subject matter of a modern statutory action and an 18th-century English action are close equivalents “is irrelevant for Seventh Amendment purposes,” because “that Amendment requires trial by jury in actions unheard of at common law.” It suffices that we conclude that both the public nuisance action and the action in debt are appropriate analogies to the instant statutory action.
The essential function of an action to abate a public nuisance was to provide a civil means to redress “a miscellaneous and diversified group of minor criminal offenses, based on some interference with the interests of the community, or the comfort or convenience of the general public.” Prosser 583. Similarly, the essential function of an action in debt was to recover money owed under a variety of statutes or under the common law. Both of these 18th-century actions, then, could be asserted by the sovereign to seek relief for an injury to the public in numerous contexts.
We need not rest our conclusion on what has been called an “abstruse historical” search for the nearest 18th-century analog. See Ross v. Bernhard, 396 U. S., at 538, n. 10. We reiterate our previously expressed view that characterizing the relief sought is “[m]ore important” than finding a precisely analogous common-law cause of action in determining whether the Seventh Amendment guarantees a jury trial. Curtis v. Loether, 415 U. S., at 196.
B
A civil penalty was a type of remedy at common law that could only be enforced in courts of law. Remedies intended to punish culpable individuals, as opposed to those intended simply to extract compensation or restore the status quo, were issued by courts of law, not courts of equity. See, e. g., Curtis v. Loether, supra, at 197 (punitive damages remedy is legal, not equitable, relief); Ross v. Bernhard, supra, at 536 (treble-damages remedy for securities violation is a penalty, which constitutes legal relief). The action authorized by § 1319(d) is of this character. Subsection (d) does not direct that the “civil penalty” imposed be calculated solely on the basis of equitable determinations, such as the profits gained from violations of the statute, but simply imposes a maximum penalty of $10,000 per day of violation. The legislative history of the Act reveals that Congress wanted the district court to consider the need for retribution and deterrence, in addition to restitution, when it imposed civil penalties. 123 Cong. Rec. 39191 (1977) (remarks of Sen. Muskie citing Environmental Protection Agency (EPA) memorandum outlining enforcement policy). A court can require retribution for wrongful conduct based on the seriousness of the violations, the number of prior violations, and the lack of good-faith efforts to comply with the relevant requirements. Ibid. It may also seek to deter future violations by basing the penalty on its economic impact. Ibid. Subsection 1319(d)’s authorization of punishment to further retribution and deterrence clearly evidences that this subsection reflects more than a concern to provide equitable relief. In the present case, for instance, the District Court acknowledged that petitioner received no profits from filling in properties in Mire Pond and Eel Creek, but still imposed a $35,000 fine. App. to Pet. for Cert. 60a. Thus, the District Court intended not simply to disgorge profits but also to impose punishment. Because the nature of the relief authorized by § 1319(d) was traditionally available only in a court of law, petitioner in this present action is entitled to a jury trial on demand.
The punitive nature of the relief sought in this present case is made apparent by a comparison with the relief sought in an action to abate a public nuisance. A public nuisance action was a classic example of the kind of suit that relied on the injunctive relief provided by courts in equity. Prosser 603. “Injunctive relief [for enjoining a public nuisance at the request of the Government] is traditionally given by equity upon a showing of [peril to health and safety].” Steelworkers v. United States, 361 U. S. 39, 61 (1959) (Frankfurter, J., concurring). The Government, in fact, concedes that public nuisance cases brought in equity sought injunctive relief, not monetary penalties. Brief for United States 24, n. 17. Indeed, courts in equity refused to enforce such penalties. See James, Right to a Jury Trial in Civil Actions, 72 Yale L. J. 655, 672 (1963).
The Government contends, however, that a suit enforcing civil penalties under the Clean Water Act is similar to an action for disgorgement of improper profits, traditionally considered an equitable remedy. It bases this characterization upon evidence that the District Court determined the amount of the penalties by multiplying the number of lots sold by petitioner by the profit earned per lot. Tr. of Oral Arg. 27. An action for disgorgement of improper profits is, however, a poor analogy. Such an action is a remedy only for restitution — a more limited form of penalty than a civil fine. Restitution is limited to “restoring the status quo and ordering the return of that which rightfully belongs to the purchaser or tenant.” Porter v. Warner Holding Co., 328 U. S. 395, 402 (1946). As the above discussion indicates, however, § 1319(d)’s concerns are by no means limited to restoration of the status quo.
The Government next contends that, even if the civil penalties under § 1319(d) are deemed legal in character, a jury trial is not required. A court in equity was empowered to provide monetary awards that were incidental to or intertwined with injunctive relief. The Government therefore argues that its claim under § 1319(b), which authorizes injunc-tive relief, provides jurisdiction for monetary relief in equity. Brief for United States 38. This argument has at least three flaws. First, while a court in equity may award monetary restitution as an adjunct to injunctive relief, it may not enforce civil penalties. See Porter v. Warner Holding Co., supra, at 399. Second, the Government was aware when it filed suit that relief would be limited primarily to civil penalties, since petitioner had already sold most of the properties at issue. App. 110, 119. A potential penalty of $22 million hardly can be considered incidental to the modest equitable relief sought in this case.
Finally, the Government was free to seek an equitable remedy in addition to, or independent of, legal relief. Section 1319 does not intertwine equitable relief with the imposition of civil penalties. Instead each kind of relief is separably authorized in a separate and distinct statutory provision. Subsection (b), providing injunctive relief, is independent of subsection (d), which provides only for civil penalties. In such a situation, if a “legal claim is joined with an equitable claim, the right to jury trial on the legal claim, including all issues common to both claims, remains intact. The right cannot be abridged by characterizing the legal claim as ‘incidental’ to the equitable relief sought.” Curtis v. Loether, 415 U. S., at 196, n. 11. Thus, petitioner has a constitutional right to a jury trial to determine his liability on the legal claims.
I — I I — I I — I
The remaining issue is whether petitioner additionally has a Seventh Amendment right to a jury assessment of the civil penalties. At the time this case was tried, § 1319(d) did not explicitly state whether juries or trial judges were to fix the civil penalties. The legislative history of the 1977 Amendments to the Clean Water Act shows, however, that Congress intended that trial judges perform the highly discretionary calculations necessary to award civil penalties after liability is found. 123 Cong. Rec. 39190-39191 (1977) (remarks of Sen. Muskie citing letter from EPA Assistant Administrators of Enforcement of Dec. 14, 1977) (“[Pjenalties assessed by judges should be sufficiently higher than penalties to which the Agency would have agreed in settlement to encourage violators to settle”). We must decide therefore whether Congress can, consistent with the Seventh Amendment, authorize judges to assess civil penalties.
The Seventh Amendment is silent on the question whether a jury must determine the remedy in a trial in which it must determine liability. The answer must depend on whether the jury must shoulder this responsibility as necessary to preserve the “substance of the common-law right of trial by jury.” Colgrove v. Battin, 413 U. S. 149, 157 (1973). Is a jury role necessary for that purpose? We do not think so. “ ‘Only those incidents which are regarded as fundamental, as inherent in and of the essence of the system of trial by jury, are placed beyond the reach of the legislature.’” Id., at 156, n. 11 (quoting Scott, Trial by Jury and the Reform of Civil Procedure, 31 Harv. L. Rev. 669, 671 (1918)). See also Galloway v. United States, 319 U. S. 372, 392 (1943) (“[T]he Amendment was designed to preserve the basic institution of jury trial in only its most fundamental elements”). The assessment of a civil penalty is not one of the “most fundamental elements.” Congress’ authority to fix the penalty by statute has not been questioned, and it was also the British practice, see, e. g., Atcheson v. Everitt, 1 Cowper 382, 98 Eng. Rep. 1142 (K. B. 1776). In the United States, the action to recover civil penalties usually seeks the amount fixed by Congress. See, e. g., United States v. Regan, 232 U. S., at 40; Hepner v. United States, 213 U. S., at 109. The assessment of civil penalties thus cannot be said to involve the “substance of a common-law right to a trial by jury,” nor a “fundamental element of a jury trial.”
Congress’ assignment of the determination of the amount of civil penalties to trial judges therefore does not infringe on the constitutional right to a jury trial. Since Congress itself may fix the civil penalties, it may delegate that determination to trial judges. In this case, highly discretionary calculations that take into account multiple factors are necessary in order to set civil penalties under the Clean Water Act. These are the kinds of calculations traditionally performed by judges. See Albemarle Paper Co. v. Moody, 422 U. S. 405, 442-443 (1975) (Rehnquist, J., concurring). We therefore hold that a determination of a civil penalty is not an essential function of a jury trial, and that the Seventh Amendment does not require a jury trial for that purpose in a civil action.
IV
We conclude that the Seventh Amendment required that petitioner’s demand for a jury trial be granted to determine his liability, but that the trial court and not the jury should determine the amount of penalty, if any. The judgment of the Court of Appeals is therefore reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Additionally, the Government alleged that petitioner’s dumping of fill in Fowling Gut Extended violated another statute, the Rivers and Harbors Act, which prohibits the placement of fill in navigable waters without the authorization of the Secretary of the Army. 33 U. S. C. §403. Petitioner does not base his Seventh Amendment claim on the Government’s prosecution under this statute, which provides for injunctive relief but not for civil penalties.
The Government’s complaint alleged violations involving over 1 million square feet of land. The Government obtained injunctive relief, however, relating to only 6,000 square feet. Brief for Petitioner 5.
Before initiating the inquiry into the applicability of the Seventh Amendment, “[w]e recognize, of course, the ‘cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the [constitutional] question may be avoided.’ ” Curtis v. Loether, 415 U. S. 189, 192, n. 6 (1974) (citation omitted); see also Pernell v. Southall Realty, 416 U. S. 363, 365 (1974). Nothing in the language of the Clean Water Act or its legislative history implies any congressional intent to grant defendants the right to a jury trial during the liability or penalty phase of the civil suit proceedings. Given this statutory silence, we must answer the constitutional question presented.
The Court has also considered the practical limitations of a jury trial and its functional compatibility with proceedings outside of traditional courts of law in holding that the Seventh Amendment is not applicable to administrative proceedings. See, e. g., Atlas Roofing Co. v. Occupational Safety and Health Review Comm’n, 430 U. S. 442, 454 (1977); Pernell v. Southall Realty, supra, at 383. But the Court has not used these considerations as an independent basis for extending the right to a jury trial under the Seventh Amendment.
Public nuisances included “interferences with the public health, as in the ease of a hogpen, the keeping of diseased animals, or a malarial pond; with the public safety, as in the case of the storage of explosives, the shooting of fireworks in the streets, harboring a vicious dog, or the practice of medicine by one not qualified; with public morals, as in the case of houses of prostitution, illegal liquor establishments, gambling houses, indecent exhibitions, bullfights, unlicensed prize fights, or public profanity; with the publice [sic] peace, as by loud and disturbing noises, or an opera performance which threatens to cause a riot; with the public comfort, as in the case of bad odors, smoke, dust and vibration; with public convenience, as by obstructing a highway or a navigable stream, or creating a condition which makes travel unsafe or highly disagreeable, or the collection of an inconvenient crowd; and in addition, such unclassified offenses as eavesdropping on a jury, or being a common scold.” Prosser 583-585 (footnotes omitted).
The Government contends that both the cause of action and the remedy must be legal in nature before the Seventh Amendment right to a jury trial attaches. It divides the Clean Water Act action for civil penalties into a cause of action and a remedy, and analyzes each component as if the other were irrelevant. Thus, the Government proposes that a public nuisance action is the better historical analog for the cause of action, and that an action for disgorgement is the proper analogy for the remedy. We reject this novel approach. Our search is for a single historical analog, taking into consideration the nature of the cause of action and the remedy as two important factors. See Pernell v. Southall Realty, 416 U. S., at 375; Curtis v. Loether, 415 U. S., at 195-196.
The Government distinguishes this suit from other actions to collect a statutory penalty on the basis that the statutory penalty here is not fixed or readily calculable from a fixed formula. We do not find this distinction to be significant. The more important characteristic of the remedy of civil penalties is that it exacts punishment — a kind of remedy available only in courts of law. Thus, the remedy of civil penalties is similar to the remedy of punitive damages, another legal remedy that is not a fixed fine. See, e. g., Curtis v. Loether, supra, at 189-190 (defendant entitled to jury trial in an action based on a statute authorizing actual damages and punitive damages of not more than $1,000).
When Congress enacted the 1977 amendments to the Clean Water Act, it endorsed the EPA’s then-existing penalty calculation policy. 123 Cong. Rec. 39190-39191 (1977) (remarks of Sen. Muskie). This policy was developed to guide EPA negotiators in reaching settlements with violators of the Act. The policy instructed negotiators to consider a number of factors: the seriousness of the violations, the economic benefits accrued from the violations, prior violations, good-faith efforts to comply with the relevant requirements, and the economic impact of the penalty. After the Court heard argument in this case, § 1319(d) was amended to require the trial court to consider these factors in determining the amount of a civil penalty along with “such other matters as justice may require.” § 313(d), Water Quality Act of 1987, Pub. L. 100-4, 101 Stat. 47.
Nothing in the Amendment’s language suggests that the right to a jury trial extends to the remedy phase of a civil trial. Instead, the language “defines the kind of cases for which jury trial is preserved, namely ‘suits at common law.’” Colgrove v. Battin, 413 U. S. 149, 152 (1973). Although “ Tw]e have almost no direct evidence concerning the intention of the framers of the seventh amendment itself,’ the historical setting in which the Seventh Amendment was adopted highlighted a controversy that was generated ... by fear that the civil jury itself would be abolished.” Ibid, (footnote and citation omitted). We have been presented with no evidence that the Framers meant to extend the right to a jury to the remedy phase of a civil trial.
Question: Did administrative action occur in the context of the case?
A. No
B. Yes
Answer:
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songer_source
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J
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What follows is an opinion from a United States Court of Appeals. Your task is to identify the forum that heard this case immediately before the case came to the court of appeals.
MARSMAN v. COMMISSIONER OF INTERNAL REVENUE.
No. 6535.
United States Court of Appeals Fourth Circuit.
Argued April 13, 1953.
Decided June 3, 1953.
Rehearing Denied July 7, 1953.
Herbert W. Clark, San Francisco, Cal. (Nelson T. Hartson, Seymour S. Mintz, William T. Plumb, Jr., Washington, D. C., Leon F. De Fremery, Clarence E. Musto, Richard J. Archer, Morrison, Hohfeld, Foerster, Shuman & Clark, San Francisco, Cal., and Hogan & Hartson, Washington, D. C., on the brief), for petitioner.
Louise Foster, Special Asst, to the Atty. Gen. (H. Brian Holland, Asst. Atty. Gen., Ellis N. Slack and Plelen Goodner, Special Assts. to the Atty. Gen., on the brief), for respondent.
Before PARKER, Chief Judge, and SO-PER and DOBIE, Circuit Judges.
SOPER, Circuit Judge.
This petition to review the decision of the Tax Court presents the questions whether Mary A. Marsman, a citizen of the Commonwealth of the Philippines, was a resident of the United States during the period from September 22, 1940 to December 31, 1941, and if so, whether she is liable for United States income tax on certain undistributed net income held on December 31, 1940 by La Trafagona, a Philippine corporation, wholly owned by her. If these questions are resolved against the taxpayer, it is also necessary to determine (1) whether the tax should be based on one-half of the entire amount of the undistributed income of La Trafagona on December 31, 1940, or only so much thereof as was acquired after September 22, 1940, when she became a resident of the United States; and (2) whether the taxpayer, being on a cash basis, is entitled to a credit against her United States income tax for 1941 in the amount of the income taxes paid by her to the Philippine Islands in 1941 for the years 1938 and 1940.
The Tax Court found that Mrs. Mars-man was a resident of tile United States between September 22, 1940 and December 31, 1941, the tax periods involved herein, and that she was taxable on the undistributed income of La Trafagona for the entire year 1940 rather than for the period from September 22 to December 31, 1940, and that no pari of the income taxes paid to the Philippine government in 1941 was available to her as a credit against the United States income taxes due by her for that year.
The evidence on the controlling issues of residence may be summarized as follows: The taxpayer, a native of Scotland, and her present husband, J. H. Marsman, a native of Holland, became residents of the Philippines prior to 1920 and were married there in that year. They were naturalized in the Philippines in 1934 and became citizens of the Commonwealth in 1935 and remained citizens during the taxable period.
During these years each of them controlled large corporate business enterprises through the medium of a wholly owned Philippine holding company, that is, La Trafagona, owned by the taxpayer, and El Emprendedor, owned by her husband. They maintained two large and well furnished houses in the Philippines, one in Manila and another at Baguio, which were adequately staffed and always open for occupation. In 1939 and 1940 they made extensive improvements in these residences and acquired new furnishings for them.
In 1939 they planned to place their daughter Anne in school in England or on the continent of Europe, and on April 28 of that year, the three came to San Francisco partly for this purpose and partly to combine a business trip to the United States with a vacation in Europe. After their arrival Mr. Marsman, whose wide connections kept him well informed of the threat of war, concluded that it was not advisable to take his family to Europe and so he left them in California and flew to Europe on a business trip. He returned to San Francisco in September and shortly thereafter returned to Manila and did not return to the United States until December, 1939.
The husband and wife opened a joint account with a stockbroker in San Francisco in 1939 and Mrs. Marsman also opened such an account in her own name.
When the family first arrived in San Francisco in April, 1939 they took up residence in a hotel, accompanied by several servants. In June, 1939 Marsman bought a house for $30,000 and furnished it for use as a residence by the daughter while in attendance at school, and persons were engaged to care for her and the residence during her parents’ absence. In 1943 the house was sold and another was purchased in Los Altos, California.
The daughter was enrolled in a private school in San Francisco in September, 1939, completed her first year, and left for Manila in July, 1940. Her parents had preceded her in the previous April. They bought a yacht in California for $75,000 in 1940 and engaged a crew to sail the vessel to the Philippines in April.
The tax period under consideration began on September 22, 1940, when Mrs. Marsman and the daughter returned to San Francisco by air, and the child was again entered in school. Marsman remained in Manila except for short business trips and a visit to' the United States from June to September, 1941, when he returned to Manila. In December, 1941 he flew to Hong Kong and was captured by the Japanese. He escaped and came to the United States in 1942. He was not a resident of the United States at any time during the tax period which ended December, 1941.
Mrs. Marsman remained in the United States continuously from September 22, 1940 until 1945. She and her daughter were admitted on the occasion of their first visit in April, 1939 for “a temporary period, of six months.” In October, 1939 an extension of the temporary stay was granted for six months. On September 22, 1940, the mother and daughter were admitted for “a temporary period of ten months.” On July 1, 1941 an. extension for one year was requested for the reason that conditions abroad were still in an unsettled state; and in 1942, 1943 and 1944 additional extensions were requested and granted because of the war. In 1945 a one year extension was denied. On February 7, 1948 the taxpayer was allowed to enter the United States through Canada as a permanent British immigrant.
Mrs. Marsman denied that she formed the intent to remain in the United States during the taxable period, but there is nevertheless abundant evidence that her extended stay in this country was caused by war conditions and the desire to avoid the danger that would have attended a return to the Philippines. The Marsmans were acquainted with persons of importance in many parts of-the world and through their contacts were led to believe that there was grave danger of war in the Orient in 1940. Correspondence between the husband in Manila and the wife in San Francisco in the fall of 1940 and thereafter indicates his fear of war, his acquaintance with the' preparations of the United States in the Philippines to meet the emergency, and his satisfaction that his wife was in a safe place. Her letters to him frequently expressed her desire to return to her home, even as late as October, 1941, as well as her sense of obligation to the Marsman employees in the Philippines, but she nevertheless yielded to his wishes and his advice and was herself convinced of the danger, and in October, 1940, advised relatives in Canada to stay away from Manila.
In view of these facts we are of the opinion that the Tax Court was justified in finding that on September 22, 1940 Mrs. Marsman “had a definite intent to remain in the United States until such time as the danger of war in the Orient subsided”; and we do not think that the issuance of certificates for a stay in this country for temporary periods, or the presence of her daughter at school in San Francisco, or the strong desire of the taxpayer to return to her established home in the Philippines as soon as it should become safe for- her to do so, are inconsistent with the court’s conclusion. The case is governed by Treasury Regulations 111 § 29.211-2 where it is laid down that one who comes to the United States for a purpose of such a nature that an extended stay may be necessary for its accomplishment, and to that end makes his home temporarily in the United States, becomes a resident, though it may be his intention at all times to return to his domicile abroad when the purpose for which he came has been consummated or abandoned. The weight to be given to this Regulation in considering a question of residence in the application of the income tax law, was discussed by this court under somewhat similar factual conditions in Commissioner of Internal Revenue v. Nubar, 4 Cir., 185 F.2d 584, and Commissioner of Internal Revenue v. Patino, 4 Cir., 186 F.2d 962. We conclude that the taxpayer was taxable as a resident alien during the taxable years.
We come then to the questions relating to the inclusion of the undistributed net income of La Trafagona in the taxable income of Mrs. Marsman for the year 1940, and her claim to a credit against her United States income tax for 1941 of the amount of the income taxes paid by her to the Philippine government in 1941. The undistributed net income of La Trafagona for the entire year 1940 was $130,357.04, when computed under the provisions relating to “undistributed Supplement P net income” contained in Section 335 of the Internal Revenue Code, 26 U.S.C.A. § 335. The amount is not in dispute and the controversy is as to what portion thereof should be included in the taxable income, the taxpayer contending that the income acquired by the corporation prior to September 22, 1940 is not taxable in the United States, while the government contends that the income of the corporation for the entire taxable year was taxable to Mrs. Marsman. The statute relied on is Section 337 of the Internal Revenue Code, 26 U.S.C.A. § 337, which provides that the undistributed Supplement P net income of a foreign personal holding company shall be included in the gross income of citizens or residents of the United States who are shareholders thereof in the manner and to the extent set forth in the Supplement. Section 331 provides that a foreign corporation is such a holding company, if at least 50 per cent of its gross income (as defined in Section 334(a) is of the character described in Section 332, and if at any time during the taxable year more than 50 per cent in value of its outstanding stock is owned by not more than five individuals or residents of the United States who are called “United States group”.
It is not disputed that La Trafagona meets these requirements both as to the nature of its income and the ownership of its stock. The question is as to the interpretation of Section 337 which specifies the amount of the undistributed Supplement P net income which shall be included in the gross income, as follows:
“(a) General rule. The undistributed Supplement P net income of a foreign personal holding company shall be included in the gross income of the citizens or residents of the United States * * * who are shareholders in such foreign personal holding company (hereinafter called ‘United States shareholders’) in the manner and to the extent set forth in this Supplement.
“(b) Amount included in gross income. Each United States shareholder, who was a shareholder on the day in the taxable year of the company which was the last day on which a United States group (as defined in section 331(a)(2) existed with respect to the company, shall include in his gross income, as a dividend, for the taxable year in which or with which the taxable year of the company ends, the amount he would have received as a dividend if on such last day there had been distributed by the company, and received by the shareholders, an amount which bears the same ratio to the undistributed Supplement P net income of the company for the taxable year as the portion of such taxable year up to and including such last day bears to the entire taxable year.”
It will be seen that this section requires every “United States shareholder” of a foreign personal holding corporation to include in his gross income certain undistributed net income of the corporation if he was a stockholder on the last day in the tax year when the United States group was in existence. In this case the group consisted of Mrs. Marsman alone and she remained the sole shareholder until the last day of the year, so that she is within the definition of shareholder contained in the statute. As such she is required to include in her gross taxable income the amount she would have received as a dividend upon the last day of 1940 if on that day there had been distributed to her as the sole stockholder “an amount which bears the same ratio to the undistributed Supplement P net income of the company for the taxable .year as the portion of such taxable year up to and including such last day bears to the entire taxable year.” Since the last day in this case is the last day of the year 1940, Mrs. Marsman would be required to include in her- gross income the Supplement P net income of La Trafagona for the entire year, if the language.of the section is to be given a strictly literal interpretation.
We do not think, however, that the statute should be applied literally and without reference to the purpose for which it was admittedly enacted. The provisions of the statute now set out in Sections 331 to 340 of the Internal Revenue Code, 26 U.S.C.A. §§ 331-340, as Supplement P — Foreign Personal Holding Companies, were first enacted in Title II of the Revenue Code of 1937. They were passed by Congress to prevent the avoidance of income tax by taxpayers in the United States which was accomplished by placing-income of the taxpayer in the hands of a foreign holding company that was itself not subject to the jurisdiction of the United States. The Ways and Means Committee of the House of Representatives made this plain in its report to the House (IT.R.Rep. No. 1546, 75th Cong., 1st Sess. 1937), when it said: “* * * The- evidence presented to the Joint Committee has shown that foreign personal holding companies have afforded one of the most flagrant loopholes for tax avoidance. The use of such corporations has greatly increased within the last few years. Unless- immediate preventative measures are taken increased loss of revenue will be suffered in the future.”
The statute was obviously designed to reach the income of persons who were subject to the tax laws of the United States but were eluding taxation through the foreign holding company device. Accordingly Section 331(a)(2) provided that the stock ownership requirement of a foreign personal holding company should be the ownership of 50 per cent in value of its outstanding stock by not more than five individual citizens or residents of the United States, who are called “United States group” in- Section 331 and “United States shareholders” in Section 337; and Section 337 provided that the undistributed Supple-' ment P income of such a corporation must •be included in the gross income of such shareholders. Thereby the distinction between the corporate entity and its controlling United States shareholders was wiped out for the purposes of income taxation and the tax avoidance device of placing undistributed taxable income in a corporation outside the United States was frustrated.
But Congress did not intend to reach the income of persons, such as alien nonresidents, which was not subject to the laws of the United States when it was received by them or by a holding company subject to their control. If that part of the income of Mrs. Marsman, now sought to be taxed, which was earned prior to September 22, 1940, had been received by her instead of by her holding company prior to that date, no one would contend that it was subject to taxation by the United States when she became a resident of this country; and it is not reasonable to suppose that Congress intended that the statute should produce such an unlooked for result. The government’s answer to this view is that the taxpayer and the holding corporation are separate and distinct entities in the eye of the law, and hence the income of La Trafagona prior to September 22, 1940 was not the taxpayer’s income, when received, but became such only after she acquired a residence in this country and became subject to the provisions of the statute which converted undistributed income of a holding company into the income of the shareholders as of the last day of the year. We cannot agree with this analysis of the problem, for it not only extends the statute far beyond its announced purpose, but .it is inconsistent in itself in that it treats the taxpayer and the corporation as distinct legal persons during the first part of the year but as one and the same person after the taxpayer acquired her residence in the United States. If the government’s contention is sound, an alien? who controls a foreign holding company with undistributed income and becomes a resident of the United States on the last day of the year, and hence is a taxpayer of the United States for only a single day, would he subject to income tax upon the income for the entire year. We cannot attribute to the Congress of the United States the intent to accomplish such an extraordinary result.
A more reasonable approach has been taken by the Tax Court in the analogous situation which occurs when there is a change in the status of a taxpayer during the tax year, as where a taxpayer, who is exempt from income tax at the beginning of the year, loses the exemption in the course of the twelve months. Thus iu Economy Savings & Loan Co. v. Com’r, 6 Cir., 158 F.2d 472, a building and loan association, which was exempt from taxation because its business was substantially confined to making loans to members, lost its exemption during the year by changing substantially all of its business to lending money to depositors. Although the statute made no specific provision for such a contingency, ilie court held that the income for the portion of the year prior to the change of business operations was exempt but that the income for the remainder of the year was subject to taxation. See also Royal Highlanders v. C. I. R., 1 T.C. 184, reversed on other grounds, 8 Cir., 138 F. 2d 240; Reserve Loan Life Ins. Co. of Tex. v. C. I. R., 4 T.C. 732.
No reason is suggested, other than the insistence upon a literal interpretation of the statute regardless of results, why a similar procedure should not be followed in the pending case. Returns for a fractional part of the tax year are recognized by Section 48(a) of the Internal Revenue Code, 26 U.S.C.A. § 48(a). Such a return was required of the taxpayer for that part of the year which began when she took up her residence in this country; and if the taxpa3>-er is permitted to limit her report of the undistributed income of La Trafagona to the amount received by that corporation during the last 101 days of 1940, she will pay the tax on all the income received during the period when she was subject to the tax laws of the United States and the purpose of the statute will be effectuated.
This view is in accord with Ihe rule of interpretation enunciated in United States v. Amer. Trucking Ass’ns, 310 U.S. 534, 60 S.Ct. 1059, 84 L.Ed. 1345, where the court declined to interpret literally the word “employee” as found in the Motor Carriers Act, because it would place upon the Interstate Commerce Commission, contrary to the settled practice of Congress, the duty of regulating the qualifications of a large number of employees who had nothing to do with safety of operation. The court said, 310 U.S. at pages 543-544, 60 S.Ct. at page 1063:
“There is, of course, no more persuasive evidence of the purpose of a statute than the words by which the legislature undertook to give expression to its wishes. Often these words are sufficient in and of themselves to determine the purpose of the legislation. In such cases we have followed their plain meaning. When that meaning has led to absurd or futile results, however, this Court has looked beyond the words to the purpose of the act. Frequently, however, even when the plain meaning did not produce absurd results but merely an unreasonable one ‘plainly at variance with the policy of the legislation as a whole’ this Court has followed that purpose, rather than the literal words. When aid to construction of the meaning of words, as used in the statute, is available, there certainly can be no ‘rule of law’ which forbids its use, however clear the words may appear on ‘superficial examination.’ ”
The last question for decision relates to the right of the taxpayer to a credit against her United States income tax for the year 1941 of the amount of her Philippine income taxes for the years 1938 and 1940;A paid by her in 1941. In the last mentioned year, the taxpayer, her husband and daughter, filed joint Philippine income tax returns for the years 1938-41, and paid to the Philippine government 265,812.87 pesos for a deficiency in income tax for the year 1938, and 198,699.12 pesos for income tax for the year 1940.
The taxpayer bases her claim to the credit upon the literal unambiguous wording of Section 131 of the Internal Revenue Code, as amended by the Revenue Act of 1942, 26 U.S.C.A. § 131, as follows:
“Sec. 131(a) Allowance of Credit. — ■ If the taxpayer chooses to have the benefits of this section, the tax imposed by this chapter, except the tax imposed under section 102 or section 4S0, shall be credited with:
******
“(2) Resident of United States. — ■ In the case of a resident of the United States, the amount of any such taxes paid or accrued during the taxable year to any possession of the United States; and * *
“Section 131(b) Limit on Credit.— The amount of the credit taken under this section shall be subject to each of the following limitations:
“(1) The amount of the credit in respect of the tax paid or accrued to any country shall not exceed the same proportion of the tax against which such credit is taken, which the taxpayer’s net income from sources within such country bears to his entire net income, in the case'of a taxpayer other than a corporation, * *
The taxpayer contends that the full amount of the Philippine income taxes paid by her in 1941 is available to her as a credit against her United States income tax for that year because the payments fell clearly within the express terms of Section 131(a)(2) subject only to the limitation contained in Section 131(b) which in this case means that the amount, of the credit shall not exceed the same proportion of the United States tax as her taxable income derived from the Philippines bore to her entire income.
The Tax Court denied the credit as to 1938 entirely and allowed the credit as to 1940 only as to such portion of the Philippine income taxes as were allocable to the period between September 22 and December 31, 1940, during which the taxpayer was a resident of the United States. In so doing the Tax Court departed from its insistence upon the literal meaning of the applicable statute which it displayed in interpreting Section 337 of the Internal Revenue Code as shown above, and held that Section 131 should be so construed as to effect the Congressional purpose to allow a credit of taxes paid to other countries so as to lift the burden of double taxation from the shoulders of the taxpayer.
We are in accord with this interpretation. The Supreme Court has held that the primary purpose of the tax credit, which was first authorized by Section 222 of the Revenue Act of 1918 and is now found in Section 131, was to mitigate the evils of double taxation. See Burnet v. Chicago Portrait Co., 285 U.S. 1, 52 S.Ct. 275, 76 L.Ed. 587; American Chicle Co. v. United States, 316 U.S. 450, 62 S.Ct. 1144, 86 L.Ed. 1591; Hubbard v. United States, Ct.Cl., 17 F.Supp. 93, certiorari denied 300 U.S. 666, 57 S.Ct. 508, 81 L.Ed. 873. This, purpose will not be served and double taxation will not be avoided by allowing the credit now sought by the taxpayer because the 1938 and 1940 Philippine income taxes, paid by the taxpayer in 1941 were imposed upon income which was never subjected and could not be subjected to the United States income taxes for the reason that the taxpayer was a nonresident of the United States until September 22, 1940 and the Philippine income during these two. years was derived from sources outside the United States. To allow the credit under such circumstances would be to give preferred status to a citizen of the Philippines, as compared with a citizen of the United States, and it is not reasonable to suppose that such a result was within the contemplation of Congress.
Other cognate sections of the taxing statutes support this construction of Section 131. It is provided in Section 252 of the Internal Revenue Code, 26 U.S.C.A. §; 252, that an individual, such as the taxpayer, who was a citizen of a possession of' the United States but not otherwise a citizen of the United States, shall be taxed only on income derived from the United States, and that the tax must be computed. as in the case of other persons who are taxable only on income derived from the United States. These other persons are non-resident aliens who by the terms of Section 216 of the Code are expressly denied tax credits based on taxes paid to foreign countries and possessions of the United States. Consequently, if the taxpayer had had income from sources within the United States in 1938 or in 1940 prior to September 22, she would have been allowed no credit for the Philippine taxes paid for these years. In view of these provisions of the tax statutes relating to non-residents it would be anomalous to hold that when the taxpayer became a resident of the United States in 1940 and paid in 1941 overdue Philippine income taxes for 1938, she became entitled to a tax credit under Section 131 which could not have been allowed if the tax had been paid in the year when it was due and payable.
The taxpayer relies on the decision of this court in Helvering v. Campbell, 4 Cir., 139 F.2d 865, where we held that a United States citizen residing in the Philippine Islands was entitled to a credit for the entire Philippine income tax and not merely to a credit for the taxes paid on a portion of the income. But this decision related not to the right to a credit for Philippine taxes paid during the year but to the amount of the credit to be allowed, and we do not regard it as controlling in the present case.
The decision of the Tax Court will be affirmed as to the question of residence and the question of the proper tax credit to be allowed, and will be reversed as to the amount of the undistributed income of La Trafagona to be included in the income of the taxpayer subject to the United States income tax, and the case will be remanded for further proceedings in accordance with this opinion.
Reversed and remanded.
. It is conceded that the taxpayer’s income under Philippine law is community property and that she is chargeable for only one-half of the undistributed property of La Trafagona.
. Section 29.211-2 of the Regulations also provides that an alien whose stay is limited to a definite period by the immigration laws is not a resident in the absence of' exceptional circumstances; and Section 29.211 — 4 states that an alien is presumed to be a non-resident but that the presumption may be overcome by proof that his stay in this country has been of such an extended nature as to constitute Mm a resident. It is evident, however, that these provisions do not conflict with the conclusion that has been reached.
Question: What forum heard this case immediately before the case came to the court of appeals?
A. Federal district court (single judge)
B. 3 judge district court
C. State court
D. Bankruptcy court, referee in bankruptcy, special master
E. Federal magistrate
F. Federal administrative agency
G. Court of Customs & Patent Appeals
H. Court of Claims
I. Court of Military Appeals
J. Tax Court or Tax Board
K. Administrative law judge
L. U.S. Supreme Court (remand)
M. Special DC court (not the US District Court for DC)
N. Earlier appeals court panel
O. Other
P. Not ascertained
Answer:
|
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
ANDERSON CO. et al. v. LION PRODUCTS CO., Inc., et al.
No. 3727.
Circuit Court of Appeals, First Circuit.
April 24, 1942.
George T. Bean, of New York City, and Fish, Hildreth, Cary & Jenney, of Boston, Mass. (Melvin R. Jenney, of Boston, Mass., and Edgar F. Baumgartner and Kenyon'& Kenyon, all of New York City, on the brief), for appellants.
Arthur D. Thomson, of Boston, Mass. (Thomson & Thomson, of Boston, Mass., on the brief), for appellees.
Before MAGRUDER, MAHONEY, and WOODBURY, Circuit Judges.
MAHONEY, Circuit Judge.
The plaintiffs, The Anderson Company and Productive Inventions, Inc., Indiana corporations, brought suit in the district court for the infringement of three patents, namely: Nilson and Prince No. 1,597,999, hereinafter called the Nilson patent, Anderson No. 1,853,715 and Anderson No. 1,950,-588. The defendants, Lion Products Co., Inc., a Massachusetts corporation, and Max Zaiger, a resident of that state, pleaded the defenses of invalidity and non-infringement. The district court held the patents invalid for lack of invention, entered its judgment for the defendants and the plaintiffs have appealed. The plaintiffs have not in their briefs or in the oral argument before us pressed the appeal on the first two patents, and the appeal is now limited to the judgment in so far as it relates to patent No. 1,950,588. Without giving further consideration to them, we affirm the judgment of the district court on patents Nos. 1,597,-999 and 1,853,715.
The plaintiff, Productive Inventions, Inc., is the owner by assignment of patent No. 1,950,588 issued March 13, 1934 to John W. Anderson, and the plaintiff, the Anderson Company, has been since December 1, 1936, and now is the exclusive licensee of the plaintiff, Productive Inventions, Inc., under said patent.
The patent under consideration concerns a windshield wiper consisting of a U-shaped or channel holder with side portions bent or curved outwardly at the outer edges so that the open side of the holder is flared, an enlarged head of single ply, triangular in cross-section, with longitudinally extending arrises or sharp edges, and an integral flexible flange connecting the head portion with the holder. The specification states that this windshield wiper has both the advantages of a single ply and a multi-ply wiper and is particularly efficient under all weather and climatic conditions. It is asserted that water, moisture and snow do not get in and freeze as in the multi-ply heads, and dirt and other elements cannot penetrate between the plies and cause deterioration of the wiper element. It states that the wiper and holder are so constructed that the wiper element is at all times maintained in operative contact with the surface to be wiped and is so supported by the flared edge that it does not at any time lie flat with the glass but has a scraping or cleaning effect as it travels across the windshield.
All five claims are in issue and are as follows :
“1. In a device of the kind described and in combination, a wiper element and holder therefor, said wiper element consisting of an enlarged head portion provided with a flexible body arranged on the head and operating to connect the head to its holder, said holder consisting of a channel-shaped element having its sides adjacent the closed end spaced a distance substantially equal to the thickness of the body of the wiper element, the outer free edges of the sides of the channel being outwardly flared, the wiper element being so disposed in its holder that a portion of the body constitutes a flexible hinge portion connecting the head and holder which may overlie and contact with the flared over edge of the adjacent channel side when the wiper element is flexed toward that side.
“2. In a device of the kind described and in combination, a single ply wiper element and holder therefor, said wiper element consisting of a head portion of triangular cross-section provided with a flexible body of less thickness than the width of the head portion extending from the base of the head and operative to connect the head to its holder, said holder consisting of a channel-shaped element having its sides adjacent the closed end spaced a distance substantially equal to the thickness of the body- of the wiper element, the outer free edges of the sides of the channel being outwardly flared, the wiper element being so disposed in its holder that the shoulders on the underside of the head lie adjacent the free edge of the adjacent channel side when the wiper element is flexed toward and into engagement with that side.
“3. A wiper blade comprising a head which is substantially triangular in cross section, the opposite sides of said head having longitudinally extending arrises, and an integral flexible body extending from the base of the head in a plane substantially perpendicular to said base.
“4. A wiper blade comprising a head which is substantially triangular in cross section, the opposite sides of said head having longitudinally extending arrises, an integral body extending from the base of the head and being positioned within the marginal edges of said base, said body being arranged in a plane substantially perpendicular to said base and being flexibly connected to said head.
“5. A windshield wiper blade comprising a head which is substantially triangular in cross-section, the opposite sides of said head having longitudinally extending arrises, and a body of relatively narrow cross-section connected to said head and extending from the base thereof between the lateral extremities of the head, said body being capable of yielding to permit the lateral movement of said head with relation to said body as the head is moved in opposite directions across the-surface of a windshield.”
The district court - held that the flared edges described in plaintiffs’ claims 1 and 2 were anticipated by the Nilson patent. In reaching the conclusion that the Nilson patent was invalid, reliance was placed upon the Lane patent No. 948,630 (a window cleaner and holder with a flared edge on one side)', Conant No. 1,062,322 (a window cleaner and holder with flared edges) and Green No. 1,397,511 (a windshield cleaner and holder with flared edges). We do not give great emphasis to the latter three patents but in so far as they refer to the flared edges they buttress the holding of invalidity of the claims now under consideration. An examination of the specification and the single claim of the Nilson patent discloses very clearly the idea of flared or curved edges. The improvement there described is the U-shaped holder with edges receding away from each other so that the flexible portion of the head and the curved edges of the holder come into gradual contact instead of the usual abrupt contact found in the operation of holders without flared edges. The same idea of curved edge or edges is found in the patents to which reference has been made. In all of these patents the purpose of the flared edges is to assure the gradual contact of the wiping portion and the holder.
It is strenuously urged by plaintiffs that the lower court failed to perceive the true nature of claims 1 and 2. They do not deny that the principle of flared edges is to be found in the Nilson patent. They contend, however, that what is new in claims 1 and 2 is not the flared edges per se but the cooperation between the flared edges and the enlarged head of triangular cross-section which permits a shoulder of the wiper element to rest against the flared edge of the holder, thus preventing too great a flexing of the head. This they say is a new function. The asserted advantage derived from the cooperation of the head and the flared edges is that the head is always maintained in a proper position, even under abnormal weather conditions, and that the head is more easily reversed on the return stroke of the wiper, with the result that a more efficient cleaning of the windshield is at all times assured. The purpose of the flared edges in the prior patents, they urge, is to prevent the cutting of the wiper blade and that no thought was given in those patents to the unitary operation of the holder and the wiper element. We do not find that the true import of claims 1 and 2 was misconceived by the lower court. As it said, 36 F.Supp. 474, 478: “They [claims 1 and 2] cover the alleged invention of the curved edges of the holder, already described in the Nilson patent, and tlvese flared edges performed the samre function here.” (Italics supplied.) It seems clear that the argument advanced by plaintiffs was considered and rejected. We are constrained to conclude, as did the district court, that the testimony of plaintiffs’ expert concerning the “pressure of the blade on the windshield, frictional resistance, the locus of flexure, angle of flexure, disposition of strain” was merely an explanation of how “the wiper worked as it proceeded across the windshield. It did not aid in revealing any new and useful function performed by the claimed combination.” The fact that Anderson saw more clearly or described more adequately the cooperation of the holder and the wiper element does not alter the fact that the same principle is found in operation in the prior patents. No new function was produced by him. Bailey v. Sears, Roebuck & Co., 9 Cir., 1940, 115 F.2d 904, 906 certiorari denied 62 S.Ct. 82, 86 L.Ed.-.
Claims 1 and 2 were held invalid for the further reason that they claim too much. The lower court held that the enlarged head portion with the flexible body in claim 1 and the head portion of triangular cross-section with the flexible body and the added element of shoulders to stop flexing in claim 2 did not constitute invention. It said that even if it assumed that they were invention, the claims would still be invalid because included within them were the flared edges. Lincoln Engineering Co. v. Stewart-Warner Corp., 1938, 303 U.S. 545, 549, 58 S.Ct. 662, 82 L.Ed. 1008. Plaintiffs argue that claims 1 and 2 do not fall within the Lincoln Engineering Co. case because, as noted, the cooperation between the flared edges and the head portion of the wiper is a new function. What we have said above disposes of plaintiffs’ argument.
Claims 3, 4 and 5 were held invalid for lack of invention. They refer to the wiper blade and flange or body. No reference is made to a holder with flared edges in these claims. While the lower court cited the French patent to Eyquem, No. 589,365 (1925) as disclosing a channel shaped holder “embracing a wiping organ made up of a rubber blade comprising .longitudinal ribs and grooves forming arrises as described in claims 3, 4, and 5” and while it cited other patents which have enlarged heads or wiping edges, it did not rely upon them for its conclusion. The court said: “Assuming, and granting, that the Anderson head is better, the same idea is there in Eyquem, and that is enough. If Anderson depended alone upon this feature for patentability, and Eyquem did not precede him, I could not find that substituting several wiping edges in a single head for multi-ply edges, which were old, reflects any uncommon talent. It is display in my opinion of the skill of the calling.” We agree with this conclusion.
A mere aggregation of parts and processes already known in the art will not support the grant of monopoly which the patent law gives to inventive genius. A new combination of old elements alone is not patentable, and a mere utilization of what is known in the prior art even though the result is an improvement over what has gone before and even though the finished product is different in shape and form is not invention. Something more is required. Invention cannot be claimed unless the patentee can show by his achievement that spark of ingenuity which distinguishes invention from mere improvement. Cuno Engineering Corporation v. Automatic Devices Corporation, 1941, 314 U.S. 84, 62 S.Ct. 37, 86 L. Ed. -; Mantle Lamp Co. v. Aluminum Products Co., 1937, 301 U.S. 544, 57 S.Ct. 837, 81 L.Ed. 1277; Hotchkiss v. Greenwood, 1851, 11 How. 248, 13 L.Ed. 683.
We have carefully examined the record and have found that while the Anderson patent is concededly an improvement over the Nilson and Eyquem patents and while it may be conceded that the single ply blade is an improvement over the multi-ply wiper, the stringent test of invention has not been met.
The plaintiffs rely on cases in which reference is made by the courts to the commercial success of the patented article to’ prove invention. These cases are not in point. Mere improvement of a product though it meets with popular acceptance as manifested by commercial success is not a substitute for invention. Commercial success can only aid the court in finding patentability when lack of invention is far more doubtful than it is in this case. Altoona Publix Theatres, Inc., v. American Tri-Ergon Corp. et al., 1935, 294 U.S. 477, 487, 55 S.Ct. 455, 79 L.Ed. 1005, It is, of course, true that a court looking back may lose sight of inventive genius because of the simplicity of the finished product. We are satisfied, however, in the case before us, that Anderson, though he may have achieved an improvement in the wiper blade and holder, has not produced anything which merits the protection of the patent law.
Since we have determined that the patent in issue is invalid because of lack of invention, it is unnecessary to consider the question of infringement.
The judgment of the District Court is affirmed, with costs to the appellees.
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_casetyp1_7-2
|
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".
Jane G. KELLY v. Agnes J. Reeves GREER and Mellon National Bank and Trust Company Jane G. Kelly, Individually and/or on Behalf of Her Children, Richard Greer Raese, John Reeves Raese, David Aubrey Raese and Jane Kelly, Appellants. Jane G. KELLY v. Agnes J. Reeves GREER and Pittsburgh National Bank.
Nos. 15372, 15373.
United States Court of Appeals Third Circuit.
Argued Dec. 10, 1965.
Reargued May 19, 1966.
Decided Sept. 7, 1966.
See also, D.C., 354 F.2d 209.
Henry W. Sawyer, III, Philadelphia, Pa. (Drinker, Biddle & Reath, Philadelphia, Pa., on the brief), for appellants.
Gilbert J. Helwig, Pittsburgh, Pa. (G. Donald Gerlach, Reed, Smith, Shaw & McClay, Pittsburgh, Pa., Richard F. Stevens, Baker, Hostetler & Patterson, Cleveland, Ohio, on the brief), for appellees.
Before STALEY, Chief Judge, and KALODNER and FORMAN, Circuit Judges.
OPINION OF THE COURT
KALODNER, Circuit Judge.
These are appeals from a Memorandum Order of the District Court for the Western District of Pennsylvania entered April 14, 1965 dismissing all pending motions in this action and requiring the parties to proceed to carry out the terms of a “Settlement Stipulation” in accordance with the District Court’s instructions. The Order was a consequence of a Mandate sent down by this Court, following our Opinion in these preceedings, 334 F.2d 434 (1964), which vacated earlier Orders of the District Court and remanded the cause for further proceedings.
Plaintiff, Jane G. Kelly, complains that the Memorandum Order of the District Court is improper in that it deprives her of her right to pursue her legal remedies. We find no merit in this contention.
For the purposes of this appeal, the history of this long, drawn-out litigation involving an intrafamily dispute between daughter, Jane G. Kelly, and mother, Agnes J. Reeves Greer, may be summarized as follows: In 1959 the present plaintiff brought an action in the Western District against the present defendant and the Mellon National Bank and Trust Company seeking an adjudication regarding her rights in certain shares of stock of the Union Gas Company of Canada, Ltd. held by the Bank. In 1961 plaintiff brought a second action in the Western District against the defendant and the Pittsburgh National Bank to recover dividends deposited in the Pittsburgh Bank in defendant’s name. Both of these suits were in rem actions, service of the defendant having been accomplished pursuant to 28 U.S.C.A. § 1655. In May 1961, the District Court consolidated the two actions, and this was upheld on appeal. Kelly v. Greer, 295 F.2d 18 (3 Cir. 1961).
There followed a period of extensive discovery and pretrial extending to January 1963. The parties then began negotiations -to settle the litigation as well as all other existing disputes between them. From time to time, the District Court assisted in these negotiations. On January 22, 1963 the parties advised the District Court that a settlement had been reached and submitted a “Stipulation and Agreement” which provided for a general resolution of all disagreements between the parties and called for the dismissal of all actions then pending between plaintiff and defendant. The “Stipulation and Agreement” was then made part of the record. Pursuant to its terms, counsel executed a Stipulation for the dismissal of the civil actions in the Western District, and the District Court entered an Order dismissing the suits with prejudice on January 23, 1963.
Execution of the “Agreement” was to be carried out in accordance with paragraph XX which read:
“XX. Prior to March 1, 1963, the attorneys for the parties will draw up the definitive agreement needed to carry out the above plan and will establish a calendar for the transfer of assets or delivery of documents or dismissals needed. It is intended that the details of this settlement will be carried out before May 1, 1963, except that all pending suits shall be dismissed with prejudice forthwith.”
Later, a dispute arose between the parties concerning compliance with the terms of the settlement agreement. On March 11, 1963 plaintiff filed a motion to vacate the dismissal Order and to compel performance of the “Settlement Stipulation.” On April 5, 1963 this motion was withdrawn, and an ancillary complaint was filed seeking damages for alleged breach of the settlement agreement. On July 9, 1963 a second ancillary complaint was filed requesting a judgment declaring that the settlement agreement was valid and enforceable. Defendant moved to dismiss the complaints for lack of personal jurisdiction, and plaintiff moved for summary judgment on her second ancillary complaint. On October 17, 1963 the District Court dismissed the complaints for lack of jurisdiction. Thereafter, plaintiff moved to vacate the dismissal Order of January 23, 1963. The motion was denied on November 13, 1963 and plaintiff appealed.
In Kelly v. Greer, 334 F.2d 434 (3 Cir., 1964), we held that “the district court has jurisdiction to vacate its own orders of dismissal which were based upon the stipulation of the parties in reliance upon their settlement agreement.” (334 F.2d at 436). We vacated “the orders of October 17 and November 13, 1963”, and remanded “the cause to the district court with directions to vacate its orders dismissing the original actions and reinstate them to the status quo existing immediately prior to the entry of the orders of dismissal, i. e., following the reading into the record of the settlement agreement but prior to the orders dismissing the actions.” (334 F.2d at 437)
In accordance with the Mandate of this Court, an Order was entered by the District Court on September 23, 1964 vacating its Orders of October 17 and November 13, 1963 and setting a time for a hearing on all matters presently pending in the litigation; viz., the question of reinstating plaintiff’s original actions, and the status of plaintiff’s two ancillary complaints and the motion for summary judgment. Prior to that hearing, plaintiff filed two additional motions; one for the entry of a consent judgment, nunc pro tunc, and the other for injunctive relief pendente lite.
On December 17, 1964, a hearing was held at which time the District Court dismissed the petition for injunctive relief and reserved ruling on the other pending motions. Subsequent to this hearing plaintiff filed an amended motion for injunctive relief and a motion to calendar her ancillary complaints for jury trial. On April 14,1965 the District Court entered the Memorandum Order under review. This Order stated that “the parties are bound by the terms of the settlement stipulation read into the record on January 22, 1963”, and that “it is hereby ordered that the same be complied with.” The District Court in the Order established a calendar to effectuate compliance.
Plaintiff has appealed from this Memorandum Order claiming that the District Court has selected her remedy for her. We do not agree. The Order is not an attempt to seek remedies for the parties involved in this litigation, but an exercise of the District Court’s power to summarily enforce settlement agreements entered into with its approval. It is settled that the District Court acted within its powers.
In Cummins Diesel Michigan, Inc. v. The Falcon, 305 F.2d 721 (7 Cir. 1962), the Court stated:
“Federal and State Courts have held under a great variety of circumstances that a settlement agreement or stipulation voluntarily entered into cannot be repudiated by either party and will be summarily enforced by the Court.” (at 723)
In Main Line Theatres, Inc. v. Paramount Film Distributing Corporation, 298 F.2d 801 (3 Cir. 1962), cert. den. 370 U.S. 939, 82 S.Ct. 1585, 8 L.Ed.2d 807, Judge Hastie in discussing the effect to be given to a settlement agreement said:
“We are satisfied that the parties entered into a valid contract to settle, upon condition that the other suits also be settled. Thereafter, neither party was free to repudiate the agreement during the short period required to accomplish the settlement of the other suits.” (at 804)
Similar expressions are to be found in the state courts. The Pennsylvania Supreme Court in reviewing a court’s power over a settlement agreement in Melnick v. Binenstock, 318 Pa. 533, 179 A. 77 (1935) concluded that:
“Where the right of one of the parties to such an agreement compromising pending litigation is contested, the true interpretation of the agreement should be found by the court in which the litigation was pending or if in equity, within the terms of the decree entered in accordance with the compromise. * * * A compromise or settlement of litigation is always referable to the action or proceeding in the court where the compromise was effected; it is through that court the carrying out of the agreement should thereafter be controlled. Otherwise the compromise,, instead of being an aid to litigation,, would be only productive of litigation as a separate and additional impetus.”' (318 Pa. at 536, 179 A. at 78)
The District Court’s Order is consistent with the above stated principle and with the Mandate of this Court. The litigation having been restored by our Mandate to a position where the “Stipulation and Agreement” had been read into the record but the suits not yet dismissed, the District Court quite properly ordered that both parties comply with it.
Finally, plaintiff’s belief that the District Court’s Order will deprive her of certain legal rights is without foundation. More particularly, plaintiff contends that the Memorandum Order prevents her from seeking damages she claims to have suffered by reason of alleged breaches of the “Stipulation and Agreement” by defendant following the dismissal of the suits on January 23, 1963. The record of the December 17, 1964 hearing makes quite clear the District Court’s readiness to hear the question of breach of the agreement. At that time, the trial judge said:
“ * * * I believe the Court of Appeals has recognized the fact that it is necessary to look into the question of who breached the agreement. I am perfectly willing to hear evidence, arguments or anything else on these points. * * *”
******
“Mr. Arkin: ‘Will your Honor impanel a jury for the issues with respect to breach if that is determined?’
“The Court: T would expect to do so if counsel requested it, probably an advisory jury.’ ”
We do not see how the Memorandum Order estops plaintiff from pursuing her remedies for breach of the settlement agreement and the granting of appropriate relief. See All States Investors, Inc. v. Bankers Bond Company, Inc., 343 F.2d 618, 624 (6 Cir. 1965), cert. den. 382 U.S. 830, 86 S.Ct. 69, 15 L.Ed.2d 74.
For the reasons stated, the Memorandum Order of the District Court will be affirmed without prejudice to the plaintiff to make subsequent application to the District Court for recompense for any damages she might have sustained as a result of any breach by defendant of the “Agreement”.
. Plaintiff is a citizen of Florida and defendant is a citizen of West Virginia. Neither resides in the Western District but the property which is the subject of the suits is located there.
. Defendant, of course, vigorously denies any such breaches.
Question: 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_usc1sect
|
2254
|
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".
Kenneth GRIFFIN, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Respondent-Appellee.
No. 84-3196.
United States Court of Appeals, Eleventh Circuit.
May 10, 1985.
Rehearing and Rehearing En Banc Denied June 21, 1985.
Patterson, Bleknap, Webb, & Tyler, Fred Davis, New York City, for petitioner-appellant.
Jim Smith, Atty. Gen., State of Fla., Wallace Allbritton, Tallahassee, Fla., for respondent-appellee.
Before KRAVITCH and HATCHETT, Circuit Judges, and HANCOCK , District Judge.
Honorable James H. Hancock, U.S. District Judge for the Northern District of Alabama, sitting by designation.
PER CURIAM:
In this death penalty case, we review the district court’s order denying appellant, Kenneth Griffin’s, application for a stay of execution and petition for writ of habeas corpus pursuant to 28 U.S.C.A. § 2254 (West 1977). We affirm in part and remand in part.
BACKGROUND
On March 15, 1979, appellant, Kenneth Griffin, was convicted of killing two young men during the robbery of a convenience store. In accordance with the jury’s recommendation, the trial court imposed the death sentence. On direct appeal, the Supreme Court of Florida affirmed Griffin’s conviction and sentence of death. See Griffin v. State, 414 So.2d 1025 (Fla.1982) (Griffin I).
On April 20, 1983, Griffin collaterally attacked his conviction and sentence. In doing so, Griffin filed a Motion to Vacate, Set Aside or Correct Conviction and Sentence and Order a New Trial. Griffin later amended and supplemented the aforementioned motion. On February 21, 1984, the Governor of Florida signed a death warrant which ordered that Griffin be executed on March 19, 1984.
On March 9, 1984, the state trial court held an evidentiary hearing on Griffin’s claim of ineffective assistance of trial counsel, but denied the remainder of Griffin’s claims as barred by procedural default.
After the evidentiary hearing, the state trial court entered an opinion denying Griffin’s motion for post conviction relief under Florida Rule of Criminal Procedure 3.850. From this adverse ruling, Griffin filed in the Supreme Court of Florida a petition for writ of habeas corpus, an application for stay of execution, and an appeal from the trial court’s order denying the amended motion.
On March 16,1984, the Supreme Court of Florida affirmed the trial court’s order and, thereby, denied the petition for writ of habeas corpus and the application for stay of execution. Griffin v. State, 447 So.2d 875 (Fla.1984) (Griffin II). That same day, Griffin filed in the United States District Court for the Middle District of Florida an application for a stay of execution and a petition for a writ of habeas corpus.
After granting a temporary stay of execution and reviewing the entire record, the district court denied Griffin’s petition for writ of habeas corpus and application for a stay of execution, 588 F.Supp. 1549. The district court, thereafter, ruled that its temporary stay of execution would remain in full force and effect until 7 a.m. Friday, March 23, 1984, to allow Griffin an opportunity to appeal the court’s decision. Additionally, pursuant to 28 U.S.C.A. § 2253 (West 1971), the district court granted Griffin a certificate of probable cause to appeal.
ISSUES
We must determine: (1) whether Griffin received ineffective assistance of counsel; (2) whether the district court erred in refusing to grant Griffin an evidentiary hearing; (3) whether the prosecutor’s reference to race as a means of .identification deprived Griffin of due process and equal protection of the laws; (4) whether Griffin’s capital sentence is unconstitutional under the principles of Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982); (5) whether Griffin was denied his right to an impartial jury; and (6) whether the death penalty has been discriminatorily imposed against Griffin in this case.
DISCUSSION
I. Ineffective Assistance of Counsel
Appellant, Kenneth Griffin, contends that his counsel, a special public defender assigned to represent him, did not provide effective assistance of counsel at pretrial, trial, penalty proceedings, and on appeal. Thus, Griffin contends that he was deprived of effective assistance of counsel in violation of the sixth and fourteenth amendments to the United States Constitution. The state trial court, the Supreme Court of Florida, and the United States District Court for the Middle District of Florida have all held that this claim is without merit. We agree.
Griffin enumerates the following areas of alleged deficiencies in his counsel’s performance: (1) failure to meet with him; (2) failure to attend depositions; (3) failure to object to irrelevant and prejudicial racial remarks made by the prosecutor at trial; (4) failure at the penalty stage to present a case in mitigation; and (5) failure to raise the prosecutorial misconduct claim on direct appeal.
In Strickland v. Washington, — U.S. -, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Supreme Court articulated the test under which claims of ineffective assistance of counsel are reviewed. First, a convicted defendant must show that counsel’s performance was deficient. This, however, requires proof that counsel made errors so egregious that counsel was not functioning as the “counsel” guaranteed the defendant by the sixth amendment. Second, the convicted defendant must show that the deficient performance prejudiced his defense. To satisfy this second prong, the defendant must demonstrate that counsel’s errors were so serious as to deprive the defendant of a fair trial. Strickland, — U.S. at -, 104 S.Ct. at 2064, 80 L.Ed.2d at 693. After enunciating this two-prong test, the court unequivocally stated that unless a defendant satisfies this test, he fails to demonstrate that counsel’s assistance was so defective as to require reversal of his conviction or death sentence. Strickland, — U.S. at-, 104 S.Ct. at 2064, 80 L.Ed.2d at 693.
Accordingly, before we can reverse Griffin’s conviction or death sentence, Griffin must establish that his counsel was ineffective and that actual prejudice resulted therefrom. Griffin’s claim of ineffective assistance of counsel is a mixed question of law and fact. Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980); Washington v. Watkins, 655 F.2d 1346, 1354 (5th Cir.1981). In resolving Griffin’s claim, we must examine the totality of the circumstances and the entire record. Palmes v. Wainwright, 725 F.2d 1511, 1519 (11th Cir.1984) (citing Goodwin v. Balkcom, 684 F.2d 794, 804 (11th Cir.1982), cert. denied, 460 U.S. 1098, 103 S.Ct. 1798, 76 L.Ed.2d 364 (1983)).
A writ of habeas corpus issued pursuant to 28 U.S.C.A. § 2254 (West 1977) in effect vacates either the factual or legal conclusions reached by the state court system under which the petitioner was convicted. Congress, however, in 28 U.S.C.A. § 2254(d) intended not only to minimize the inevitable friction between the state and federal courts, but to mandate that factual findings made by the state court system “shall be presumed to be correct.” This presumption of correctness attaches unless one of seven conditions specifically set forth in 28 U.S.C.A. § 2254(d) is found to exist by the federal habeas corpus court or the court concludes that the relevant state court determination is not “fairly supported by the record.” Title 28 U.S.C.A. § 2254(d)(8). On appeal, the burden rests upon the appellant to establish by convincing evidence that the state court findings of fact are erroneous or that one of the seven conditions set forth in 28 U.S.C.A. § 2254(d) exists. Sumner v. Mata, 449 U.S. 539, 550, 101 S.Ct. 764, 770, 66 L.Ed.2d 722 (1981). With these principles in mind, we now examine Griffin’s claim of ineffective assistance of counsel.
A. Pretrial Stage
Griffin contends that he was denied the effective assistance of counsel because his trial counsel failed to conduct adequate pretrial investigation. Specifically, Griffin alleges that his counsel: (1) spent virtually no time with Griffin prior to trial; (2) failed to ask Griffin about key witnesses in the case; (3) failed to ask Griffin about the identity or existence of witnesses with exculpatory and mitigating evidence; (4) failed to question potential witnesses; and (5) failed to attend fourteen pretrial depositions taken by counsel for co-defendant Robert John Hinson and by the state.
1. Pretrial Investigation
Griffin contends that his counsel’s assistance at the pretrial stage of the proceedings was deficient and prejudicial to his defense. In sum, Griffin alleges that his counsel failed to meet with him and to investigate the facts underlying the indictment. At the state court evidentiary hearing, Griffin testified that his counsel never saw him until two weeks prior to the trial. The state court found that this testimony was “untruthful.” The Supreme Court of Florida affirmed the trial court’s order.
Brevity of time spent in consultation, without more, does not establish that counsel was ineffective. Easter v. Estelle, 609 F.2d 756 (5th Cir.1980). Thus, it is not enough for Griffin to allege that counsel only met with him once before trial “as long as counsel devoted sufficient time to ensure an adequate defense and to become thoroughly familiar with the facts of the case and the law applicable to the case.” Easter v. Estelle, 609 F.2d at 759.
At the state court habeas corpus hearing, counsel for Griffin testified that “with the time that I interviewed Mr. Griffin, there was plenty of time, with the information that I got from him, there was time to do anything I could have done with it.” After receiving evidence on Griffin’s ineffective assistance of counsel claim, the state trial court found that Griffin suffered no actual or substantial detriment. The court concluded that Griffin’s constitutional right to effective assistance of counsel was not violated. The Supreme Court of Florida affirmed. (Griffin II at 884.)
On federal habeas corpus, the district court, after a thorough review of the entire record, found that counsel for Griffin did “spend sufficient time to develop an adequate defense.” Thus, the district court concluded that the state court’s factual determination was “fairly supported by the record.” Sumner v. Mata, 449 U.S. at 550, 101 S.Ct. at 770.
In sum, the district court did not find that any of the seven conditions set forth in section 2254(d) existed. The district court, however, did find that the state court determination was supported by the record. Title 28 U.S.C.A. § 2254(d)(8). The burden, therefore, rests on Griffin, whose case has run the entire gamut of the state judicial system, to establish “by convincing evidence that the factual determination of the State court was erroneous.” Title 28 U.S. C.A. § 2254(d).
Like the district court, we are not convinced that counsel for Griffin did not spend sufficient time with Griffin to prepare an adequate defense and to thoroughly familiarize himself with the facts of the case and the applicable law. Correspondingly, we reject Griffin’s claim of ineffective assistance of counsel on this ground inasmuch as Griffin has not shown that the state and district court findings on this issue are erroneous.
2. Counsel’s Failure to Attend Depositions and Question Potential Witnesses
Griffin contends that the complete inadequacy of his counsel’s pretrial preparation is evidenced by his counsel’s failure to appear at fourteen depositions. The state court found, and the district court agreed, that Griffin’s counsel was not given notice of seven depositions scheduled on December 27,1978. As for the other seven depositions which he did not attend, Griffin’s counsel testified that he decided not to attend the depositions because of his belief that counsel for Griffin’s co-defendant, Hinson, would adequately represent Griffin’s interest. Griffin’s counsel, however, secured and used copies of these depositions in preparation for trial.
Additionally, the state court found, and the district court concurred, that Griffin’s counsel, after missing the depositions of witnesses Bryant and Henry, did not redepose these witnesses for sound strategic reasons. Counsel did not redepose Henry because counsel had the benefit of Henry’s deposition and did not want to afford Henry a chance to rehabilitate prior statements made in his earlier deposition. At trial, counsel used Henry’s deposition for impeachment purposes. Counsel did not redepose Bryant because in addition to the deposition of Bryant, counsel had a copy of Bryant’s lengthy statement. Counsel deemed sufficient the information contained in these documents.
The state court found that prior to trial, counsel conferred with potential witnesses such as Carter, Cooter, and Bryant. The state court also found that counsel had an investigator who assisted him in pretrial discovery. As for other potential witnesses with exculpatory and mitigating evidence, counsel testified, and the state court found, that Griffin never informed counsel of other potential witnesses. Griffin has not shown that the state court’s findings are erroneous or that he was prejudiced by his trial counsel’s deficient performance.
This claim really reduces itself to counsel’s failure to call Crosby, who would have testified that Griffin was an excellent and willing worker, that he was well disciplined, and never displayed any violent tendencies. Counsel, of course, is never required to call every possible witness. Surely, counsel is not required to call a witness to testify to facts such as lack of violent nature when the jury has rejected such an approach and has found that the defendant is guilty of murder. We, therefore, reject Griffin’s claim that he received ineffective assistance of counsel because his counsel failed to attend specified depositions and question potential witnesses.
B. Trial
Griffin asserts that his trial counsel was ineffective because he failed to object to prejudicial racial remarks made by the prosecutor. Griffin points to the prosecutor’s five references to the victim(s) as “white male boy,” “white boy,” or “white males” in an 844 page trial transcript. The state court found that two references to the victims’ race were made during voir dire and that “these were made entirely” for identification purposes. Additionally, the state court found that two other references, for the exact same purpose, were made during the prosecution’s opening statement, and once during questioning of witness Bryant. Griffin II at 882. After a careful review of the entire record, the state court concluded, and the district court concurred, that “this trial was conducted unblemished by any racial slurs or inferences.” Griffin II at 882. We agree.
We acquiesce in the state and district courts’ findings that the prosecutor made the references to the victims’ race for identification purposes. The sixth amendment right to effective assistance of counsel does not mandate that counsel raise every conceivable objection without regard to its merits. Griffin’s trial counsel, therefore, cannot be deemed ineffective for his failure to raise a tenuous objection to the prosecutor’s remarks. Palmes v. Wainwright, 725 F.2d 1511, 1522-23 (11th Cir. 1984). Given the totality of the circumstances, it is clear that counsel was “reasonably effective” even though he did not object to the prosecutor’s references to the victims’ race.
C. Penalty Stage
Griffin also contends that his counsel was deficient in the presentation of the case in mitigation at the penalty stage. Griffin argues that his counsel failed to present a viable case in mitigation, despite the fact that a number of individuals were willing and available to provide precisely the type of information relevant to an effective mitigation presentation. This argument misses the mark.
While reviewing ineffective assistance of counsel claims, this court does not sit to second guess considered professional judgment with the benefit of 20/20 hindsight. Washington v. Watkins, 655 F.2d 1346, 1355 (5th Cir.1981), cert. denied, 456 U.S. 949, 102 S.Ct. 2021, 72 L.Ed.2d 474 (1982). Indeed, we have continuously held that counsel will not be deemed constitutionally deficient merely because of tactical decisions. Ford v. Strickland, 696 F.2d 804 (11th Cir.1983); United States v. Guerra, 628 F.2d 410 (5th Cir.1980), cert. denied, 450 U.S. 934, 101 S.Ct. 1398, 67 L.Ed.2d 369 (1981); Buckelew v. United States, 575 F.2d 515 (5th Cir.1978). Notwithstanding the possibility that other lawyers may have employed another strategy, a finding of constitutionally ineffective representation is not automatically mandated. Baty v. Balkcom, 661 F.2d 391, 395 n. 8 (5th Cir. Unit B 1981), cert. denied, 456 U.S. 1011, 102 S.Ct. 2307, 73 L.Ed.2d 1308 (1982); Baldwin v. Blackburn, 653 F.2d 942, 946 (5th Cir.1981).
Established legal precedent does not require that counsel, in order to be effective, submit to the jury all arguably mitigating character evidence that might exist. See Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982); Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978); Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976) (by implication). Moreover, in Stanley v. Zant, 697 F.2d 955 (11th Cir.1983), this court expressly stated that in some cases:
[C]ounsel could reasonably conclude that such evidence [character evidence] would be of little persuasive value or that it would cause more harm than good by opening the door for harmful cross-examination or rebuttal evidence____ Having conducted a sufficient investigation, counsel may make a reasonable strategic judgment to present less than all possible available evidence in mitigation.
Stanley, 697 F.2d at 965.
Similarly, in Williams v. Maggio, 679 F.2d 381 (5th Cir.1982) (en banc), the petitioner argued that his trial counsel was ineffective because counsel failed to conduct an adequate investigation, the results of which would allegedly have been the discovery of favorable character witnesses. Petitioner also argued that his counsel had not prepared properly for the sentencing hearing inasmuch as he failed to interview six readily available character witnesses for mitigation purposes. After evaluating the affidavits and evidence presented by petitioner, the Williams court concluded that what “petitioner’s present counsel is really objecting to is the trial strategy employed by trial counsel. We do not elect to second guess the trial strategy decisions of competent counsel.” Williams, 679 F.2d at 392. When a lawyer makes an informed choice between- alternatives, his tactical judgment will almost never be overturned on habeas corpus. Stanley v. Zant, 697 F.2d at 966.
At the state court hearing, counsel for Griffin testified, and the state and district courts found, that counsel was familiar with Griffin’s background as a result of discussions with Griffin and an investigation by an associate in counsel’s law office. Moreover, the courts concur that counsel made a strategic decision not to present mitigating character and background testimony. Instead, counsel chose to present mitigating evidence that Griffin’s potential release, under a life imprisonment sentence, would not impose a threat of danger to the community.
At the state court hearing, Griffin’s counsel testified:
My decision, in this case, after living with it for a period of time and after seeing the testimony that had been presented, that, once the jury had made the determination that Mr. Griffin was, in fact, guilty, that background of Mr. Griffin, whether it be bad or poor or rotten or how grievous a life he may have been brought up in, was not going to make a difference to [the jury]____
The only place I had to go with that was, and it was in the record, that Mr. Griffin was a good inmate, when he had been in the prison system, that he hadn’t given any problems and that he was not going to give any problems out there if they voted for the life sentence.
And that, if he got out of the prison system, which is what people up here are concerned about because they live here every day, if he ever got out of the system, he is not going to harm anybody else.
So, that was my decision and I think that, to have come up with a sympathy type argument, saying that: ‘Unfortunately, because he had such a poor life or bad life, that you don’t vote for the death penalty.’
Now, I felt that that would have just taken credibility away from any case that we had.
Later in the state evidentiary hearing, counsel further testified:
I felt at that point that, with the type of crime that was being tried ... that the jury, who had convicted Mr. Griffin on that, that they weren’t going to be impressed at all with his background unless there was some mental instability there. The main thing that they were concerned about is what has happened to this community and what was going to happen to them again when they go out again.
The record suggests that Griffin’s counsel explored and examined the possibility of using character and background evidence at the penalty stage, but made an informed choice between reasonable alternatives. It is well-settled law that counsel will not be regarded constitutionally deficient merely because of tactical decisions. Ford v. Strickland, 696 F.2d 804 (11th Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 201, 78 L.Ed.2d 176 (1983); United States v. Guerra, 628 F.2d 410 (5th Cir.1980), cert. denied, 450 U.S. 934, 101 S.Ct. 1398, 67 L.Ed.2d 369 (1981). Accordingly, Griffin has not carried his burden of proving ineffective assistance of counsel.
D. Appellate Stage
Griffin also contends that his appellate counsel was deficient in failing to raise the prosecutorial misconduct claim on direct appeal. Succinctly stated, Griffin argues that the prosecutor’s “improper racial remarks” should have been raised as prosecutorial misconduct on direct appeal in the state court.
Established legal precedent provides that a defendant has the right to effective assistance of counsel on appeal. Alvord v. Wainwright, 725 F.2d 1282, 1291 (11th Cir.1984). Nonetheless, counsel need not brief issues reasonably considered to be without merit. Alvord, 725 F.2d at 1291 (citing Mendiola v. Estelle, 635 F.2d 487, 491 (5th Cir.1981)); Hooks v. Roberts, 480 F.2d 1196, 1197-98 (5th Cir.1973), cert. denied, 414 U.S. 1163, 94 S.Ct. 926, 39 L.Ed.2d 116 (1974). We, like the state and district courts, conclude that the prosecutor’s reference to the race of the victims did not constitute objectionable prosecutorial misconduct. Finding Griffin’s argument to the contrary without merit, and recognizing that “counsel need not brief issues reasonably considered to be without merit,” we hold that Griffin has not carried his burden of proving ineffective assistance of counsel on appeal.
Moreover, in addition to our holding that counsel rendered reasonably effective assistance, we find that Griffin did not suffer prejudice entitling him to relief. Strickland v. Washington, — U.S. -, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Griffin has not shown that his counsel’s failure to meet with him more frequently, failure to attend depositions, failure to object to references made to the victims’ race, failure to present character evidence at the penalty phase, or failure to appeal the prosecutor’s reference to the victims’ race, constituted an actual or substantial disadvantage to Griffin. We hold that Griffin has not carried his burden of proving that he received ineffective assistance of counsel at any stage of this case. See United States v. Killian, 639 F.2d 206, 210 (5th Cir.), cert. denied, 451 U.S. 1021, 101 S.Ct. 3014, 69 L.Ed.2d 394 (1981).
II. The District Court’s Failure to Grant Griffin an Evidentiary Hearing
Griffin also contends that the district court erred in not granting him an evidentiary hearing on his claim of ineffective assistance of counsel. Although acknowledging that the issue of ineffective assistance of counsel was the subject of a state' habeas corpus proceeding, Griffin argues that the facts crucial to a fair determination of the material issues were not adequately developed at the state proceeding. Griffin further contends that he was wrongfully denied a full and fair evidentiary hearing in the state court proceeding. Moreover, Griffin argues that because “material facts were not adequately developed at the state court hearing,” and because this omission was not his fault, the district court erred in failing to hold an evidentiary hearing on his claim of ineffectiveness of counsel.
In Mason v. Balkcom, 531 F.2d 717, 722 (5th Cir.1976), this court’s predecessor observed that specific historical facts found by a state habeas corpus court (such as what an attorney did for his client), merit section 2254(d)’s presumption of correctness in a federal habeas corpus proceeding provided that those facts are adequately and fairly supported by the record.
In this case, the state habeas corpus court made the factual finding that Griffin’s counsel made a “tactical decision” to forego presentation of character and background evidence at the penalty stage of the trial. The court concluded that the decision did not constitute ineffective assistance of counsel. Second, the state habeas corpus court found that Griffin’s counsel’s failure to object to the prosecutor’s reference to the victims’ race did not constitute ineffective assistance of counsel inasmuch as the references were made entirely for identification purposes. Third, as for counsel’s performance during pretrial investigation, the state habeas corpus court found that the evidence admitted at the evidentiary hearing constituted plausible and reasonable grounds for counsel’s conscious deter-. mination not to take further depositions.
Nevertheless, Griffin contends that the district court erred in denying him an evidentiary hearing on his claim of ineffective assistance of counsel. Griffin argues that he made the requisite showing in the district court: (1) that material facts were not adequately developed at the state court hearing; and (2) that he did not receive a full and fair hearing at his state habeas corpus proceeding. In Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), the Supreme Court held that “a federal evidentiary hearing is required unless the state court trier of fact has after a full hearing reliably found the relevant facts.” Townsend, 372 U.S. at 312, 83 S.Ct. at 756. (emphasis added). The court articulated six circumstances in which a full plenary evidentiary hearing would be required even though the state court had made findings of fact. As its fifth enumerated circumstance, the Court stated that an evidentiary hearing must be held whenever “the material facts were not adequately developed at the state court hearing.” Townsend, 372 U.S. at 313, 83 S.Ct. at 757.
Accordingly, a federal habeas corpus petitioner, such as Griffin, must make a showing of two elements in order to receive an evidentiary hearing on the fifth circumstance articulated in Townsend: First, petitioner must establish that a fact pertaining to his federal constitutional claim was not adequately developed at the state court hearing and that the fact was “material” or “crucial to a fair, rounded development of the material facts”; second, petitioner must demonstrate that failure to develop that material fact at the state court proceeding was not attributable to petitioner’s inexcusable neglect or deliberate bypass. Thomas v. Zant, 697 F.2d 977 (11th Cir.1983).
Griffin contends that he was denied a full and fair opportunity to present evidence in the form of the Florida State Prison’s record of prison visitors. He adds that the aforementioned record constitutes a document material to his constitutional claim of ineffective assistance of counsel. Griffin argues that the prison’s record corroborates his testimony that his trial counsel was ineffective because he met with Griffin only once prior to trial.
Even assuming, without deciding, that the Florida State Prison record contains facts that are “material” or “crucial to a fair, rounded development of the material facts,” Griffin has not established that his failure to present this record, at the state proceeding, was not due to his own inexcusable neglect or deliberate bypass.
Griffin states that it took two and one-half months for the Florida State Prison to respond to his request to produce its record of visitors. The state evidentiary hearing terminated prior to Griffin’s receipt of the records. Thus, Griffin argues that his failure to develop additional evidence as to his counsel’s ineffectiveness was not due to any decision on his part, but rather to the lack of time allowed by the court.
Griffin, however, has not shown that he utilized any means more stringent than a mere “request” to obtain the record(s) in question. He does not even suggest that he subpoenaed these “material” and “crucial” documents or that he sought judicial intervention to obtain them. Although faced with imminent execution, Griffin did not petition the court for aid in obtaining records that he now claims were “material” and “crucial” to a fair development of the facts of his claim. Accordingly, Griffin has not shown, and we, therefore, are not convinced, that any failure to develop alleged “material” facts at the state proceeding is not attributable to Griffin’s own inexcusable neglect or deliberate bypass. We hold that the district court properly concluded that Griffin was not entitled to an evidentiary hearing on his claim of ineffective assistance of counsel based on the fifth circumstance of Townsend.
Second, Griffin contends that he is entitled to an evidentiary hearing under the sixth circumstance delineated by the Townsend Court. Griffin alleges that he was wrongfully denied a full and fair evidentiary hearing in state court, and thus, the district court erred in not granting an evidentiary hearing on his ineffective assistance of counsel claim. The Townsend Court held that “a federal evidentiary hearing is required unless the state court trier of fact has after a full hearing reliably found the relevant facts.” Townsend, 372 U.S. at 312, 83 S.Ct. at 756.
If a district court concludes that “the habeas applicant was afforded a full and fair hearing by the state court resulting in reliable findings, he may, and ordinarily should, accept the facts as found in the hearing.” Townsend, 372 U.S. at 318, 83 S.Ct. at 760. After a review of the entire record of the state habeas corpus proceeding, the district court found that Griffin received a full, fair, and adequate hearing before the trial judge. Because Griffin has not shown that any of the factors enumerated in Townsend or delineated in 28 U.S. C.A. § 2254(d) exist, we hold that the district court did not err or abuse its discretion in granting a presumption of correctness to the facts found in the state evidentiary hearing. Accordingly, we reject Griffin’s contention to the contrary.
III. Evidentiary Hearing — Other Grounds
Griffin contends that the state trial court wrongfully deprived him of a hearing with respect to his unconstitutional impanelment of the jury claim. He further argues that this claim is not barred by procedural default under Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). We disagree.
Thorough review of the record reveals that Griffin failed to raise, on direct appeal, his unconstitutional impanelment of the jury claim. The district court correctly concluded that this claim was barred under Wainwright v. Sykes because Griffin failed to raise it on direct appeal as Florida procedure requires. See Sullivan v. Wainwright, 695 F.2d 1306, 1310 (11th Cir.), cert. denied, — U.S. -, 104 S.Ct. 290, 78 L.Ed.2d 266 (1983).
Notwithstanding this independent and adequate state procedural bar, we may review the merits of Griffin’s claim if he can show both cause excusing and actual prejudice resulting from the waiver of the aforementioned claim. Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982); Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); Francis v. Henderson, 425 U.S. 536, 542, 96 S.Ct. 1708, —, 48 L.Ed.2d 149 (1976) (by implication). The evidence proffered by Griffin is wholly insufficient to establish cause excusing and actual prejudice resulting from Griffin’s failure to raise the issue of unconstitutional impanelment of the jury on direct appeal. Accordingly, we affirm the district court’s order denying Griffin’s motion for an evidentiary hearing on this issue.
IV. Discriminatory Imposition of the Death Penalty on the Basis of the Race of the Victim
Griffin argues that the death penalty in Florida is discriminatorily imposed based on the race
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_r_state
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "state governments, their agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Tyrone BULLOCK, Appellant v. Martin SUOMELA.
No. 82-3343.
United States Court of Appeals, Third Circuit.
Submitted Under Third Circuit Rule 12(6) March 25, 1983.
Decided June 21, 1983.
Tyrone Bullock, pro se.
LeRoy S. Zimmerman, Atty. Gen., Gregory R. Neuhauser, Francis R. Filipi, Deputy Attys. Gen., Harrisburg, Pa., for appellee.
Before GIBBONS, GARTH and MARIS, Circuit Judges.
OPINION OF THE COURT
MARIS, Circuit Judge.
The plaintiff, an inmate of the Pennsylvania Correctional Institution at Hunting-don, filed a civil rights complaint pro se against the defendant, a member of the staff of that institution. He also requested leave to proceed in forma pauperis without prepayment of fees and costs. In support of that request he filed an affidavit which did not contain all of the information required by the established procedure of the district court. Further, he marked “Refused” on a certificate attached to the affidavit which was to have been executed by prison officials. And, finally, he indicated that he did not have any money in his prison account.
The magistrate to whom the case was referred accordingly issued an order requiring prison officials to submit further financial information. Thereafter, an affidavit was filed which indicated that on March 16, 1982, the date on which the plaintiff executed his affidavit stating that he had no funds in his prison account, that account actually had a balance of $4.76, that his average monthly wages were $17.48 and that during the 6-month period preceding suit he had receipts of $144.22. The magistrate thereupon ordered the plaintiff to pay a partial filing fee of $4.00 or submit an explanation demonstrating that he lacked access to sufficient funds to make the partial payment. Plaintiff responded with an affidavit indicating that he should be excused from paying the filing fee on the basis that his only source of income was from prison wages which he needed to purchase essential cosmetics, legal paper, photocopies and postage stamps and that the then present balance in his account was zero. The magistrate considered nonetheless that it would not be burdensome on the plaintiff to pay the modest partial filing fee which he had ordered. The plaintiff failed to do so, however, and on the report and recommendation of the magistrate and after considering exceptions thereto filed by plaintiff, the district court dismissed the complaint with prejudice. The present appeal by the plaintiff followed.
The magistrate and the district court acted pursuant to a procedure followed in that court under which a plaintiff seeking to proceed pro se without prepayment of fees and costs who is without funds to prepay them in full is authorized to proceed in forma pauperis upon payment of such lesser sum in part payment as his financial situation may fairly permit. A number of courts of appeals and district courts have approved this procedure as within the authority conferred by 28 U.S.C. § 1915(a); Evans v. Croom, 650 F.2d 521 (4th Cir.1981), cert. denied, 454 U.S. 1153, 102 S.Ct. 1023, 71 L.Ed.2d 309 (1982); Zaun v. Dobbin, 628 F.2d 990 (7th Cir.1980); In re Stump, 449 F.2d 1297 (1st Cir.1971); Braden v. Estelle, 428 F.Supp. 595 (S.D.Tex. 1977); and so do we. We, accordingly, reach the question which the plaintiff presents on this appeal, namely, that the district court was guilty of an abuse of discretion in requiring him to pay $4.00 of the filing fee as a prerequisite to being granted status in forma pauperis and, therefore, erred in dismissing his complaint because of his failure to do so.
As this and other courts have pointed out, the procedure followed in the district court may not be so employed as to leave a pro se litigant absolutely penniless. As this court said in Souder v. McGuire, 516 F.2d 820, 824 (3rd Cir.1975), “we do not think that prisoners must totally deprive themselves of those small amenities of life which they are permitted to acquire in a prison or a mental hospital beyond the food, clothing, and lodging already furnished by the state.... These need not be surrendered in order for a prisoner or a mental patient to litigate in forma pauperis in the district court.” What may be required by the district court in the exercise of its discretion is a payment which is fair in the light of the actual financial situation of the particular pro se litigant. See, in this connection, Judge Bue’s excellent discussion of this subject in Braden v. Estelle, 428 F.Supp. 595 (S.D.Tex.1977). In the present case, the order of the court, if carried out, would have left the plaintiff with a balance of only 76 cents. True, he had the possibility of prison earnings, but these were modest indeed and problematical. We conclude that the order of the court requiring the plaintiff to pay $4.00 of his $4.76 cash assets was an abuse of discretion and that in for-ma pauperis status should have been granted without any required prepayment of fees and costs.
The order of the district court will be reversed and the cause, remanded with directions to reinstate the complaint and to grant plaintiff’s request for leave to proceed without prepayment of fees and costs.
Question: What is the total number of respondents in the case that fall into the category "state governments, their agencies, and officials"? Answer with a number.
Answer:
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sc_partywinning
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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 petitioning party (i.e., the plaintiff or the appellant) emerged victorious. The victory the Supreme Court provided the petitioning party may not have been total and complete (e.g., by vacating and remanding the matter rather than an unequivocal reversal), but the disposition is nonetheless a favorable one. Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case.
NORTHWEST WHOLESALE STATIONERS, INC. v. PACIFIC STATIONERY & PRINTING CO.
No. 83-1368.
Argued February 19, 1985
Decided June 11, 1985
Brennan, J., delivered the opinion of the Court, in which all other Members joined except Marshall and Powell, JJ., who took no part in the decision of the case.
David J. Sweeney argued the cause for petitioner. With him on the briefs were Douglas R. Grim and Mark B. Weintraub.
Catherine G. O'Sullivan argued the cause for the United States as amicus curiae urging reversal. With her on the brief were Solicitor General Lee, Assistant Attorney General McGrath, Deputy Solicitor General Wallace, Deputy Assistant Attorney General Rule, and Edward T. Hand.
Joseph P. Bauer argued the cause for respondent. With him on the brief was Robert R. Carney
Ira S. Sacks filed a brief for Indian Head Inc. as amicus curiae urging affirmance.
Justice Brennan
delivered the opinion of the Court.
This case requires that we decide whether a per se violation of § 1 of the Sherman Act, 15 U. S. C. § 1, occurs when a cooperative buying agency comprising various retailers expels a member without providing any procedural means for challenging the expulsion. The case also raises broader questions as to when per se antitrust analysis is appropriately applied to joint activity that is susceptible of being characterized as a concerted refusal to deal.
I
Because the District Court ruled on cross-motions for summary judgment after only limited discovery, this case comes to us on a sparse record. Certain background facts are undisputed. Petitioner Northwest Wholesale Stationers is a purchasing cooperative made up of approximately 100 office supply retailers in the Pacific Northwest States. The cooperative acts as the primary wholesaler for the retailers. Retailers that are not members of the cooperative can purchase wholesale supplies from Northwest at the same price as members. At the end of each year, however, Northwest distributes its profits to members in the form of a percentage rebate on purchases. Members therefore effectively purchase supplies at a price significantly lower than do nonmembers. Northwest also provides certain warehousing facilities. The cooperative arrangement thus permits the participating retailers to achieve economies of scale in purchasing and warehousing that would otherwise be unavailable to them. In fiscal 1978 Northwest had $5.8 million in sales. App. 73.
Respondent Pacific Stationery & Printing Co. sells office supplies at both the retail and wholesale levels. Its total sales in fiscal 1978 were approximately $7.6 million; the record does not indicate what percentage of revenue is attributable to retail and what percentage is attributable to wholesale. Pacific became a member of Northwest in 1958. In 1974 Northwest amended its bylaws to prohibit members from engaging in both retail and wholesale operations. See id,., at 50, 59. A grandfather clause preserved Pacific’s membership rights. See id., at 59. In 1977 ownership of a controlling share of the stock of Pacific changed hands, id., at 70, and the new owners did not officially bring this change to the attention of the directors of Northwest. This failure to notify apparently violated another of Northwest’s bylaws. See id., at 59 (Bylaws, Art. VIII, §5).
In 1978 the membership of Northwest voted to expel Pacific. Most factual matters relevant to the expulsion are in dispute. No explanation for the expulsion was advanced at the time, and Pacific was given neither notice, a hearing, nor any other opportunity to challenge the decision. Pacific argues that the expulsion resulted from Pacific’s decision to maintain a wholesale operation. See Brief in Opposition 11. Northwest contends that the expulsion resulted from Pacific’s failure to notify the cooperative members of the change in stock ownership. See Pet. for Cert. 8. The minutes of the meeting of Northwest’s directors do not definitively indicate the motive for the expulsion. App. 75-77. It is undisputed that Pacific received approximately $10,000 in rebates from Northwest in 1978, Pacific’s last year of membership. Beyond a possible inference of loss from this fact, however, the record is devoid of allegations indicating the nature and extent of competitive injury the expulsion caused Pacific to suffer.
Pacific brought suit in 1980 in the United States District Court for the District of Oregon alleging a violation of § 1 of the Sherman Act. The gravamen of the action was that Northwest’s expulsion of Pacific from the cooperative without procedural protections was a group boycott that limited Pacific’s ability to compete and should be considered per se violative of § 1. See Complaint ¶ 8, App. 4-5. On cross-motions for summary judgment the District Court rejected application of the per se rule and held instead that rule-of-reason analysis should govern the case. Finding no anti-competitive effect on the basis of the record as presented, the court granted summary judgment for Northwest. See App. to Pet. for Cert. 22-24.
The Court of Appeals for the Ninth Circuit reversed, holding “that the uncontroverted facts of this case support a finding of per se liability.” 715 F. 2d 1393, 1395 (1983). The court reasoned that the cooperative’s expulsion of Pacific was an anticompetitive concerted refusal to deal with Pacific on equal footing, which would be a per se violation of § 1 in the absence of any specific legislative mandate for self-regulation sanctioning the expulsion. The court noted that §4 of the Robinson-Patman Act, 15 U. S. C. §13b, specifically approves the price discrimination occasioned by such expulsion and concluded that §4 therefore provided a mandate for self-regulation. Such a legislative mandate, according to the court, would ordinarily result in evaluation of the challenged practice under the rule of reason. But, drawing on Silver v. New York Stock Exchange, 373 U. S. 341, 348-349 (1963), the court decided that rule-of-reason analysis was appropriate only on the condition that the cooperative had provided procedural safeguards sufficient to prevent arbitrary expulsion and to furnish a basis for judicial review. Because Northwest had not provided any procedural safeguards, the court held that the expulsion of Pacific was not shielded by Robinson-Patman immunity and therefore constituted a per se group boycott in violation of § 1 of the Sherman Act. 715 F. 2d, at 1395-1398.
We granted certiorari to examine this application of Silver v. New York Stock Exchange, supra, in an area of antitrust law that has not been free of confusion. 469 U. S. 814 (1984). We reverse.
II
The decision of the cooperative members to expel Pacific was certainly a restraint of trade in the sense that every commercial agreement restrains trade. Chicago Board of Trade v. United States, 246 U. S. 231, 238 (1918). Whether this action violates § 1 of the Sherman Act depends on whether it is adjudged an unreasonable restraint. Ibid. Rule-of-reason analysis guides the inquiry, see Standard Oil Co. v. United States, 221 U. S. 1 (1911), unless the challenged action falls into the category of “agreements or practices which because of their pernicious effect on competition and lack of any redeeming virtue are conclusively presumed to be unreasonable and therefore illegal without elaborate inquiry as to the precise harm they have caused or the business excuse for their use.” Northern Pacific R. Co. v. United States, 356 U. S. 1, 5 (1958).
This per se approach permits categorical judgments with respect to certain business practices that have proved to be predominantly anticompetitive. Courts can thereby avoid the “significant costs” in “business certainty and litigation efficiency” that a full-fledged rule-of-reason inquiry entails. Arizona v. Maricopa County Medical Society, 457 U. S. 332, 343-344 (1982). See also United States v. Topco Associates, Inc., 405 U. S. 596, 609-610 (1972). The decision to apply the per se rule turns on “whether the practice facially appears to be one that would always or almost always tend to restrict competition and decrease output... or instead one designed to ‘increase economic efficiency and render markets more, rather than less, competitive.’” Broadcast Music, Inc. v. Columbia Broadcasting System, Inc., 441 U. S. 1, 19-20 (1979) (citations omitted). See also National Collegiate Athletic Assn. v. Board of Regents of University of Oklahoma, 468 U. S. 85, 103-104 (1984) (“Per se rules are invoked when surrounding circumstances make the likelihood of anti-competitive conduct so great as to render unjustified further examination of the challenged conduct”).
This Court has long held that certain concerted refusals to deal or group boycotts are so likely to restrict competition without any offsetting efficiency gains that they should be condemned as per se violations of § 1 of the Sherman Act. See Klor’s, Inc. v. Broadway-Hale Stores, Inc., 359 U. S. 207 (1959); United States v. General Motors Corp., 384 U. S. 127 (1966); Radiant Burners, Inc. v. Peoples Gas Light & Coke Co., 364 U. S. 656 (1961); Associated Press v. United States, 326 U. S. 1 (1945); Fashion Originators’ Guild of America, Inc. v. FTC, 312 U. S. 457 (1941); Eastern States Retail Lumber Dealers’ Assn. v. United States, 234 U. S. 600 (1914). The question presented in this case is whether Northwest’s decision to expel Pacific should fall within this category of activity that is conclusively presumed to be anti-competitive. The Court of Appeals held that the exclusion of Pacific from the cooperative should conclusively be presumed unreasonable on the ground that Northwest provided no procedural protections to Pacific. Even if the lack of procedural protections does not justify a conclusive presumption of predominantly anticompetitive effect, the mere act of expulsion of a competitor from a wholesale cooperative might be argued to be sufficiently likely to have such effects under the present circumstances and therefore to justify application of the per se rule. These possibilities will be analyzed separately.
A
The Court of Appeals drew from Silver v. New York Stock Exchange, 373 U. S. 341 (1963), a broad rule that the conduct of a cooperative venture — including a concerted refusal to deal — undertaken pursuant to a legislative mandate for self-regulation is immune from per se scrutiny and subject to rule-of-reason analysis only if adequate procedural safeguards accompany self-regulation. We disagree and conclude that the approach of the Court in Silver has no proper application to the present controversy.
The Court in Silver framed the issue as follows:
“[WJhether the New York Stock Exchange is to be held liable to a nonmember broker-dealer under the antitrust laws or regarded as impliedly immune therefrom when, pursuant to rules the Exchange has adopted under the Securities Exchange Act of 1934, it orders a number of its members to remove private direct telephone wire connections previously in operation between their offices and those of the nonmember, without giving the nonmember notice, assigning him any reason for the action, or affording him an opportunity to be heard.” Id., at 343.
Because the New York Stock Exchange occupied such a dominant position in the securities trading markets that the boycott would devastate the nonmember, the Court concluded that the refusal to deal with the nonmember would amount to a per se violation of § 1 unless the Securities Exchange Act provided an immunity. Id., at 347-348. The question for the Court thus was whether effectuation of the policies of the Securities Exchange Act required partial repeal of the Sherman Act insofar as it proscribed this aspect of exchange self-regulation.
Finding exchange self-regulation — including the power to expel members and limit dealings with nonmembers — to be an essential policy of the Securities Exchange Act, the Court held that the Sherman Act should be construed as having been partially repealed to permit the type of exchange activity at issue. But the interpretive maxim disfavoring repeals by implication led the Court to narrow permissible self-policing to situations in which adequate procedural safeguards had been provided.
“Congress . . . cannot be thought to have sanctioned and protected self-regulative activity when carried out in a fundamentally unfair manner. The point is not that the antitrust laws impose the requirement of notice and a hearing here, but rather that, in acting without according petitioners these safeguards in response to their request, the Exchange has plainly exceeded the scope of its authority under the Securities Exchange Act to engage in self-regulation.” Id., at 364 (footnote omitted).
Thus it was the specific need to accommodate the important national policy of promoting effective exchange self-regulation, tempered by the principle that the Sherman Act should be narrowed only to the extent necessary to effectuate that policy, that dictated the result in Silver.
Section 4 of the Robinson-Patman Act is not comparable to the self-policing provisions of the Securities Exchange Act. That section is no more than a narrow immunity from the price discrimination prohibitions of the Robinson-Patman Act itself. The Conference Report makes clear that the exception was intended solely to “safeguard producer and consumer cooperatives against any charge of violation of the act based on their distribution of earnings or surplus among their members on a patronage basis.” H. R. Conf. Rep. No. 2951, 74th Cong., 2d Sess., 9 (1936) (emphasis added). This section has never been construed as granting cooperatives a blanket exception from the Robinson-Patman Act and cannot plausibly be construed as an exemption to or repeal of any portion of the Sherman Act. “There is nothing in the last section of the bill [containing §“4] that distinguishes cooperatives, either favorably or unfavorably, from other agencies in the streams of production and trade, so far as concerns their dealings with others.” 80 Cong. Rec. 9419 (1936) (remarks of Rep. Utterback).
In light of this circumscribed congressional intent, there can be no argument that §4 of the Robinson-Patman Act should be viewed as a broad mandate for industry self-regulation. No need exists, therefore, to narrow the Sherman Act in order to accommodate any competing congressional policy requiring discretionary self-policing. Indeed, Congress would appear to have taken some care to make clear that no constriction of the Sherman Act was intended. In any event, the absence of procedural safeguards can in no sense determine the antitrust analysis. If the challenged concerted activity of Northwest’s members would amount to a per se violation of § 1 of the Sherman Act, no amount of procedural protection would save it. If the challenged action would not amount to a violation of § 1, no lack of procedural protections would convert it into a per se violation because the antitrust laws do not themselves impose on joint ventures a requirement of process.
B
This case therefore turns not on the lack of procedural protections but on whether the decision to expel Pacific is properly viewed as a group boycott or concerted refusal to deal mandating per se invalidation. “Group boycotts” are often listed among the classes of economic activity that merit per se invalidation under § 1. See Klor’s, Inc. v. Broadway-Hale Stores, Inc., 359 U. S., at 212; Northern Pacific R. Co. v. United States, 356 U. S., at 5; Silver v. New York Stock Exchange, 373 U. S., at 348; White Motor Co. v. United States, 372 U. S. 253, 259-260 (1963). Exactly what types of activity fall within the forbidden category is, however, far from certain. “[T]here is more confusion about the scope and operation of the per se rule against group boycotts than in reference to any other aspect of the per se doctrine.” L. Sullivan, Law of Antitrust 229-230 (1977). Some care is therefore necessary in defining the category of concerted refusals to deal that mandate per se condemnation. See St. Paul Fire & Marine Ins. Co. v. Barry, 438 U. S. 531, 543 (1978) (concerted refusals to deal “are not a unitary phenomenon”). Cf. Broadcast Music, Inc. v. Columbia Broadcasting System, Inc., 441 U. S., at 9.
Cases to which this Court has applied the per se approach have generally involved joint efforts by a firm or firms to disadvantage competitors by “either directly denying or persuading or coercing suppliers or customers to deny relationships the competitors need in the competitive struggle.” Sullivan, supra, at 261-262. See, e. g., Silver, supra (denial of necessary access to exchange members); Radiant Burners, Inc. v. Peoples Gas Light & Coke Co., 364 U. S. 656 (1961) (denial of necessary certification of product); Associated Press v. United States, 326 U. S. 1 (1945) (denial of important sources of news); Klor’s, Inc., supra (denial of wholesale supplies). In these cases, the boycott often cut off access to a supply, facility, or market necessary to enable the boycotted firm to compete, Silver, supra; Radiant Burners, Inc., supra, and frequently the boycotting firms possessed a dominant position in the relevant market. E. g., Silver, supra; Associated Press, supra; Fashion Originators’ Guild of America, Inc. v. FTC, 312 U. S. 457 (1941). See generally Brodley, Joint Ventures and Antitrust Policy, 95 Harv. L. Rev. 1523, 1533, 1563-1565 (1982). In addition, the practices were generally not justified by plausible arguments that they were intended to enhance overall efficiency and make markets more competitive. Under such circumstances the likelihood of anticompetitive effects is clear and the possibility of countervailing procompetitive effects is remote.
Although a concerted refusal to deal need not necessarily possess all of these traits to merit per se treatment, not every cooperative activity involving a restraint or exclusion will share with the per se forbidden boycotts the likelihood of predominantly anticompetitive consequences. For example, we recognized last Term in National Collegiate Athletic Assn. v. Board of Regents of University of Oklahoma that per se treatment of the NCAA’s restrictions on the marketing of televised college football was inappropriate — despite the obvious restraint on output — because the “case involves an industry in which horizontal restraints on competition are essential if the product is to be available at all.” 468 U. S., at 101.
Wholesale purchasing cooperatives such as Northwest are not a form of concerted activity characteristically likely to result in predominantly anticompetitive effects. Rather, such cooperative arrangements would seem to be “designed to increase economic efficiency and render markets more, rather than less, competitive.” Broadcast Music, Inc. v. Columbia Broadcasting System, Inc., supra, at 20. The arrangement permits the participating retailers to achieve economies of scale in both the purchase and warehousing of wholesale supplies, and also ensures ready access to a stock of goods that might otherwise be unavailable on short notice. The cost savings and order-filling guarantees enable smaller retailers to reduce prices and maintain their retail stock so as to compete more effectively with larger retailers.
Pacific, of course, does not object to the existence of the cooperative arrangement, but rather raises an antitrust challenge to Northwest’s decision to bar Pacific from continued membership. It is therefore the action of expulsion that must be evaluated to determine whether per se treatment is appropriate. The act of expulsion from a wholesale cooperative does not necessarily imply anticompetitive animus and thereby raise a probability of anticompetitive effect. See Broadcast Music, Inc. v. Columbia Broadcasting System, Inc., supra, at 9. Wholesale purchasing cooperatives must establish and enforce reasonable rules in order to function effectively. Disclosure rules, such as the one on which Northwest relies, may well provide the cooperative with a needed means for monitoring the creditworthiness of its members. Nor would the expulsion characteristically be likely to result in predominantly anticompetitive effects, at least in the type of situation this case presents. Unless the cooperative possesses market power or exclusive access to an element essential to effective competition, the conclusion that expulsion is virtually always likely to have an anticompetitive effect is not warranted. See L. Sullivan, Law of Antitrust 292-293 (1977); Brodley, 95 Harv. L. Rev., at 1563-1565. Cf. Jefferson Parish Hospital Dist. v. Hyde, 466 U. S. 2, 12-15 (1984) (absent indication of market power, tying arrangement does not warrant per se invalidation). See generally National Collegiate Athletic Assn. v. Board of Regents of University of Oklahoma, 468 U. S., at 104, n. 26 (“Per se rules may require considerable inquiry into market conditions before the evidence justifies a presumption of anticompetitive conduct”). Absent such a showing with respect to a cooperative buying arrangement, courts should apply a rule-of-reason analysis. At no time has Pacific made a threshold showing that these structural characteristics are present in this case. See Complaint, App. 2; Motion for Partial Summary Judgment, App. 9.
The District Court appears to have followed the correct path of analysis — recognizing that not all concerted refusals to deal should be accorded per se treatment and deciding this one should not. The foregoing discussion suggests, however, that a satisfactory threshold determination whether anticompetitive effects would be likely might require a more detailed factual picture of market structure than the District Court had before it. Nonetheless, in our judgment the District Court’s rejection of per se analysis in this case was correct. A plaintiff seeking application of the per se rule must present a threshold case that the challenged activity falls into a category likely to have predominantly anticompetitive effects. The mere allegation of a concerted refusal to deal does not suffice because not all concerted refusals to deal are predominantly anticompetitive. When the plaintiff challenges expulsion from a joint buying cooperative, some showing must be made that the cooperative possesses market power or unique access to a business element necessary for effective competition. Focusing on the argument that the lack of procedural safeguards required per se liability, Pacific did not allege any such facts. Because the Court of Appeals applied an erroneous per se analysis in this case, the court never evaluated the District Court’s rule-of-reason analysis rejecting Pacific’s claim. A remand is therefore appropriate for the limited purpose of permitting appellate review of that determination.
Ill
“The per se rule is a valid and useful tool of antitrust policy and enforcement.” Broadcast Music, Inc. v. Columbia Broadcasting System, Inc., 441 U. S., at 8. It does not denigrate the per se approach to suggest care in application. In this case, the Court of Appeals failed to exercise the requisite care and applied per se analysis inappropriately. The judgment of the Court of Appeals is therefore reversed, and the ease is remanded for further proceedings consistent with this opinion.
It is so ordered.
Justice Marshall and Justice Powell took no part in the decision of this case.
That section reads in relevant part:
“Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal.”
Although this patronage rebate policy is a form of price discrimination, §4 of the Robinson-Patman Act specifically sanctions such activity by cooperatives:
“Nothing in this Act shall prevent a cooperative association from returning to its members, producers, or consumers the whole, or any part of, the net earnings or surplus resulting from its trading operations, in proportion to their purchases or sales from, to, or through the association.” 49 Stat. 1528, 15 U. S. C. § 13b.
A relevant state-law provision provides analogous protection. Ore. Rev. Stat. §646.030 (1983).
See L. Sullivan, Law of Antitrust 229-230 (1977); Bauer, Per Se Illegality of Concerted Refusals to Deal: A Rule Ripe for Reexamination, 79 Colum. L. Rev. 685 (1979).
Northwest raises no challenge before this Court to the conclusion of the Court of Appeals that the cooperative’s decision to expel Pacific was a “combination or conspiracy” affecting interstate commerce within the meaning of § 1 of the Sherman Act.
See, e. g., American Motor Specialties Co. v. FTC, 278 F. 2d 225, 229 (CA2), cert. denied, 364 U. S. 884 (1960).
Because Pacific has not been wholly excluded from access to Northwest’s wholesale operations, there is perhaps some question whether the challenged activity is properly characterized as a concerted refusal to deal. To be precise, Northwest’s activity is a concerted refusal to deal with Pacific on substantially equal terms. Such activity might justify per se invalidation if it placed a competing firm at a severe competitive disadvantage. See generally Brodley, Joint Ventures and Antitrust Policy, 95 Harv. L. Rev. 1521, 1532 (1982) (“Even if the joint venture does deal with outside firms, it may place them at a severe competitive disadvantage by treating them less favorably than it treats the [participants in the joint venture]”).
Pacific argues, however, that this justification for expulsion was a pretext because the members of Northwest were fully aware of the change in ownership despite lack of formal notice. According to Pacific, Northwest’s motive in the expulsion was to place Pacific at a competitive disadvantage to retaliate for Pacific’s decision to engage in an independent wholesale operation. Such a motive might be more troubling. If Northwest’s action were not substantially related to the efficiency-enhancing or procompetitive purposes that otherwise justify the cooperative’s practices, an inference of anticompetitive animus might be appropriate. But such an argument is appropriately evaluated under the rule-of-reason analysis.
Given the state of this record it is difficult to understand how the Court of Appeals could have concluded that Pacific “loses the ability to use Northwest’s superior warehousing and expedited order-filling facilities, as well as any competitive advantages that may flow simply from being known in the industry as a member of an established cooperative.” 715 F. 2d 1393, 1395 (1983). The District Court had specifically found no anti-competitive effect.
The District Court stated:
“I think that in a case of this nature, in order to move an antitrust violation, it is necessary to show some restraint of competition, and I don’t believe that is shown here. Even if it is a group boycott, I still believe under [Joseph E. Seagram & Sons, Inc. v. Hawaiian Oke & Liquors, Ltd., 416 F. 2d 71 (CA9 1969), and Ron Tonkin Gran Turismo, Inc. v. Fiat Distributors, Inc., 637 F. 2d 1376 (CA9 1981)], that the Rule of Reason operates. And I think if you apply the Rule of Reason to the facts that are submitted by the parties here that are not disputed in this case, you come to the conclusion that there is [sic] simply been no showing by the Plaintiff in this case of a restraint of competition as distinguished from possible damage to the Plaintiff by being expelled from the association.” App. to Pet. for Cert. 23-24.
Question: Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case. Did the petitioning win the case?
A. Yes
B. No
Answer:
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songer_applfrom
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L
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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).
ROBINSON v. COMMISSIONER OF INTERNAL REVENUE.
No. 7386.
Circuit Court of Appeals, Ninth Circuit.
Nov. 19, 1934.
Robert T. Jacob, of Portland, Or., for petitioner.
Frank J. Wideman, Asst. Atty. Gen., and Sewall Key, M. II. Eustace, and Carlton Fox, Sp. Assts. to Atty. Gen., for respondent.
Before WILBUR, SAWTELLE, and GARRE CHT, Circuit Judges.
WILBUR, Circuit Judge.
Petitioner seeks a review of the decision of the Board of Tax Appeals approving the determination by the Commissioner of Internal Revenue of a deficiency of $3,597.28 in the income tax of petitioner for the year 1927.
Petitioner, a resident of Portland, Or., acquired in 1917 all of the capital stock of the Molalla Electric Company at a cost of $45,000 and sold the same to the Portland Electric Power Company in February, 1927. The selling price of the stock was $87,500, $17,500 of which was paid in cash. The deferred payments were evidenced by sixteen notes totaling $70,000, four of which, totaling $17,500, became duo on March 1st of each of the years 1928, 1929, 3930, and 1931. During the year 1927, petitioner purchased some real estate and gave the eight notes due March 1, 1928, and March 1, 1929, totaling $35,000, as part payment therefor and petitioner guaranteed payment of the same.
Petitioner claims that he is entitled to return the income from the sale of his stock in the Molalla Company upon the installment basis under section 212 (d) of the Revenue Act of 1926 (26 USCA § 953 (d) and assigns as error the holding of the Board of Tax Appeals that “the petitioner, having in said taxable period received in cash and property as initial payment more than one fourth the purchase price at which he sold his Molalla Electric Co. stock, is not entitled, in our opinion and we so determine, to have his tax on the profit computed on the installment basis, as contended by him.”
This holding of the Board of Tax Appeals is based upon the proposition that by giving the notes for $35,000 as part payment for the real estate during the same taxable year, the petitioner to that extent received an interest therein as part of the initial payment for his stock in the Molalla Company within the meaning of section 212 (d) of the Revenue Act of 1926, supra.
The question here involved has recently been decided by the Circuit Court of Appeals for the Second'Circuit in a similar case [Du-ram Building Corporation v. Commissioner of Internal Rev., 66 F.(2d) 253, 254] contrary to the conclusion reached by the Board of Tax Appeals. The Circuit Court of Appeals in Duram Building Corp. v. Commissioner, supra, stated:
“Therefore, as we interpret section 212 (d), the privilege of reporting upon the installment basis depends upon the transactions between the vendor and purchaser of the land during the taxable period; it is not made conditional upon what disposition the vendor may make of the purchaser’s evidences of indebtedness by transactions with third parties during the taxable period in which the land was sold. Such transactions are separate and independent and will themselves he the basis for a return of profit or loss.”
Respondent now concedes that petitioner is entitled under the provisions of section 212 (d), supra, to return the ineome from the sale of his stock on the installment basis as held in Duram Building Corp. v. Commissioner, supra. However, respondent contends that the transaction in 1927 whereby petitioner transferred eight of these notes maturing March 1, 1928, and. 1929, aggregating $35,-000, at their face value, as part payment for real estate, resulted in a gain or profit to petitioner and should be included in petitioner’s income tax return for 1927. This, respondent claims, is such a transaction as is referred to in the Duram Case as “separate and independent and will themselves be the basis for a return of profit or loss” and results in this case in a realization of the gain from the transaction to the extent that such gain was included in the installment notes transferred. This also is conceded by the petitioner as a correct application of the law where the exchange of the installment notes is made without recourse. But he contends that there was no gain or loss realized or determinable from this second transaction during 1927, the taxable year in question, because the petitioner guaranteed the payment of the notes so transferred and thus he did not realize upon these notes nor divest himself of liability for their payment.
In Shubin v. Comm’r of Int. Rev., 67 F. (2d) 199, the Circuit Court of Appeals for the Third Circuit held that the fact that the seller, who received the proceeds of a second mortgage put upon the property by the purchaser, remains secondarily liable on the mortgage indebtedness is not sufficient to prevent the proceeds received from being considered as a payment at the time of the.transaction. We agree with the conclusion reached in that ease and therefore hold that even though petitioner remained liable as guarantor on the notes transferred, the gain included in the installment notes (transferred) for the real estate at their face value should have been included in petitioner’s income tax return for the year 1927.
Petitioner also claims error in the amount fixed by the Commissioner and affirmed by the Board of Tax Appeals as the cost to him of the stock in the Molalla Electric Company. The amount fixed by the Commissioner and affirmed by the Board of Tax Appeals was the original purchase price of $45,000. Petitioner was president and general manager of the Molalla Company from 1917 to '1927 at a salary of $250 per month until 1921 when it was increased to $300 per month. During this period petitioner was entitled to $33,600 in salary and claims to have drawn only $24,297.20, leaving a balance of $9,302.80 which he claims was left with the company and invested in its business and therefore should be added to the cost of the Molalla Company stock to him. During the year 1923 petitioner sold certain real estate for $1,400, which amount he claims was turned over to and used by the Molalla Company as were the proceeds of certain life insurance owned by petitioner in the amount of $1,598.22. Petitioner contends that since these last two amounts were turned over to and used by the Molalla' Company and not returned to him in the form of dividends or otherwise, these amounts should also be added as part of the cost to him of the Molalla Company stock. The record does not contain any of the evidence on these matters and we cannot in view of that fact disturb the decision of the Board of Tax Appeals that the record before it did not justify the claims so made by the petitioner and that the cost of the stock was $45,000.
The order of the Board of Tax Appeals is reversed and the case remanded for further proceedings not inconsistent herewith.
Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)?
A. Trial (either jury or bench trial)
B. Injunction or denial of injunction or stay of injunction
C. Summary judgment or denial of summary judgment
D. Guilty plea or denial of motion to withdraw plea
E. Dismissal (include dismissal of petition for habeas corpus)
F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict)
G. Appeal of post settlement orders
H. Not a final judgment: interlocutory appeal
I. Not a final judgment: mandamus
J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment
K. Does not fit any of the above categories, but opinion mentions a "trial judge"
L. Not applicable (e.g., decision below was by a federal administrative agency, tax court)
Answer:
|
songer_circuit
|
I
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case.
UNITED STATES of America, Plaintiff-Appellee, v. Bruce Emil AITKEN, Defendant-Appellant.
No. 89-10505.
United States Court of Appeals, Ninth Circuit.
Submitted Nov. 17, 1989.
Order Entered Nov. 17, 1989.
Decided March 9, 1990.
See also, D.C., 711 F.Supp. 1031.
Michael Pancer, San Diego, Cal., for defendant-appellant.
Brian L. Sullivan, Asst. U.S. Atty., Reno, Nev., for plaintiff-appellee.
Before HUG, WIGGINS and BRUNETTI, Circuit Judges.
The panel finds this case appropriate for submission without oral argument pursuant to Ninth Circuit Rule 34-4 and Fed.R.App.P. 34(a).
HUG, Circuit Judge:
Bruce Emil Aitken appeals from the district court’s order detaining him pending trial. We heretofore entered an order affirming the district court’s denial of bail pending trial indicating an opinion would follow. This opinion expresses the reasons for our previous order. The central issue is whether the computation of the time permitted for continuances, without just cause, for a hearing on pretrial detention, permits the exclusion of weekend days as provided in Fed.R.Crim.P. 45(a).
Facts and Proceedings Below
Aitken has lived in Hong Kong for approximately 16 years. His home, family, and business are all in Hong Kong. Aitken travels throughout Asia and apparently has numerous contacts in Asia, including countries which do not extradite to the United States. Aitken also has access to extremely large sums of money.
On or about June 8, 1989, while traveling in Bangkok, Thailand, Thai authorities arrested appellant Aitken and deported him to the United States. Upon his arrival in San Francisco, California, on June 9, 1989, government agents arrested Aitken on a warrant issued pursuant to a superseding indictment that charged Aitken and seven others with conspiracy to aid and abet in the distribution of 42 tons of marijuana, in violation of 21 U.S.C. § 846; various money laundering counts, in violation of 18 U.S.C. §§ 2, 371, and 1956 and 31 U.S.C. §§ 5322(b) and 5324(1) and 31 C.F.R. §§ 103.21, 103.22(a) and 103.25(a), and a number of interstate travel in aid of racketeering counts, in violation of 18 U.S.C. §§ 2 and 1952(a)(1) and (3). The indictment also sought forfeiture of approximately $7,618,570 in United States currency.
On June 9, 1989, Aitken appeared before Chief Magistrate Woelflen in San Francisco. At that time, the Government moved for detention. Aitken requested a continuance to prepare for the detention hearing. The magistrate granted the continuance and set the detention hearing for June 16, 1989, a delay of seven days. On June 14, 1989, Aitken was removed to the district of Nevada pursuant to Fed.R.Crim.P. 40. On June 16, 1989, he appeared before Magistrate Atkins in Reno. The Government again requested detention. Aitken sought a second continuance in order to obtain the testimony of a witness who could not visit the United States prior to June 28, 1989. Finding good cause, the magistrate continued the detention hearing to June 29, 1989.
The hearing began on June 29, 1989 and was completed on June 30, 1989. On July 3, 1989, the magistrate ordered Aitken detained pending trial, finding that he constituted a flight risk. The district court denied Aitken’s motion for bail on July 20, 1989 and denied his motion for reconsideration on September 25,1989. Aitken appealed from the detention order.
DISCUSSION
Aitken contends that the delay in holding his detention hearing violates 18 U.S.C. § 3142(f) of the Bail Reform Act of 1984. Under section 3142(f), a district court must hold a hearing for indefinite pretrial detention “immediately upon the person’s first appearance before the judicial officer unless that person, or the attorney for the Government, seeks a continuance.” The statute provides that a district court may not grant a continuance of more than five days on the defendant’s motion nor more than three days on the Government’s motion absent a finding of good cause. Id.
Here, the continuance in dispute is the continuance from the date of Aitken’s initial appearance in San Francisco, California, on June 9,1989, until his appearance in Reno, Nevada, on June 16, 1989. This continuance' amounted to seven days. The continuance was granted at the request of Aitken and was thus statutorily limited to five days, there having been no showing of good cause. Whether this seven-day continuance violates section 3142(f) turns on whether Fed.R.Crim.P. 45(a) excluding the two weekend days is applied. Rule 45 provides that weekend days and holidays should be excluded in the computation of time periods less than eleven days.
Aitken relies on United States v. Hurtado, 779 F.2d 1467, 1474 n. 8 (11th Cir.1985), in which the Eleventh Circuit held:
[W]e find that Rule 45(a) is not applicable to this calculation. While Congress expressly provided in Section 3142(d) that in counting days for temporary detention we should exclude weekends and holidays, it did not include a similar provision in subsection (f). By expressly providing in one section for such an exclusion Congress obviously assumed that Rule 45(a) would not otherwise apply. By only making such provision in one of many subsections, we must assume this was a calculated decision.
A contrary result was reached by the Second Circuit in United States v. Melendez-Carrion, 790 F.2d 984, 991 (2d Cir.1986), which applied Rule 45(a). A Nevada district court criticized the reasoning of Hurtado. In United States v. Wimberly, 648 F.Supp. 1572 (D.Nev.1986), the district court held that Rule 45(a) applies to 3142(f).
The Hurtado Court’s reasoning, however, seems to contradict itself. It assumed that, even though Rule 45(a) “ordinarily” applied to statutory time periods, it did not apply to section 3142(f) because Congress did not specifically exclude weekends and holidays. But if Rule 45(a) “ordinarily” applies to statutes, then, absent a contrary policy expressed in the statute, it should apply to section 3142(f). See Union National Bank [of Wichita, Kan. v. Lamb ], 337 U.S. [38] at 40-41, 69 S.Ct. [911] at 912-13 [93 L.Ed. 1190],
The express exclusion in section 3142(d) is not to the contrary. It simply shows that Congress, recognizing that Rule 45(a) did not apply to a ten-day time period, decided to modify the normal computation of time periods greater than six days. United States v. Melendez-Carrion, 790 F.2d 984, 991 (2nd Cir.1986). On the other hand, Rule 45(a) did apply to a five-day time period and therefore a specific exclusion in subsection (f) would have been superfluous. Based on this reasoning, the Second Circuit found, and this Court agrees, that the time computation under section 3142(f) is governed by Rule 45(a). Id.
Wimberly, 648 F.Supp. at 1574. We agree with this reasoning.
Section 3142(d) deals with temporary detention to permit revocation of conditional release, deportation or exclusion. That section permits detention for ten days. At the time 3142(d) and (f) were written, Rule 45(a) applied to time periods of less than seven days, not eleven days as currently provided. Thus, had the drafters of 3142(d) not expressly excluded weekends and holidays in the computation, Rule 45(a), as then worded, would not have applied. Conversely, section 3142(f) applies to time periods of three or five days and thus was subject to the provisions of Rule 45(a) as worded at that time.
Thus, we hold that Rule 45(a) applies to the computation of time periods under section 3142(f). Accordingly, excluding the two weekend days in the computation, the continuance from June 9, 1989 to June 16, 1989 was a five-day continuance and did not violate section 3142(f). Aitken’s detention hearing was held in a timely manner and the detention order need not be reversed for failure to. hold a timely hearing.
Since we find that the detention hearing was timely, we proceed to discuss the merits of the decision to detain Aitken. On a motion for pretrial detention, the Government bears the burden of showing by a preponderance of the evidence that the defendant poses a flight risk, or by clear and convincing evidence, that the defendant poses a danger to the community. United States v. Motamedi, 767 F.2d 1403, 1406 (9th Cir.1985). Here, the district court ordered Aitken detained because he poses a flight risk. We agree. On one hand, Aitken is an American citizen, has no prior record, and has a job offer to work in Colorado. On the other hand, he has no ties to the State of Nevada, has lived for the past 16 years in Asia, and has access to large sums of cash. The Government has shown, by a preponderance of the evidence, that appellant is a flight risk. We therefore denied appellant’s motion for release pending trial. As indicated in our prior order, the district court’s detention order is AFFIRMED.
. The continuance from June 16, 1989 to June 29, 1989, was supported by a finding of good cause. This continuance does not amount to a violation of section 3142(f).
Question: What is the circuit of the court that decided the case?
A. First Circuit
B. Second Circuit
C. Third Circuit
D. Fourth Circuit
E. Fifth Circuit
F. Sixth Circuit
G. Seventh Circuit
H. Eighth Circuit
I. Ninth Circuit
J. Tenth Circuit
K. Eleventh Circuit
L. District of Columbia Circuit
Answer:
|
songer_appfiduc
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "fiduciaries". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
JEFFERSON-PILOT CORPORATION AND SUBSIDIARIES, Petitioner-Appellee, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellant.
No. 92-2054.
United States Court of Appeals, Fourth Circuit.
Argued March 1, 1993.
Decided June 14, 1993.
Bruce Raleigh Ellisen, Tax Div., U.S. Dept, of Justice, Washington, DC, argued (James A Bruton, Acting Asst. Atty. Gen., Gary R. Allen, Richard Farber, Bridget M. Rowan, on brief), for respondent-appellant.
Dean Francis Chatlain, Vice President and Tax Counsel, Jefferson-Pilot Corp., Greensboro, NC, argued (Peter H. Winslow, Scribner, Hall & Thompson, Washington, DC, on brief), for petitioner-appellee.
Before HALL, Circuit Judge, BUTZNER, Senior Circuit Judge, and VOORHEES, Chief United States District Judge for the Western District of North Carolina, sitting by designation.
OPINION
BUTZNER, Senior Circuit Judge:
The principal question in this petition for review is whether the taxpayer, Jefferson-Pilot Corporation, can amortize the costs of acquiring Federal Communication Commission (FCC) broadcast licenses. The answer depends on whether an FCC license is a “franchise” within the meaning of § 1253 of the Internal Revenue Code, 26 U.S.C. § 1253. The Commissioner of Internal Revenue appeals the Tax Court’s decision holding that three radio broadcasting licenses transferred to the taxpayer’s subsidiary, Jefferson-Pilot Communications Co., are public franchises. Applying § 1253(d)(2)(A), the Tax Court permitted the taxpayer to amortize over ten years the cost of the broadcast licenses, which its subsidiary obtained as part of its purchase of three radio stations in 1974.
We find no error in the Tax Court’s analysis. The definition of “franchise” is sufficiently broad to include licenses issued by the FCC. We affirm for reasons adequately stated by the Tax Court in Jefferson Pilot Corp. v. Commissioner, 98 T.C. 435, 1992 WL 73091 (1992).
I
The taxpayer is a holding company, and with its subsidiaries it files a consolidated tax return. One of its subsidiaries, Jefferson-Pilot Communications Co. (J-P Communications), agreed in 1973 to purchase three radio stations from the Pacific & Southern Co. In order to operate radio stations lawfully, it is necessary to obtain a license from the FCC. 47 U.S.C. § 301. The FCC also requires that it approve any transfer of broadcast licenses. 47 U.S.C. § 310(d). J-P Communications filed an application with the FCC for assignment of Pacific & Southern’s licenses to Jefferson-Pilot. In 1974, the FCC approved the assignment of the licenses, subject to certain conditions and payment of a transfer fee.
The Commissioner contends that the term “franchise” in § 1253 is ambiguous, thus necessitating resort to the statute’s legislative history. According to the Commissioner, this history indicates that Congress intended § 1253 to apply only to commercial franchises, not government grants of licenses. The Commissioner points out that § 1253 was enacted to deal with controversies over whether the transfer of a commercial franchise was a sale or a license. See S.Rep. No. 91-552 at 208-11. The Commissioner also argues that an FCC license is not an agreement within the terms of § 1253 because the FCC’s decision to grant the license does not arise from bargaining or for consideration.
The taxpayer contends that § 1253 permits it to amortize over ten years the portion of the radio stations’ cost which was attributable to the FCC licenses.
II
Section 1253 of the Internal Revenue Code provides that the “transfer of a franchise, trademark, or trade name shall not be treated as a sale or exchange of a capital asset if the transferor retains any significant power, right, or continuing interest with respect to the subject matter of the franchise, trademark, or trade name.” 26 U.S.C. § 1253(a). The statute defines “franchise” for the purposes of § 1253 as “including] an agreement which gives one of the parties to the agreement the right to distribute, sell, or provide goods, services, or facilities, within a specified area.” 26 U.S.C. § 1253(b)(1).
First, a word of explanation is appropriate on a point which is not an issue in this proceeding. Section 1253(a) speaks of a “transfer” of a franchise in which the “trans-feror” retains any significant power or continuing interest- in the subject of the franchise. Pacific & Southern Co. was the immediate transferor of the broadcast licenses to J-P Communications, but it retained no interest in the licenses. Pacific & Southern’s lack of a retained interest, however, is of no moment. For the purpose of § 1253 the FCC is treated as the “transferor.” See Rev.Rul. 88-24, 1988-1 C.B. 306. Moreover, it retained both power and a continuing interest in J-P Communications’ acquisition and use of the broadcast licenses. Jefferson-Pilot, 98 T.C. at 440, 447-50. The Commissioner does not contest these aspects of the Tax Court’s decision. Nor does the Commissioner dispute the valuation of the licenses. The critical question, then, is whether an FCC license is a franchise within the meaning of § 1253.
In concert with the Tax Court, we conclude that § 1253 is not ambiguous. “Franchise,” it is true, has several meanings ranging from the right to vote to the right to do business conferred by the government. See, e.g., Webster’s Third New International Dictionary 902 (1986); Black’s Law Dictionary 658 (6th ed. 1990). Nevertheless, Congress eliminated ambiguity by writing its own definition of “franchise” for the application of § 1253. The language of the statutory definition is plain. Consequently, our sole function is to apply it according to its terms. See West Virginia University Hospitals v. Casey, 499 U.S. 83,-, 111 S.Ct. 1138, 1147, 113 L.Ed.2d 68 (1991).
An FCC broadcast license satisfies the definition of franchise set forth in § 1253(b)(1). It is an agreement. J-P Communications agreed to operate the radio stations in the public interest according to FCC regulations in exchange for the FCC’s consent to the transfer of the licenses from Pacific & Southern. The licenses give J-P Communications the right to provide broadcast services within specified areas that are delineated by'particular broadcast frequencies.
Section 1253(e) excepts the transfer of professional sport franchises from the other provisions of § 1253. This specific exception lends weight to the taxpayer’s position that the FCC licenses are not excepted from the plain language of the statute. As the Tax Court recognized, “[i]f Congress had wanted to exclude other franchises that fell within the definition contained in section 1253(b)(1), we believe that it would have so provided.” Jefferson-Pilot, 98 T.C. at 442.
The Commissioner thoroughly canvassed the legislative history, but she found no express limitation of § 1253 to commercial franchises. The most that she could point to was Congress’s concern about the confusion over the taxation of commercial franchises. But this is too slim a reed to support the Commissioner’s argument that § 1253 pertains only to commercial franchises. The plain language of the statute precludes such a narrow interpretation.
Having satisfied all the requirements of § 1253, the taxpayer is entitled to amortize the cost of the licenses. The decision of the Tax Court is
AFFIRMED.
Question: What is the total number of appellants in the case that fall into the category "fiduciaries"? Answer with a number.
Answer:
|
songer_casetyp1_7-2
|
F
|
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".
DIKEMAN et al. v. JEWEL GOLD MINING CO. et al.
(Circuit Court of Appeals, Ninth Circuit.
June 14, 1926.)
No. 4829.
Execution @=»302.
Under Alaska Statute, execution sale of property of lessor to satisfy specific liens against it-held to exhaust such liens, and after redemption of property 'by lessee it was not subject to resale to satisfy same demands.
Appeal from the- District Court of the United States for the Third Division of the Territory of Alaska; E. E. Ritchie, Judge.
Action by J. M.' Dikeman and others against the Jewel Gold Mining Company and others. From an order denying a petition for resale of property of the named defendant to satisfy certain claims, plaintiffs appeal.
Affirmed.
See, also, 2 F.(2d) 665.
Arthur Frame and. Jas. S. Truitt, both of Anchorage, Alaska, and Walter Christie, of San Francisco, Cal., for appellants.
W. H. Rager, of Anchorage, Alaska, for appellee Jewel Gold Mining Co.
Before GILBERT, HUNT, and RUD-KIN, Circuit Judges.
RUDKIN, Circuit Judge.
This case was
before this-court on writ of error in Dikeman v. Jewel Gold Mining Co., 2 F.(2d) 665, where a full, statement of the facts may be found. After the writ of error was there dismissed for want of jurisdiction, the plaintiffs in the court below petitioned that court for an order directing a resale of the property of the Jewel Gold Mining Company, the lessor, to satisfy the balance due on the personal decrees against the lessee. The present appeal is from an order denying that petition. As will appear from the statement referred to, personal decrees were entered in favor of the several plaintiffs and against the lessee, Jewel Mining Syndicate, but no relief was awarded against the lessor, Jewel Gold Mining Company, beyond a decree establishing certain liens against its property and directing a sale thereof to satisfy them.
Briefly stated, the appellants now contend that the redemption by the lessee reinstated their liens against the property of the lessor, and the property should be resold to satisfy those liens. On the other hand, the appellees contend that the liens against the property of the lessor were exhausted by the sale, and that the same property cannot be resold to satisfy the same demands, even though there has been a redemption from the prior sale. This latter contention must be sustained. As is well known, the Alaska statute was taken from the laws of Oregon, and both sides invoke the construction placed on the laws of Oregon by its Supreme Court. In Flanders v. Aumack, 32 Or. 19, 51 P. 447, 67 Am. St. Rep. 504, it was held that the redemption of real property from an execution sale by the grantee of the judgment debtor, when the property was bid in for less than the amount of the judgment, reinstates the lien.for the unpaid balance, and a resale of the property may be had to satisfy the same. But the court was careful to distinguish between specific liens and general judgment liens. Thus, it was said:
“A mortgage is a specific lien, which attaches by virtue of the contract of the parties concerned; but the lien of a judgment is general, and attaches by operation of law, as a sequence of its rendition. Foreclosure is a remedy by which the property covered by the mortgage may be subjected to sale for the payment of the demand for which the mortgage stands as security, and, when the decree is had and the property sold to satisfy it, the mortgagee has obtained all he contracted for; but, if there is also a personal decree against the mortgage debtor, this becomes, from the date of its docketing, a general.lien upon his real property, as in ease of a judgment; and, if a deficiency remains after the; application of the proceeds of the sale of the lands covered by the mortgage, the decree may be enforced by execution, as in ordinary cases. * * • The resale does not take place under the order for the sale of the specific property covered by the mortgage lien, for that has been exhausted, but under the personal decree which remains as a deficiency decree against the mortgage debtor after the application of the proceeds arising under the order of sale; and a redemption will not reinstate the specific mortgage lien, while it will the general lien acquired by the personal decree. This distinction is clear, and is bottomed both upon principle and authority. The redemption is from the sale, and not from the mortgage; and if the lien of the personal decree has never attached, by reason of the mortgagor not having the fee of the property at the time it was rendered, there never existed any lien to be reinstated against his successor in interest, who purchased prior to the decree.”
See, also, Williams v. Wilson, 42 Or. 299, 70 P. 1031, 95 Am. St. Rep. 745.
It will thus be seen that, under the decisions of the Supreme Court of Oregon, the specific liens against the property of the lessor were exhausted by the sale, and were not reinstated by the subsequent redemption.
The decree is therefore 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:
|
sc_caseorigin
|
158
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court in which the case originated. Focus on the court in which the case originated, not the administrative agency. For this reason, if appropiate note the origin court to be a state or federal appellate court rather than a court of first instance (trial court). If the case originated in the United States Supreme Court (arose under its original jurisdiction or no other court was involved), note the origin as "United States Supreme Court". If the case originated in a state court, note the origin as "State Court". Do not code the name of the state. The courts in the District of Columbia present a special case in part because of their complex history. Treat local trial (including today's superior court) and appellate courts (including today's DC Court of Appeals) as state courts. Consider cases that arise on a petition of habeas corpus and those removed to the federal courts from a state court as originating in the federal, rather than a state, court system. A petition for a writ of habeas corpus begins in the federal district court, not the state trial court. Identify courts based on the naming conventions of the day. Do not differentiate among districts in a state. For example, use "New York U.S. Circuit for (all) District(s) of New York" for all the districts in New York.
UNITED STATES v. PUBLIC UTILITIES COMMISSION OF CALIFORNIA et al.
NO. 205.
Argued January 14, 1953.
Decided April 6, 1953.
Solicitor General Cummings argued the cause for the United States in No. 205. With him on the brief Were Assistant Attorney General Baldridge, Robert L. Stern, Paul A. Sweeney and Melvin Richter.
L. E. Blaisdell argued the cause and filed a brief for petitioner in No. 206.
Boris H. Lakusta argued the cause for respondents in No. 205. With him on the briefs were Everett C. McKeage and IVilson E. Cline for the Public Utilities Commission of California, respondent in Nos. 205 and 206.
Henry W. Coil argued the cause for respondents in No. 206. With him on the briefs was Donald J. Carman for the California Electric Power Co., respondent in Nos. 205 and 206.
Mr. Justice Reed
delivered the opinion of the Court.
Respondent California Electric Power Company produces electricity in California, partially by hydroelectric projects licensed under Part I of the Federal Power Act, 41 Stat. 1063, as amended by Title II of the Public Utility Act of 1935, 49 Stat. 838, 16 U. S. C. § 791a et seq., and markets the greater portion of it, subject to respondent Public Utilities Commission’s authority, in that State. The jurisdictional dispute which is our present concern relates only to certain power sales by the Company to the Navy Department and to Mineral County, Nevada, for consumption there. This power, following production, is transmitted at 55,000 volts to the Company’s Mill Creek substation in California, about 25 miles from the border, on its own lines. There it is figuratively taken over by the Navy and by the County, and delivered on their lines at the same high voltage to Hawthorne, Nevada, where it is stepped down for local distribution and consumption. The Navy’s power is used at its ammunition depot, largely in official industrial operations; between 15% and 29%, however, is distributed for consumption in the private households and enterprises of tenants at the Navy’s low-cost housing project nearby. These sales are metered individually and each purchaser is billed according to his own use. The power purchased by the County is all resold to local consumers, with the exception of minor line losses and official use.
The Navy’s contract for purchase of the power was negotiated in 1943, and provided for termination on 60-day notice; the County’s was entered into in 1945 for a stated period of three years. In 1947 the Power Company applied to the State Commission for a general rate increase which, after hearings at which the Navy was represented, was granted. Thereafter, the Company terminated its Navy contract and failed to renew that with the County, giving notice of its intention to apply the new schedule to these sales. Both purchasers demurred, and the Company reapplied to the State Commission for a ruling as to the applicability of the general schedule to these particular operations. After some early state exploratory hearings, the Federal Power Commission, on February 15, 1950, issued an order to the Company to show cause as to why the rates were not subject to exclusive federal jurisdiction. Thus joined, the issues were heard by both agencies at a joint proceeding on March 20 and 21, 1950. Both eventually decided in favor of their own asserted authority. The State Commission’s supporting opinion was denied review by the California Supreme Court on January 21, 1952, thus affirming its holding, while that of the Federal Power Commission was likewise approved by the Federal Court of Appeals for the Ninth Circuit, California Electric Power Co. v. Federal Power Commission, 199 F. 2d 206. As a federal question concerning the applicability of Part II of the Act was raised, certiorari was granted, 344 U. S. 810, to bring the record here from the state proceedings under 28 U. S. C. § 1257 (3).
I.
Federal authority, which we think obtains, is asserted under Part II of the Federal Power Act. This applies “to the transmission of electric energy in interstate commerce and to the sale of electric energy at wholesale in interstate commerce.” § 201(b). Regulation of the rates of such sales — other types of authority in connection with such interstate transmission operations are granted in other sections — -rests on §§ 205 (a) and 206 (a). The preliminary issue as to whether the operations in question fall within the concept of interstate commerce, on which the federal power initially depends, can be shortly disposed of, for Powell v. United States Cartridge Co., 339 U. S. 497, 509-515, firmly established that commerce includes the transportation of public property, while the irrelevance of the fact that this electricity is transmitted across the state boundary over lines owned by the Navy and by the County, as purchasers, may be seen from Jersey Central Power & Light Co. v. Federal Power Commission, 319 U. S. 61, 69, 71, and Illinois Gas Co. v. Public Service Co., 314 U. S. 498.
The most serious contentions pressed in opposition to application of Part II, arise from the self-limiting statement therein that the Act is “to extend only to those matters which are not subject to regulation by the States.” So respondents contend that Power Commission jurisdiction only begins where the local regulatory power ends, and point to Part I, § 20, as supporting their contention that the limitation applies to the facts of this case. Section 20 provides that when power from projects licensed under Part I, which that energy sold to the Navy and the County includes,
“shall enter into interstate or foreign commerce the rates . . . and the service ... by any . . . licensee .. . or by any person, corporation, or association purchasing power from such licensee for sale and distribution or use in public service shall be reasonable ... to the customer . . . and whenever any of the States directly concerned has not provided a commission or other authority to enforce the requirements of this section within such State ... or such States are unable to agree through their properly constituted authorities on the services ... or on the rates . . . jurisdiction is hereby conferred upon the commission ... to regulate ... so much of the services . . . and . . . rates . . . therefor as constitute interstate or foreign commerce . . . .” 41 Stat. 1073, 16 U. S. C. § 813.
Both Nevada and California have regulatory agencies with certain rate powers. And we may assume, though the Government asserts otherwise, that both agencies can enforce reasonable rate orders and have not disagreed. Respondents point to this as satisfying § 20, and thus ousting any Part II regulation. In short, they contend — what at first blush may appear anomalous— that federal rate jurisdiction under Part II may be prohibited by the fact that some portion of the power sold originated in hydroelectric projects federally licensed under Part I. We do not agree.
Admittedly, § 20 contemplated state regulation. And it may well be, as indicated by the congressional hearings, that Congress quite frankly chose the local authorities to regulate the bulk of interstate sales of electricity from licensed projects. In fact, a contrary view would have been almost astonishing as an historical proposition, for neither the large interstate operations of electric utilities that have developed during the last thirty years, nor the concomitant desirability of federal regulation, could have been foreseen in 1920. Long-range transmission was not then adequately developed, nor had the various local utilities by then undergone the integration into large centralized systems which later came about. So we may assume that Congress, as a policy judgment, accepted and adapted the substantial tradition of local utility regulation to power production licensed under the federal Act.
But there is no evidence that this was done with any firm intent to settle with the states a power essentially national. For whatever views of the draftsmen of § 20 as to the efficacy of state regulation, the jurisdictional lines between local and national authority were not finally determined until this Court’s opinion in Public Utilities Commission v. Attleboro Steam & Electric Co., 273 U. S. 83. This decision followed the Federal Water Power Act by some seven years. In short, that case established what has unquestionably become a fixed premise of our constitutional law but what was not at all clear in 1920, that the Commerce Clause forbade state regulation of some utility rates. State power was held not to extend to an interstate sale “in wholesale quantities, not to consumers, but to distributing companies for resale to consumers.” 273 U. S., at 89. Attleboro reiterated and accepted the holding of Pennsylvania Gas Co. v. Public Service Commission, 252 U. S. 23, that sales across the state line direct to consumers is a local matter within the authority of the agency of the importing state. But it prohibited regulation of wholesale sales for resale by either interested commission.
Respondents seek to escape that doctrine, however, by pointing to the fact that there was not there involved sales of electricity produced at a project licensed under Part I. They admit that absent § 20 of that Part, the later Part II authority would apply exclusively and determine the result. But, they say, § 20 creates an exception, which the language of Attleboro did not reach, for hydroelectric energy transmitted across state lines under the aegis of coordinated state regulation. In short, it is alleged that § 20 “conferred jurisdiction” on the states.
We do not agree. Attleboro declared state regulation of interstate transmission of power for resale forbidden as a direct burden on commerce. The states may act as to such a subject only when Congress has specifically granted permission for the exercise of this state power over articles moving interstate which would otherwise be immune. In re Rahrer, 140 U. S. 545, 560-562. Section 20 cannot bear this interpretation; it did not establish the source of the energy as a significant factor determining whether state or -federal authority applied. It is quite different from those few unique federal statutes this Court has heretofore considered, "subjecting interstate commerce ... to present and future state prohibitions,” or regulation, Clark Distilling Co. v. Western Maryland R. Co., 242 U. S. 311, 326, in the exercise of the constitutional commerce power. Its language indicates no consideration or desire to alter the limits of state power otherwise imposed by the Commerce Clause; it merely states that the federal power shall not be invoked unless certain conditions of state inability to regulate obtain. Section 20 quite obviously is not based on any recognition of the constitutional barrier, but rather assumes what Attleboro held did not exist — state authority to reach interstate sales of energy for resale; its sole concern is the application of federal regulation on the possible failure of the states to empower their regulatory agencies or their inability to agree.
Nor can it soundly be said that Congress in § 20 of Part I charged the states with responsibility of regulating rates of interstate sales of electricity through the use of the federal power over government property. U. S. Const.. Art. 4, § 3, cl. 2. As indicated in our discussion of the commerce power, there was in 1920 when § 20 was enacted no full appreciation of the limits of state power over sales of electricity for export or import for resale. So the language of § 20 required reasonable rates to consumers of electricity moving interstate and then added the provision that when no state commission was provided to enforce reasonable rates, or the states interested could not agree, the Federal Power Commission could act. We do not think such an arrangement for water power electricity as Part I, § 20, provides can be held to block the general authority of Part II. See note 13, infra.
The actions of the Congress following the Attleboro decision do not reflect any different interpretation of § 20. We note some interest in the application of that section in the light of the opinion, but nothing that is decisive of respondents’ contentions. In 1929, Senator Couzens introduced an amendment to his then pending bill, S. 6, 71st Cong., 1st Sess., to establish federal regulation of communications. The amendment, § 47 et seq., would have established a federal rate authority over all interstate power sales. “Power” was defined, § 47 (a) (4), to include electric energy, “whether or not produced by a licensee under the Federal Water Power Act.” The bill was referred to Committee, but Congress took no final action. In the next year, the same Committee held hearings on S. Res. 80, concerning a purported breakdown in the investigative powers of the Federal Power Commission as it then was constituted. The decision of the Commission of February 28, 1929, reported F. P. C. Ninth Ann. Rep. 119, was introduced. This argued that, as a result of Attleboro, the Commission had exclusive jurisdiction over rates of interstate wholesale-for-resale sales of licensed hydroelectric power, until displaced by a § 20 agreement of the interested states which received congressional approval as a compact.
The first positive congressional action in the field, of course, was the Federal Power Act of 1935. The sweep of the statute is wholly inconsistent with any asserted state power as fixed by § 20 of the 1920 Act. We have examined the legislative history; its purport is quite clear. Part II was intended to “fill the gap”- — the phrase is repeated many times in the hearings, congressional debates and contemporary literature — left by Attleboro in utility regulation. Congress interpreted that case as prohibiting state control of wholesale rates in interstate commerce for resale, and so armed the Federal Power Commission with precisely that power. There is nothing to indicate that Congress’ conception of the states’ disability in 1935, or of the power it gave the Commission by Part II, did not include Part I electricity. In fact, the unqualified statements concerning Part II favor the opposite construction, for we find the Act explained time and again as empowering the agency with rate authority over interstate wholesale sales for resale; not once is this authority spoken of as one conditioned on the electricity concerned having been produced by steam generators or at nonlicensed dams.
This would largely determine our interpretation of the ambiguous reference to “matters . . . subject to regulation by the States,” § 201 (a), if nothing more were available to work with. However, there is other proof that Congress did not have in mind § 20-type state regulation. The limiting clause is spoken of only as protecting state regulation of local affairs, including rates of intrastate and interstate-for-consumption sales: “Facilities for local distribution and for the production and transmission of energy solely for one’s own use and not for resale are excluded.” Hearings, House Committee on Interstate and Foreign Commerce on H. R. 5423, 74th Cong., 1st Sess. 385. The phrase is not once mentioned as the distinct affirmation of state power over interstate sales for resale under § 20 that respondents apparently would recognize it to be. There are indeed further reasons for rejecting respondents’ construction of § 201 (a). The nature of the generating facilities, in the first place, has no functional significance for rate regulation; the same considerations that lead Congress to enact federal authority over interstate electricity in general would have been similarly applicable to power generated at licensed projects. Secondly, contemporary literature was frankly divided over whether any power over interstate sales for resale remained with the states after Attleboro. We cannot assume that Congress enacted Part II with the purpose of permitting the states to regulate hydroelectric energy through § 20. This is especially so in view of the dearth of legislative discussion of the matter.
So we conclude that the limitations of § 201 (a) on federal regulation cannot, and were not intended to, preserve an exclusive state regulation of wholesale hydroelectric sales across state borders. Even if we conceived of the matter as one peculiarly limited to the statutory wording of § 201 (a), our statement that “[exceptions to the primary grant of jurisdiction in the section are to be strictly construed,” Interstate Natural Gas Co. v. Federal Power Commission, 331 U. S. 682, 690-691, would be as applicable here as to § 1 (b) of the Natural Gas Act. “Production” and “distribution” are elsewhere specifically excluded from Commission jurisdiction, § 201 (b); the phrase relied on in § 201 (a) was originally drafted as a declaration of “policy,” and the rewording which gave it its present more succinct form was unaccompanied by any “mention [of] this change as one of substance.” Jersey Central Power & Light Co. v. Federal Power Commission, 319 U. S. 61, 76, referring to H. R. Rep. No. 1318, 74th Cong., 1st Sess. 26. “It cannot nullify a clear and specific grant of jurisdiction, even if the particular grant seems inconsistent with the broadly expressed purpose.” Connecticut Light & Power Co. v. Federal Power Commission, 324 U. S. 515, 527. To conceive of it now as a bench mark of the Commission’s power, or an affirmation of state authority over any interstate sales for resale, would be to speculate about a congressional purpose for which there is no support.
Part II is a direct result of Attleboro. They are to be read together. The latter left no power in the states to regulate licensees’ sales for resale in interstate commerce, while the former established federal jurisdiction over such sales. Discussion of the constitutional problem as reflected in that statute and the Natural Gas Act in recent cases supports this conclusion. Especially in the litigation arising under the Gas Act has this Court expressed the view that the limitations established on Commission jurisdiction therein were designed to coordinate precisely with those constitutionally imposed on the states. Federal Power Commission v. Hope Natural Gas Co., 320 U. S. 591, 609-610; Panhandle Pipe Line Co. v. Public Service Commission, 332 U. S. 507, 514-515; Interstate Natural Gas Co. v. Federal Power Commission, 331 U. S. 682, 690-691; Illinois Natural Gas Co. v. Public Service Co., 314 U. S. 498, 506.
II.
We turn next to a definitional problem raised by respondents, relating to the sales to Mineral County. In short, it is this: §201 extends Commission jurisdiction to “sale of electric energy at wholesale in interstate commerce.” Subsection (d) of that section states:
“The term 'sale of electric energy at wholesale’ when used in this Part means a sale of electric energy to any person for resale.”
And § 3 (4) equates “person” with “individual or a corporation,” while § 3 (3) excludes municipalities defined in § 3 (7) from the scope of the latter term. So respondents argue that the sales to Mineral County are neatly and decisively excluded from Part II rate regulation.
The use of these sections in support of an indirect exception to Part II has no support in the statutory scheme as a whole. Sections 306 and 313 (a), in fact, look quite the other way. They provide for complaints and petitions for rehearing by municipalities. And § 3 (7) contemplates municipalities as users and distributors of power. To accept respondents’ contention as to Mineral County would thwart the premise of these provisions: that such political subdivisions of the states can be aggrieved by the failure of a public utility selling power to them to satisfy the requirements of Part II.
Nor do we find any evidence of conscious coordination of §§ 3 (3), (4) and 201 (d) from the legislative history. True, they were simultaneously enacted, and, in fact, the interpolation of the word “person” into § 201 (d) occurred after the §§ 3 (3) and 3 (4) definitions were in existence in S. 2796, 74th Cong., 1st Sess., as passed by the Senate and reported to the House, June 13, 1935. But this alteration came at the insistence of the House. The Senate had provided for jurisdiction over sales occurring before or after interstate transmission,'ibid., §201 (f), and the House amendment, from which § 201 (d) in its present form stemmed, covered sales during the transmission across state lines for the first time. So the House Report is, we think, significant in its redefinition of the section: “A ‘wholesale’ transaction is defined to mean the sale of electric energy for resale.” H. R. Rep. No. 1318, 74th Cong., 1st Sess., p. 8. We conclude, therefore, that the Congress attached no significance of substance to the addition of the word “person,” and in fact did not intend it as a limitation on Commission jurisdiction. Indeed quite the contrary was sought by the House amendment of §201 (d).
A third factor, in addition to the statutory scheme and legislative history of § 201 (d), is the rejection of respondents’ contention by the Commission and courts. Three circuits have just recently done so, and the Federal Power Commission’s long assertion that it has authority over rates of sales to municipalities has probably risen to tLe dignity of an agency “policy.” We have often stated our sympathy with established administrative interpretations such as this. Cf. United States v. American Trucking Ass’ns, 310 U. S. 534, 549.
Where the language and purpose of the questioned statute is clear, courts, of course, follow the legislative direction in interpretation
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Answer:
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songer_opinstat
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A
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What follows is an opinion from a United States Court of Appeals. Your task is to identify whether the opinion writter is identified in the opinion or whether the opinion was per curiam.
Barbara CAMPBELL, Plaintiff-Appellant, v. Peter OLIVA, M.D., Defendant-Appellee.
No. 19810.
United States Court of Appeals, Sixth Circuit.
April 22, 1970.
N. Eugene Worthington, Madisonville, Tenn., J. D. Lee, Madisonville, Tenn., Charles R. Terry, Morristown, Tenn., on the brief, for appellant; Reed & Terry, Morristown, Tenn., of counsel.
C. T. Herndon, III, Johnson City, Tenn., J. Paul Coleman, C. T. Herndon, III, Johnson City, Tenn., on the brief, for appellee; Simmonds, Herndon, Johnson & Coleman, Johnson City, Tenn., of counsel.
Before WEICK and EDWARDS, Circuit Judges, and O’SULLIVAN, Senior Circuit Judge.
WEICK, Circuit Judge.
The only question in this appeal is whether the District Court erred in granting defendant’s motion for a directed verdict, made at the close of all of the evidence.
The suit was against a plastic surgeon for damages for malpractice in his diagnosis, treatment and surgei’y of plaintiff’s jaw. Jurisdiction was based on diversity of citizenship.
The substantive issues of this case are governed by Tennessee law. The procedural issues are controlled by Federal law. In the Federal Courts, factual issues are decided by the jury and not by the Court. Byrd v. Blue Ridge Rural Elec. Co-Op., Inc., 356 U.S. 525, 78 S.Ct. 893, 2 L.Ed.2d 953 (1958).
In the consideration of a motion for a directed verdict made by the defendant at the close of all the evidence, the Court is required to view the evidence, as well as all inferences properly deducible therefrom, in the light most favorable to the plaintiff. Taylor v. Cirino, 321 F.2d 279 (6th Cir. 1963).
The Supreme Court of Tennessee, in construing Art. VI § 9 of the Tennessee Constitution, held that it “was intended to preserve to the jury ‘the right to determine what facts are proved in a cause.’ Ivey v. Hodges, 23 Tenn. (4 Humph.) 154, 155.” Haskins v. Howard, 159 Tenn. 86, 97, 16 S.W.2d 20, 23 (1929).
In Cantrell v. Railway Co., 90 Tenn. 638, 18 S.W. 271 (1891), it was held:
“For the Court to direct the jury to return a verdict in favor of either party, where there is any conflict in the evidence, is an invasion of the province of the jury by the Court, for which the ease will be reversed.” (Italics ours) (Syl. 4)
The plaintiff, Barbara Campbell, was a minor, who, with her husband, was attending East Tennessee State University at Johnson City, Tennessee. On September 20, 1967, while frolicking with her husband, she received an accidental blow on the left side of her face. Numbness developed for a short time. Six days later she awoke with pain in her left jaw. She consulted Dr. Burgin Dossett, Jr., an internist at the University Clinic. Dr. Dossett sent her to Memorial Hospital, where x-ray pictures were taken of her jaw by Dr. J. J. Range, a radiologist, admittedly qualified by education and experience to read and interpret x-ray pictures. Dr. Range interpeted the x-rays and reported them as negative for fractures and reported further that the left temporomandibular joint appeared normal. Dr. Dossett informed Dr. Oliva of this reading.
The pain did not subside. Dr. Dossett was unable to open Barbara’s mouth wide enough to insert a tongue depressor. On October 15th Dr. Dossett referred Barbara to the defendant, Dr. Peter Oliva, who specialized in the practice of plastic surgery, in the area of Johnson City. Until she consulted Dr. Oliva, Barbara had received no treatment by Dr. Dossett except analgesics for pain.
When Barbara consulted Dr. Oliva on October 15th, she handed the x-rays to him, but did not see him examine them. He opened and closed her mouth and asked her when she had pain. He told her she had a fracture of the left con-dyle and that it would have to be repaired by surgery. The following day, October 16th, Oliva saw her again and injected the area of the left condyle with drugs in order to mobilize it. He also inserted a needle in the area by the use of which he claimed to be able to diagnose that there was a fragment, or a fracture, or a detached condyle. The drugs did not alleviate the pain. He testified that he was unable to move the upper joint and could move the lower only half a centimeter. This procedure consumed from thirty to forty minutes.
He testified:
“It was then obvious to us that we had a fracture here, or we had a detached condyle, or we had a fragment that needed to be removed in order to relieve her pain.”
He testified further:
“This is when we informed the patient that she had either a fracture or a chip there and that an operation was going to be needed to explore the area and see what needed to be done.” His interpretation of the x-rays was:
“There was a question, irregularity there, that usually is not present.”
The fact that the doctor did not state which of the three different conditions was obvious to him, and his admission of the question or irregularity in the x-rays, would seem to indicate the necessity of taking additional x-rays before performing the operation. Oliva said that he explained to Barbara what type of operations could be done, depending on what was there. His frequent use of the pronoun “we” throughout his testimony referred to himself, as he alone performed the surgery.
Barbara testified that she “asked him [Oliva] why he knew right away that I had a fracture when at the hospital they said it was not fractured and he said that they didn’t know how to read x-rays at the hospital.”
Barbara further testified that Oliva told her it would be a very minor operation and that she would be up and able to eat within three or four days, and could return to school the following Monday after the operation. He told Barbara and her mother that he would make a small incision on the left side of her face and repair the condyle. Barbara’s mother and husband testified that he told them substantially the same thing. They testified that Oliva did not tell them that he was going to operate on both left and right condyles. But on his own office record, Oliva made a notation on October 16 that if her condition did not improve he “will resort to a bilateral condylectomy.”
Oliva performed the surgery on Barbara on October 26, 1967. He wrote the following findings and procedure in the hospital record:
“This patient had had a blow approximately six weeks prior and has had severe trismus with difficulty TM joint pain.”
Procedure, “Under suitable general anesthetic the patient was prepped and draped in the usual manner. Through a curved incision in the right temporal, the condyle was exposed and the condyle was removed in routine manner. Following adequate repair, the capsule was closed, and routine plastic closure carried out utilizing 4-0 plain and 6-0 nylon. Sterile dressing was applied. The patient tolerated the procedure well and was sent to the recovery room in good condition. This was done bilaterally.” (App. at 248)
The record would seem to indicate that Oliva first repaired the right condyle, which was healthy and actually required no repair work. He then operated on the left, which he thought was fractured, or dislocated, or fragmented. His testimony, however, contradicts the record, for he testified that he operated first on the left condyle.
He testified that the top portion of the left condyle was stuck. He removed the left condyle and clipped it. This, he testified, shortened the condyle and would cause a cross bite. He testified that in order to effect a balance between the condyles, he operated and clipped the healthy right condyle so that both condyles would be of the same length. The trouble with this latter procedure is that it resulted in an open bite. She now has occlusion on only four teeth in the back of her mouth, i.e., on the rear two teeth on each side; there is no contact whatsoever with the front teeth. She is unable to close her mouth and it remains open. This condition is permanent. She continues to suffer pain. She can open her mouth only about n/i6 of an inch. The normal opening is one and one-half to two inches. She can eat only soft food.
Oliva prescribed an Ace bandage in order to bring her teeth into occlusion, but it did not work. He also told her to chew gum. She saw Oliva about four times after the surgery, and then she consulted Dr. Carl Sammarco, an oral surgeon, at her home in New Jersey. Dr. Sammarco prescribed a wiring process in an attempt to bring the teeth into occlusion.
At the trial there was read into evidence the deposition of Dr. Carl Sam-marco, who practiced in Asbury Park, New Jersey. He testified that he called Dr. Oliva on the telephone and asked him why he had done a bilateral condy-lectomy, and that Oliva replied it was to balance the joints. Sammarco told Oliva that was rather unusual. Oliva disagreed and said it was not unusual 'and that there was nothing to worry about because the condyles will grow back. Oliva did not, however, name any such operation that he had ever performed. In some forty or fifty fractured con-dyles treated by Dr. Sammarco, he found it necessary to operate on only one. Dr. Sammarco testified that the x-rays of Barbara showed two normal condyles. He could not see how Dr. Oli-va could determine by clinical examination the presence of a fragment which was not large enough to appear on an x-ray. Sammarco testified that he had never heard of doing a condylectomy on a normally functioning joint.
Dr. Sammarco further testified that an Ace bandage, as prescribed by Dr. Oliva, had long been discarded as useless to bring about occlusion.
Two oral surgeons, Dr. Carson Blevins and Dr. Edwin Smith, from the area of Johnson City, Tennessee, were called as expert witnesses for plaintiff. Both doctors testified that they were familar with the practice of oral and plastic surgery as it pertains to the area of the jaw, in the locality of Johnson City.
Dr. Carson Blevins testified that as a result of the operation, Barbara could open her mouth only about Wie of an inch; the normal opening is one and one-half to two inches. In answer to a hypothetical question, he testified that anyone who does condylar fractures should know that the choice of treatment is a conservative approach to start with. Since there was no evidence of a fracture in the x-rays he felt that radical surgical treatment was unjustified. He testified:
“ * x- * jf y0U don’t get the occlusion back where the patient can use the jaws as they are supposed to be and function properly, everything else is lost. I do feel this patient should have been — the jaws and teeth should have been put back in proper relationship immediately or before the patient left the hospital and maintained there. But I want it known, first, I don’t think the surgery should have been done.”
The doctor based that conclusion—
“ * * * because there was no evidence of a fracture on the X-ray and from the history and from what I read in the hospital records, I could see no reason for radical surgery.”
He was of the view also that further x-rays should have been made and consultation had before radical surgery.
Dr. Smith defined oral surgery as
“ * * * that part of dentistry that deals with the diagnosis, surgical and adjunctive treatment of injuries, disease, malformations of the human jaws and associated structures.”
Dr. Smith was of the opinion that Oli-va did not exercise the degree of care and skill possessed by practitioners of similar skill in the area. He questioned “the diagnosis of a fracture that waited six days to hurt.” He was of the opinion that the treatment plan was “radical, fracture or not.”
Both oral surgeons also testified in response to questions by the Court, that Oliva did not exercise that degree of care and skill possessed by other surgeons in the locality.
Oliva had qualified to practice in Memorial Hospital. He had consulted the hospital radiologist, Dr. Range, in connection with other cases when there was a question about the x-rays, but did not consult him about Barbara’s x-rays nor his interpretation of them, notwithstanding the fact that he (Oliva) claimed there was an irregularity. This seems significant, particularly since he did not agree with Dr. Range’s interpretation. Furthermore, Oliva had plenty of time to obtain additional x-rays of the left jaw, as the surgery was not performed until ten days later, on October 26th. Oliva did order other x-rays, not of Barbara’s left jaw, but of her chest. Oliva did not consult with any of the oral surgeons in the area who specialized in the treatment and setting of fractured jaws, or with anyone else.
Oliva testified that ankylosis and fibrosis of the left jaw had developed, which necessitated the operation. These conditions were not shown on the x-rays. However, even though such conditions might not appear on x-rays, they would seem to be quite significant, and the conditions, if they existed, ought to have been noted in the hospital record; but they were not.
The defense called Dr. Dossett, the internist, who testified concerning his examination and treatment of Barbara. He said he “felt sure that she had a fracture in the area of the temporoman-dibular joint where the bone was.” He did not qualify as an expert in the reading of x-rays or in oral or plastic surgery. The record does not reveal when he made the diagnosis, or that he ever advised his patient of his diagnosis.
The defense called two plastic surgeons, Drs. Claringdon and Jerome, to testify. They were from Memphis, Tennessee, about six hundred miles from Johnson City. In qualifying them as expert witnesses, defense counsel asked them if they were familiar with the standard of care as regards plastic surgery or the degree of care and skill required of a plastic surgeon practicing his speciality in Johnson City, Tennessee, and they both testified that they were. It should be remembered that Dr. Oliva was the only plastic surgeon in that area, and therefore his standard of care could not be compared with that of any other plastic surgeon in that locality. It could be compared with that of oral surgeons in the area who specialized in surgery of the jaw and with that of plastic surgeons in other areas of the state.
The District Judge recognized the problem, stating that the rule in Tennessee is that—
“ * * * the standard required of the defendant was that he possess [and exercise] the degree of skill and ability ordinarily possessed [and exercised] by men [and women] engaged in the practice of medicine and surgery in the same locality * * *. Haskins v. Howard, 159 Tenn. 86, 95, 16 S.W.2d 20."
The District Judge was of the view that an exception to the rule should be made and resort had to the standard in a wider area but still encompassing Johnson City. On this theory he admitted the testimony of the two Memphis experts and excluded opinion testimony of the New Jersey oral surgeon (who was not much farther away than Memphis), relative to the standard of care.
The District Judge admitted the testimony of two local oral surgeons skilled in surgery of the jaw because the two professions appeared to him to overlap in the area of the diagnosis and treatment of injuries to the jaw.
Dr. Claringdon testified, in answer to a hypothetical question, that there are three ways of treating a condylar fracture that has become stuck: unilateral, or one side condylectomy; bilateral, or both sides; or unilateral with attempt to reconstruct the joint; that the third method is of more recent origin; and that a unilateral ends up with “maybe a cross bite”. A bilateral “will most probably end up with an open bite due to vertical shortening of the bones.”
The opinion of Dr. Claringdon as to choice is weakened because he admitted that he had never performed a bilateral condylectomy. He said it was an unusual case and he had never seen one of them. The testimony as to the unusual case conflicted with the statement made by Dr. Oliva to Dr. Sammarco, to the ef-feet that bilateral condylectomies were usual.
The hypothetical question put to Dr. Claringdon also included the assumption that fibrosis and ankylosis were present, which presence, as previously pointed out, was in dispute. If they were not present, his opinion would be different.
The other plastic surgeon called by the defense was Dr. Jerome, who was Chairman of the Department of Plastic Surgery at the University of Tennessee Medical College, in Memphis. He also engaged in the practice of plastic surgery. He taught Dr. Oliva when he was a student in that University, and described Dr. Oliva as one of his best students.
Dr. Jerome defined plastic surgery as—
“ * * * that branch of surgery which has the objective of either improvement in appearance or improvement in function.”
This definition is broad enough to embrace practically all fields of surgery. In establishing his qualifications as an expert, Dr. Jerome testified that he reviewed 1700 facial fractures within a period of ten years. He could not answer a question on cross-examination as to whether a bilateral condylectomy was involved in any of the 1700 cases.
Referring to late fractures of five weeks, he said: “I have never seen one in my entire experience.” In all of his extensive experience, he never performed a bilateral condylectomy. Nevertheless, Dr. Jerome testified that Dr. Oliva’s procedure was correct. In answer to a hypothetical question, he testified:
“First of all, it should be very apparent at this late date, I think, about five weeks post-trauma, is that correct? That this patient was unable to move her mouth; that she obviously had a fracture of the neck of the condyle, and not only did she have fibrosis and ankylosis, but I expect she probably had malunion due to the fact that she was unable to move her mouth. There is nothing that could have been done except to go ahead and remove the condyle.
“There are several acceptable procedures. This is one which would be acceptable too. I must also point out that a fracture five weeks post-trauma, you must just as well say the ballgame is over. You have got to accept disability.
“You are trying to substitute a lesser disability for a greater disability. In other words, the complete locked jaw or frozen jaw, I can’t think of anything more disabling than that.
“If you do a unilateral condylecto-my, of course, the disability regarding a cross bite — that can be disabling. If you do a bilateral condylectomy, you are going to have an open bite. There isn’t anything you can do for an open bite. That is something you have got to accept. I think it would be the lesser of the two disabilities.” (App. at 311-312)
This testimony as to the seriousness of Barbara’s condition conflicts with the verbal assurances given by Dr. Oliva to Barbara and her husband and mother, that the operation would be minor and that she would be able to eat and to return to school in three or four days.
The hypothetical question put to Dr. Jerome also contained the assumption that ankylosis and fibrosis were present. This presence was in dispute. The doctor testified that he would change his opinion if that condition was not present in fact.
Dr. Jerome admitted that a finding of ankylosis and fibrosis would warrant entry on the medical record.
The excised fragments of the condyles were submitted to the hospital pathologist, who found them “grossly unremarkable”.
Oliva contends that the operative procedure which he followed was a matter of choice among competent physicians and that he cannot be held liable for malpractice in selecting one which in his best judgment was best suited to his patient’s needs. Gresham v. Ford, 192 Tenn. 310, 241 S.W.2d 408 (1951); Ball v. Mallinkrodt Chem’l Works, 53 Tenn. App. 218, 381 S.W.2d 563 (1964): Mc-Peak v. Vanderbilt Univ. Hosp., 33 Tenn.App. 76, 229 S.W.2d 150 (1950); Blankenship v. Baptist Memorial Hosp., 26 Tenn.App. 131, 168 S.W.2d 491 (1942).
It would seem to us that when the choice to be selected by the physician involved the serious consequences described by the Memphis plastic surgeons, i.e., the choice between a cross bite or an open bite, the patient ought to be consulted and given opportunity to consider and make the selection as to the one she preferred. According to the testimony of plaintiff, her husband and mother, this was not done. To the contrary, they were told by Oliva that the operation would be minor and that plaintiff would be able to eat and to return to school within a few days.
Furthermore, neither Doctor Claring-don nor Doctor Jerome (in his wide experience), who testified as to the choice of procedures, had ever performed a bilateral condylectomy, and therefore they had no experience with the operation. This rendered their testimony as to choice of procedures of little value.
In considering the motion for a directed verdict, the testimony as to the assurances given by Oliva, although it may be controverted in some respects, must be taken as true. It is for the jury, and not the Court, to determine the facts.
A physician stands in a position of trust and confidence with respect to his patient and he has a duty to exercise the utmost good faith. Ball v. Mallinkrodt Chem’l Works, supra 381 S.W.2d at 567; 41 Am.Jur., Physicians and Surgeons, §§ 73-75; 70 C.J.S. Physicians and Surgeons § 48m.
In Ball, the Court of Appeals of Tennessee approved the following instruction to the jury:
“It is also the duty of a physician or surgeon to disclose to the plaintiff facts which are necessary to form the basis of an intelligent consent by the patient to the proposed treatment. Where the consequences are serious and substantially certain to occur, it is the physician’s or surgeon’s duty to disclose such facts to the patient. The physician may not minimize the normal operation in order to induce the patient’s consent, at the same time the physician must place the welfare of his patient above all else, and the very fact places him in a position in which he must sometimes choose between two alternate courses of action, one is to explain to the patient every risk attendant upon any surgical procedure or operation, no matter how remote. This may well result in, alarming a patient who is already unduly apprehensive and who may, as a result, refuse to undertake the surgery in which there is, in fact, minimal risk. It may also actually increase the risk by reason of the psychological result of the apprehension of it. The other is to recognize that each patient presents a separate problem, that the patient’s mental and emotional condition is important and in certain cases may be crucial, and that in discussing the elements of risk a certain amount of discretion must be employed consistent with the full disclosure necessary for an informed consent.” (Id. at 567)
The appendix in this case contains what purports to be a copy of a consent to the operation, which was signed by the plaintiff and by her mother. Why it was signed by her mother instead of her husband does not appear. In the consent form the operation is described as “Exc.bil.condyles.” There is no proof of the meaning of the words “Exe.bil.eon-dyles” as used in the consent, or that their meaning was ever explained by anyone to the patient or her mother. The patient would not normally expect that the consent which she was asked to sign would differ from what her doctor told her. The consent also states:
“The nature and purpose of the operation, possible alternative methods of treatment and possibility of complications have been fully explained to me.”
The doctor did explain to her that it was a minor operation, and that she would be able to eat and to return to school within a few days. He told her that he would repair the left condyle. He did not tell her that he intended to operate on her healthy right condyle; nor did he tell her of any choices he had, nor ask her which one she preferred. Contrary to the provisions of the “Consent”, he did give her assurances as to the results.
Furthermore, the physician’s privilege to decide between one of two or more choices in the treatment of his patient is conditioned upon the presumption that there was a “careful diagnosis”. Haskins v. Howard, 159 Tenn. 86, 16 S.W.2d 20 (1929), citing Burnett v. Layman, 133 Tenn. 323, 328, 181 S.W. 157 (1915).
In the present case there can be no such presumption. The question whether Oliva made a careful diagnosis was a disputed issue of fact for the jury to decide.
We think the Court was correct in admitting the testimony of oral surgeons who testified that they were familiar with the practice in the locality, of oral as well as plastic surgery as it related to injuries to the jaw. An issue of fact was present as to whether Oliva’s diagnosis and procedures conformed to proper practice in the locality. In view of the conflict in testimony of the experts, this was for the jury to decide.
The defense questioned the propriety of the wiring of plaintiff’s jaws by Dr. Sammarco. This likewise is a disputed issue of fact.
It would have been better practice in this case for the District Judge to have submitted the case to the jury. In the event that plaintiff obtained a verdict, he could enter judgment notwithstanding the verdict if he was of the opinion that plaintiff had not made out a case. On appeal, this Court could then finally dispose of the case without the necessity of remanding for a new trial. Green v. Reynolds Metals Co., 328 F.2d 372 (5th Cir. 1964); Talbot-Windsor Corp. v. Miller, 309 F.2d 68 (1st Cir. 1962).
For error in directing a verdict, the judgment of the District Court is reversed and the cause is remanded for a new trial.
. The testimony of the three oral surgeons as to proper practice conforms to that approved by Laszlo Schwartz, D.D.S., in “Disorders of the Temporomandibular Joint,” where the author states:
“Following unilateral condylectomy or resection the function is generally good. During opening the mandible usually deviates to the operated side with upward tilting in some cases. However, the occlusion is generally normal. Sometimes, however, such upward tilting of the mandible on the operated side causes traumatic occlusion and an open bite on the opposite side. To counteract this treatment should be instituted as soon as possible after the operation to secure the best possible occlusal balance, if necessary by prosthetic correction. Bilateral resection is, however, inadvisable, owing to a tendency for backward movement of the mandible with tilting, causing the opening of the bite anteriorly, and making it difficult to obtain a satisfactory occlusion.” (p. 275) (Italics ours)
Question: Is the opinion writer identified in the opinion, or was the opinion per curiam?
A. Signed, with reasons
B. Per curiam, with reasons
C. Not ascertained
Answer:
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sc_lcdisposition
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the treatment the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed, that is, whether the court below the Supreme Court (typically a federal court of appeals or a state supreme court) affirmed, reversed, remanded, denied or dismissed the decision of the court it reviewed (typically a trial court). Adhere to the language used in the "holding" in the summary of the case on the title page or prior to Part I of the Court's opinion. Exceptions to the literal language are the following: where the Court overrules the lower court, treat this a petition or motion granted; where the court whose decision the Supreme Court is reviewing refuses to enforce or enjoins the decision of the court, tribunal, or agency which it reviewed, treat this as reversed; where the court whose decision the Supreme Court is reviewing enforces the decision of the court, tribunal, or agency which it reviewed, treat this as affirmed; where the court whose decision the Supreme Court is reviewing sets aside the decision of the court, tribunal, or agency which it reviewed, treat this as vacated; if the decision is set aside and remanded, treat it as vacated and remanded.
UNITED STATES et al. v. TEXAS & PACIFIC MOTOR TRANSPORT CO.
NO. 38.
Argued November 7-8, 1950.
Decided February 26, 1951.
Daniel W. Knowlton argued the cause for the United States and the Interstate Commerce Commission, appellants in No. 38. With him on the brief were Solicitor General Perlman, Acting Assistant Attorney General Un-derhill and H. L. Underwood.
Frank C. Brooks argued the cause and filed a brief for appellant in No. 39.
J. T. Suggs argued the cause for appellee. With him on the brief were R. Granville Curry, W. O. Reed, Claude Williams, Robert Thompson and D. L. Case.
Mr. Justice Reed
delivered the opinion of the Court.
These appeals, by the Interstate Commerce Commission, and by the intervenor, Regular Common Carrier Conference of American Trucking Associations, Inc., from the judgment of a three-judge federal district court setting aside two orders of the Interstate Commerce Commission, and entering a permanent injunction, raise questions similar to those discussed in No. 25, United States v. Rock Island Motor Transit Co., ante, p. 419, decided today. The questions relate to the power of the Commission to ban service practices theretofore permitted under certificates of public convenience and necessity previously issued to a common carrier by motor vehicle. The Commission acted under authority reserved in the certificate to impose additional restrictions to insure that the motor carrier’s operations will be auxiliary to or supplemental of the operations of its parent common carrier by rail.
The Texas and Pacific Motor Transport Company is a wholly owned subsidiary of the Texas and Pacific Railway, operating a system of regular routes for the carriage of freight, from New Orleans to El Paso, Texas, and Lovington, New Mexico, roughly paralleling the lines of the railway and its subsidiaries. Transport was organized in 1929 to provide a local pick-up and delivery service in connection with rail transportation between points on the lines of the railway. Its first over-the-road common-carrier operation, between Monahans, Texas, and Loving-ton, New Mexico, was inaugurated just before the effective date of the Motor Carrier Act of 1935. It extended its operations by obtaining certificates of convenience and necessity from the Commission, both under § 213 of the 1935 Act, now § 5 of the Interstate Commerce Act, providing for acquisition of established rights by purchase from other carriers (“grandfather” rights); and under § 207 of the Interstate Commerce Act, providing for new operations.
Between July 1939 and November 1942, the Commission issued sixteen certificates to Transport, covering various segments of its presently operating routes. In all the certificates the Commission reserved the right to impose further restrictions in order to confine Transport’s operation to service “auxiliary to, or supplemental of, rail service.” This condition was expressed in either one of the two forms set out in the margin. In addition, each certificate contained one or more, usually more, further conditions: (1) That the service to be performed was to be “auxiliary to, or supplemental of” the rail service. (2) That only railway station points were to be served. (3) Either that (a) all shipments should be made on a through rail bill of lading, including a prior or subsequent rail movement; or (b) that no shipments should be made between certain “key points” on the rail line, or through more than one of them. And (4) that the contractual arrangements between Transport and Railway be subject to modification by the Commission.
The irregular incidence of these conditions in the certificates may be accounted for by the segmentary fashion in which Transport built up its system of routes, over a period of several years. They were not reconsidered as a group by the Commission until 1943, when, in response to a petition by Transport, to determine what modification should be made in its certificate No. MC-50544 (Sub-No. 11), particularly in regard to service for freight between El Paso and Sierra Blanca, Texas, for the Texas and New Orleans Railroad Company, it reopened nine of the certificate proceedings to consider whether Transport could join with other motor carriers in rates, some of which provided for substituting rail service for motor service. The Commission held that
“Since petitioner’s certificates limit the service to be performed to that which is auxiliary to or supplemental of the rail service of the railway [in some the limitation was by reservation], it is without authority to engage in operations unconnected with the rail service and, accordingly, may not properly be a party to tariffs containing all-motor or joint rates, nor participate in a directory providing for the substitution of train service for motor-vehicle service at its option. To the extent petitioner is performing or participating in all-motor movements on the bills of lading of a motor carrier and at all-motor rates, it is performing a motor service in competition with the rail service and the service of existing motor carriers; and, to the extent it is substituting rail service for motor-vehicle service, the rail service is auxiliary to or supplemental of the motor-vehicle service rather than the motor-vehicle service being auxiliary to or supplemental of rail service.”
The Commission did not issue any affirmative order, but directed Transport to modify its service in accordance with the findings, within a reasonable time.
Transport and Railway then petitioned jointly for reconsideration, or for further hearings, including hearings on certain other certificates; and, although the two petitioners later attempted to withdraw their petition on the ground that permission to file a joint tariff had been granted, the Commission nevertheless ordered that the proceedings be reopened in all sixteen certificates, and three Temporary Authorities, “solely to determine what, if any, changes or modifications should be made in the conditions contained in the outstanding certificates of public convenience and necessity . . . .”
After a hearing at which Transport and Railway appeared, but refused to introduce any evidence, and after oral argument on the examiner’s report, the Commission on January 22, 1948, ordered that all sixteen certificates be modified to include uniformly the substance of the five conditions set out above, specifically as follows:
“1. The service to be performed by applicant shall be limited to service which is auxiliary to, or supplemental of, the train service of The Texas and Pacific Railway Company, The Weatherford, Mineral Wells and Northwestern Railway Company, or Texas-New Mexico Railway Company, and, between El Paso and Sierra Blanca, Tex., the train service of Texas and New Orleans Railroad Company, hereinafter called the railways.
“2. Applicant shall not render any service to or from any point not a station on a rail line of the railways.
“3. No shipments shall be transported by applicant between any of the following points, or through, or to, or from, more than one of said points: New Orleans, Alexandria, and Shreveport, La., Tex-arkana, Tex.-Ark., Fort Worth-Dallas, (considered as one), Abilene, Monahans, and El Paso, Tex.
“4. All contractual arrangements between applicant and the railways shall be reported to us and shall be subject to revision if and as we find it to be necessary, in order that such arrangements shall be fair and equitable to the parties.
“5. Such further specific conditions as in the future we may find necessary to impose in order to insure that the service shall be auxiliary to, or supplemental of, the train service of the railways.”
The effect on appellee was to bar it from issuing its own bills of lading or performing all-motor service under all-motor local rates or all-motor joint rates with connecting motor carriers, or substituting rail service for motor service, and it could not be a party to such tariffs. Prior to these proceedings the appellee had issued its own bills of lading and participated in motor-carrier tariffs. The District Court found the value of the certificates, $65,000, would be destroyed and $240,000 annual revenue lost.
A petition for reconsideration of this order, and for oral argument before the entire Commission, was denied on May 9, 1949. Transport thereupon brought this suit in the Federal District Court, seeking to set aside the Commission’s orders of January 22, 1948, and May 9, 1949, and to enjoin their enforcement. In the District Court proceedings the Regular Common Carrier Conference of American Trucking Associations intervened on behalf of the Commission. After hearing, the District Court made findings of fact and conclusions of law, and entered a judgment setting aside the Commission’s orders, and permanently enjoining it from imposing any condition on Transport’s certificates “in such manner as will prohibit petitioner from:
“a. Filing, publishing and maintaining common carrier motor rates as provided by statute in the case of common carrier motor carriers generally;
“b. Interchanging traffic with other .common carrier motor carriers on joint motor rates;
“c. Issuing its own bills of lading and tendering its service to the public generally on its own contracts of shipment;
“d. Transporting traffic to, through, from or between any so-called ‘key points’ on that part of its route covered by interstate certificates of public convenience and necessity, to which no ‘key point’ restriction attached on issuance of such certificates,
or in such manner as will restrict petitioner to ship on rail rates or on railroad bills of lading.”
From this judgment the Commission and the intervenor, Common Carrier Conference, appeal here.
The District Court, 87 F. Supp. 107, 112, reasoned that the operations of Transport were at all times and in all ways auxiliary to and supplemental of the rail operations and therefore could not be restricted as attempted. The connotation of auxiliary and supplementary to the trial court was only a restriction limiting service to rail points. Without dealing specifically with the reservation to impose further conditions restricting the motor carrier’s service to coordinated rail service, the District Court decided that the Commission’s order restricting the service could not be valid in view of § 216, Transportation Act of 1940, 49 Stat. 558, 54 Stat. 924. That section allows motor common carriers to establish through routes, joint rates, practices and division of charges with other carriers by motor, rail or water. It held, too, that the Commission’s action was in essence a revocation in part of a certificate and unlawful except under conditions prescribed by § 212, 49 Stat. 555, 54 Stat. 924, and unconstitutional because confiscatory.
Transport here supports the soundness of the reasons given by the three-judge District Court for its injunction and supplements them by contentions that the Commission’s order was without support in the evidence and that Transport was not accorded due process of law at the hearing of October 17, 1944, 47 M. C. C. 753, 755. In view of our decision of today upholding the Commission in No. 25, United States v. Rock Island Motor Transit Co., ante, p. 419, all reasons for affirming the judgment below may be promptly rejected.
So far as the above issues relied upon by the District Court for its injunction are concerned, they seem to have been resolved in favor of the Government by our opinion in the Rock Island case. This proceeding involves certificates for new routes under § 207. No such certificates or applications were in that case. The opinion, however, considered the Commission’s practice in § 207 proceedings and stated that it was the same as in §§ 5 and 213 acquisition proceedings. We now hold that the .same considerations justify the reservation in issue here. See n. 2, supra.
Transport’s position that the order in question was without support in the evidence is based on the theory that as evidence was taken in the original applications that resulted in the necessary findings under §§ 213 of the Motor Carrier Act and 5 of the Transportation Act of 1940 for certificates to railroad motor carrier affiliates, changes in practices cannot now be made without evidence that the formerly permitted practices had been inconsistent with the public interest and did unduly restrain competition. American Trucking Associations, Inc. v. United States, 326 U. S. 77, 86, and Interstate Commerce Commission v. Louisville & Nashville R. Co., 227 U. S. 88, 91.
The Louisville & Nashville case required a full hearing and the privilege of introducing testimony before the road’s rates were set aside as unreasonable. The Commission was taking the position that the Hepburn Act allowed it to set aside rates after a “hearing” without evidence. The American Trucking case dealt with the issuance of a series of certificates by the Commission to a railroad-affiliated motor carrier after refusal to admit evidence of the flow of truck traffic between various localities along the parent railroad, and of the effect of the existing and prospective railroad-affiliated motor carriers on the over-the-road carriers. On appeal from an affirmance by a district court, we reversed the Commission.
This situation, however, differs from those referred to by Transport in that the Commission has reopened the proceedings, after they were started by Transport for an interpretation of its right to file and maintain a motor common-carrier tariff. Hearings were had in 1942 at Dallas, at which appellee’s witnesses gave testimony as to the freight interchange between appellee and other motor carriers and the existence of tariffs, etc. After the report of the Commission referred to on pp. 454-455, Transport and the Texas and Pacific Railway petitioned for reconsideration by the Commission, setting out the facts of their current operations, and addressing themselves particularly to the elimination of the prior or subsequent rail-haul condition. Thereafter the proceedings were reopened to determine what changes or modifications should be made. Another hearing was held, October 17, 1944, and report made. At that hearing Transport appeared but refused to introduce evidence. The examiner examined an official of Transport as to the nature and extent of Transport’s operations. This evidence developed the fact that Transport operated both on motor-carrier and rail rates under its own bills of lading in full competition with other motor carriers. Thus there appears in the record adequate evidence of the circumstances of Transport’s operations.
Upon the due-process point we approve the ruling of the Commission. It follows:
“Applicant argues that the notice setting the proceedings for further hearing did not inform it or the other parties of the nature of the issues to be met, or give them sufficient time to prepare to meet the issues; and that the hearing, in view of the request for its cancellation, was in the nature of an ex parte proceeding. We are not impressed with applicant’s argument that it was unable to foresee the issues. The notice in question stated that the further hearing was for the purpose of determining what changes, if any, should be made in the conditions, and thus placed the conditions themselves in issue. One of these is condition 5 or 5A, which in itself was adequate notice to applicant and the other parties that the primary purpose of the further hearing would be to determine, as provided for in that condition, whether it is necessary to change or modify the existing conditions or to add others so as effectively to restrict applicant’s operations to service which is auxiliary to or supplemental of rail service. Applicant was given the opportunity of presenting evidence to show that no need exists for a change in its present conditions; however, not only did it choose not to offer such evidence, but it objected to the receipt of any evidence with respect thereto. In the circumstances, the examiner properly denied its motion to discontinue the further hearing and to withdraw its witness, and properly overruled its objection to the adduction of testimony through such witness.”
The judgment of the three-judge District Court is reversed and the proceedings remanded with directions to dismiss the complaint.
Reversed.
Mr. Justice Black, Mr. Justice Douglas, Mr. Justice Jackson and Mr. Justice Burton dissent.
Sixteen proceedings are covered by I. C. C. docket number MC-50544, and various subnumbers, set out in Appendix A to Texas & Pacific Motor Transport Co. Common Carrier Application, 47 M. C. C. 753, 764. Transport was also operating under certain temporary authorities, Nos. MC-50544 (Sub-Nos. 21-TA, 24 — TA, and 30-TA), which expired before the issuance of the Commission’s orders under consideration here.
“5. Such further specific conditions as we, in the future, may find it necessary to impose in order to restrict applicant’s operation to service which is auxiliary to, or supplemental of, rail service.
“5A. The authority herein granted shall be subject to such further limitations or restrictions as the Commission may hereafter find it necessary to impose in order to restrict applicant’s operation to service which is auxiliary to, or supplemental of, train service of the railway, and in order to insure that the service rendered shall not unduly restrain competition.” 47 M. C. C. 753,766.
“1. The service to be performed by applicant shall be limited to service which is auxiliary to, or supplemental .of, rail service of the Texas and Pacific Railway, or in certain cases of its subsidiary rail lines, (or of Texas-New Mexico Railway Company) herein called the railway.” Ibid.
“2. Applicant shall not serve, or interchange traffic at any point not a station on a rail line of the railway.” Ibid.
“3. Shipments transported by applicant shall be limited to those which it receives from or delivers to the railway under a through bill of lading covering, in addition to movement by applicant, a prior or subsequent movement by rail.
“3A. Shipments transported by applicant shall be limited to those which it receives from or delivers to the railway under a through bill of lading covering in addition to movement by applicant, a prior or subsequent movement by rail, and those which it transports as parts of through shipments prior or subsequent to movement by rail under appropriate transit rules.” Ibid.
“3B. No shipments shall be transported by applicant as a common carrier by motor vehicle between any of the following points or through, or to, or from more than one of said points: Fort Worth, Tex., and Texarkana, Tex.-Ark.
“3C. No shipments shall be transported by applicant between any of the following points or through, or to, or from more than one of said points: El Paso and Pecos, Tex.” Ibid.
“4. All contractual arrangements between applicant and the railway shall be reported to us and shall be subject to revision, if and as we find it to be necessary in order that such arrangements shall be fair and suitable to the parties.” Ibid.
41 M. C. C. 721,726.
47 M. C. C. 753, 763-764.
47 M. C. C. 753, 754, and Rules 30, 107 (a) and 107 (b) of Supp. No. 5 to I. C. C. Tariff Circular No. 20. See 41 M. C. C. 721, 726, excerpted at note 19, No. 25, United States v. Rock Island Motor Transit Co., decided today, ante, p. 419.
“Thus, while the Commission might prescribe the points to be served, it could not forbid the participation in joint rates and through routes for the simple reason that such a provision would be inconsistent with the wording of Sec. 216 of the Act.” 87 F. Supp. 107, 112.
Several Commission decisions on the general necessity of evidence to support rulings are added. Greyhound Corporation—Control, 50 M. C. C. 237, 242; Scannell—Control, 50 M. C. C. 535, 541; C. & D. Motor Delivery Company — Purchase—Hubert C. Elliott, 38 M. C. C. 547, 553; Joint N. E. Motor Carrier Assn., Inc. v. Rose and Welloff, 43 M. C. C. 487, 488. None bear on such a situation as this. They relate to restrictions on the issue or transfer of certificates and revocation.
47 M. C. C. 753,756.
Question: What treatment did the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed?
A. stay, petition, or motion granted
B. affirmed
C. reversed
D. reversed and remanded
E. vacated and remanded
F. affirmed and reversed (or vacated) in part
G. affirmed and reversed (or vacated) in part and remanded
H. vacated
I. petition denied or appeal dismissed
J. modify
K. remand
L. unusual disposition
Answer:
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sc_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.
The AMERICAN LEGION, et al., Petitioners
v.
AMERICAN HUMANIST ASSOCIATION, et al.;
and
Maryland-National Capital Park and Planning Commission, Petitioner
v.
American Humanist Association, et al.
Nos. 17-1717
18-18
Supreme Court of the United States.
Argued February 27, 2019
Decided June 20, 2019
Neal K. Katyal, Washington, D.C., for the petitioner in No. 18-18.
Michael A. Carvin, Washington, D.C., for the petitioners in No. 17-1717.
Acting Solicitor General Jeffrey B. Wall for the United States as amicus curiae, by special leave of the Court, in support of the petitioners.
Monica L. Miller, Washington, D.C., for the respondents.
Kelly J. Shackelford, Hiram S. Sasser, III, Michael D. Berry, Kenneth A. Klukowski, Roger L. Byron, First Liberty Institute, Plano, TX, Michael A. Carvin, Christopher DiPompeo, Brett A. Swearingen, Kaytlin L. Roholt, Daniel D. Benson, Chris Pagliarella, Caleb P. Redmond, Admitted only in Georgia; supervised by listed D.C. bar members, Jones Day, Washington, DC, for petitioners The American Legion, The American Legion Department of Maryland, and The American Legion Colmar Manor Post 131, for the American Legion, Petitioners.
Adrian R. Gardner, William C. Dickerson, Tracey A. Harvin, Maryland-National, Capital Park and, Planning Commission, Riverdale, MD, Neal Kumar Katyal, Mitchell P. Reich, Benjamin A. Field, HOGAN LOVELLS US LLP, Washington, D.C., for petitioner Maryland-National Capital Park and Planning Commission.
Monica L. Miller, American Humanist Association, Washington, D.C., for respondents.
Justice ALITO announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II-B, II-C, III, and IV, and an opinion with respect to Parts II-A and II-D, in which THE CHIEF JUSTICE, Justice BREYER, and Justice KAVANAUGH join.
Since 1925, the Bladensburg Peace Cross (Cross) has stood as a tribute to 49 area soldiers who gave their lives in the First World War. Eighty-nine years after the dedication of the Cross, respondents filed this lawsuit, claiming that they are offended by the sight of the memorial on public land and that its presence there and the expenditure of public funds to maintain it violate the Establishment Clause of the First Amendment. To remedy this violation, they asked a federal court to order the relocation or demolition of the Cross or at least the removal of its arms. The Court of Appeals for the Fourth Circuit agreed that the memorial is unconstitutional and remanded for a determination of the proper remedy. We now reverse.
Although the cross has long been a preeminent Christian symbol, its use in the Bladensburg memorial has a special significance. After the First World War, the picture of row after row of plain white crosses marking the overseas graves of soldiers who had lost their lives in that horrible conflict was emblazoned on the minds of Americans at home, and the adoption of the cross as the Bladensburg memorial must be viewed in that historical context. For nearly a century, the Bladensburg Cross has expressed the community's grief at the loss of the young men who perished, its thanks for their sacrifice, and its dedication to the ideals for which they fought. It has become a prominent community landmark, and its removal or radical alteration at this date would be seen by many not as a neutral act but as the manifestation of "a hostility toward religion that has no place in our Establishment Clause traditions." Van Orden v. Perry , 545 U.S. 677, 704, 125 S.Ct. 2854, 162 L.Ed.2d 607 (2005) (BREYER, J., concurring in judgment). And contrary to respondents' intimations, there is no evidence of discriminatory intent in the selection of the design of the memorial or the decision of a Maryland commission to maintain it. The Religion Clauses of the Constitution aim to foster a society in which people of all beliefs can live together harmoniously, and the presence of the Bladensburg Cross on the land where it has stood for so many years is fully consistent with that aim.
I
A
The cross came into widespread use as a symbol of Christianity by the fourth century, and it retains that meaning today. But there are many contexts in which the symbol has also taken on a secular meaning. Indeed, there are instances in which its message is now almost entirely secular.
A cross appears as part of many registered trademarks held by businesses and secular organizations, including Blue Cross Blue Shield, the Bayer Group, and some Johnson & Johnson products. Many of these marks relate to health care, and it is likely that the association of the cross with healing had a religious origin. But the current use of these marks is indisputably secular.
The familiar symbol of the Red Cross-a red cross on a white background-shows how the meaning of a symbol that was originally religious can be transformed. The International Committee of the Red Cross (ICRC) selected that symbol in 1863 because it was thought to call to mind the flag of Switzerland, a country widely known for its neutrality. The Swiss flag consists of a white cross on a red background. In an effort to invoke the message associated with that flag, the ICRC copied its design with the colors inverted. Thus, the ICRC selected this symbol for an essentially secular reason, and the current secular message of the symbol is shown by its use today in nations with only tiny Christian populations. But the cross was originally chosen for the Swiss flag for religious reasons. So an image that began as an expression of faith was transformed.
The image used in the Bladensburg memorial-a plain Latin cross -also took on new meaning after World War I. "During and immediately after the war, the army marked soldiers' graves with temporary wooden crosses or Stars of David"-a departure from the prior practice of marking graves in American military cemeteries with uniform rectangular slabs. G. Piehler, Remembering War the American Way 101 (1995); App. 1146. The vast majority of these grave markers consisted of crosses, and thus when Americans saw photographs of these cemeteries, what struck them were rows and rows of plain white crosses. As a result, the image of a simple white cross "developed into a 'central symbol' " of the conflict. Ibid . Contemporary literature, poetry, and art reflected this powerful imagery. See Brief for Veterans of Foreign Wars of the United States et al. as Amici Curiae 10-16. Perhaps most famously, John McCrae's poem, In Flanders Fields, began with these memorable lines:
"In Flanders fields the poppies blowBetween the crosses, row on row."
In Flanders Fields and Other Poems 3 (G. P. Putnam's Sons ed. 1919). The poem was enormously popular. See P. Fussell, The Great War and Modern Memory 248-249 (1975). A 1921 New York Times article quoted a description of McCrae's composition as " 'the poem of the army' " and " 'of all those who understand the meaning of the great conflict.' " The image of "the crosses, row on row," stuck in people's minds, and even today for those who view World War I cemeteries in Europe, the image is arresting.
After the 1918 armistice, the War Department announced plans to replace the wooden crosses and Stars of David with uniform marble slabs like those previously used in American military cemeteries. App. 1146. But the public outcry against that proposal was swift and fierce. Many organizations, including the American War Mothers, a nonsectarian group founded in 1917, urged the Department to retain the design of the temporary markers. Id. , at 1146-1147. When the American Battle Monuments Commission took over the project of designing the headstones, it responded to this public sentiment by opting to replace the wooden crosses and Stars of David with marble versions of those symbols. Id. , at 1144. A Member of Congress likewise introduced a resolution noting that "these wooden symbols have, during and since the World War, been regarded as emblematic of the great sacrifices which that war entailed, have been so treated by poets and artists and have become peculiarly and inseparably associated in the thought of surviving relatives and comrades and of the Nation with these World War graves." H. Res. 15, 68th Cong., 1 (1924), App. 1163-1164. This national debate and its outcome confirmed the cross's widespread resonance as a symbol of sacrifice in the war.
B
Recognition of the cross's symbolism extended to local communities across the country. In late 1918, residents of Prince George's County, Maryland, formed a committee for the purpose of erecting a memorial for the county's fallen soldiers. App. 988-989, 1014. Among the committee's members were the mothers of 10 deceased soldiers. Id., at 989. The committee decided that the memorial should be a cross and hired sculptor and architect John Joseph Earley to design it. Although we do not know precisely why the committee chose the cross, it is unsurprising that the committee-and many others commemorating World War I -adopted a symbol so widely associated with that wrenching event.
After selecting the design, the committee turned to the task of financing the project. The committee held fundraising events in the community and invited donations, no matter the size, with a form that read:
"We, the citizens of Maryland, trusting in God, the Supreme Ruler of the Universe, Pledge Faith in our Brothers who gave their all in the World War to make [the] World Safe for Democracy. Their Mortal Bodies have turned to dust, but their spirit Lives to guide us through Life in the way of Godliness, Justice and Liberty.
"With our Motto, 'One God, One Country, and One Flag' We contribute to this Memorial Cross Commemorating the Memory of those who have not Died in Vain." Id ., at. 1251.
Many of those who responded were local residents who gave small amounts: Donations of 25 cents to 1 dollar were the most common. Id. , at 1014. Local businesses and political leaders assisted in this effort. Id., at 1014, 1243. In writing to thank United States Senator John Walter Smith for his donation, committee treasurer Mrs. Martin Redman explained that "[t]he chief reason I feel as deeply in this matter [is that], my son, [Wm.] F. Redman, lost his life in France and because of that I feel that our memorial cross is, in a way, his grave stone." Id. , at 1244.
The Cross was to stand at the terminus of another World War I memorial-the National Defense Highway, which connects Washington to Annapolis. The community gathered for a joint groundbreaking ceremony for both memorials on September 28, 1919; the mother of the first Prince George's County resident killed in France broke ground for the Cross. Id. , at 910. By 1922, however, the committee had run out of funds, and progress on the Cross had stalled. The local post of the American Legion took over the project, and the monument was finished in 1925.
The completed monument is a 32-foot tall Latin cross that sits on a large pedestal. The American Legion's emblem is displayed at its center, and the words "Valor," "Endurance," "Courage," and "Devotion" are inscribed at its base, one on each of the four faces. The pedestal also features a 9- by 2.5-foot bronze plaque explaining that the monument is "Dedicated to the heroes of Prince George's County, Maryland who lost their lives in the Great War for the liberty of the world." Id ., at 915 (capitalization omitted). The plaque lists the names of 49 local men, both Black and White, who died in the war. It identifies the dates of American involvement, and quotes President Woodrow Wilson's request for a declaration of war: "The right is more precious than peace. We shall fight for the things we have always carried nearest our hearts. To such a task we dedicate our lives." Ibid .
At the dedication ceremony, a local Catholic priest offered an invocation. Id., at 217-218. United States Representative Stephen W. Gambrill delivered the keynote address, honoring the " 'men of Prince George's County' " who " 'fought for the sacred right of all to live in peace and security.' " Id ., at 1372. He encouraged the community to look to the " 'token of this cross, symbolic of Calvary,' " to " 'keep fresh the memory of our boys who died for a righteous cause.' " Ibid. The ceremony closed with a benediction offered by a Baptist pastor.
Since its dedication, the Cross has served as the site of patriotic events honoring veterans, including gatherings on Veterans Day, Memorial Day, and Independence Day. Like the dedication itself, these events have typically included an invocation, a keynote speaker, and a benediction. Id. , at 182, 319-323. Over the years, memorials honoring the veterans of other conflicts have been added to the surrounding area, which is now known as Veterans Memorial Park. These include a World War II Honor Scroll; a Pearl Harbor memorial; a Korea-Vietnam veterans memorial; a September 11 garden; a War of 1812 memorial; and two recently added 38-foot-tall markers depicting British and American soldiers in the Battle of Bladensburg.
Id. , at 891-903, 1530. Because the Cross is located on a traffic island with limited space, the closest of these other monuments is about 200 feet away in a park across the road. Id. , at 36, 44.
As the area around the Cross developed, the monument came to be at the center of a busy intersection. In 1961, the Maryland-National Capital Park and Planning Commission (Commission) acquired the Cross and the land on which it sits in order to preserve the monument and address traffic-safety concerns. Id. , at 420-421, 1384-1387. The American Legion reserved the right to continue using the memorial to host a variety of ceremonies, including events in memory of departed veterans. Id. , at 1387. Over the next five decades, the Commission spent approximately $ 117,000 to maintain and preserve the monument. In 2008, it budgeted an additional $ 100,000 for renovations and repairs to the Cross.
C
In 2012, nearly 90 years after the Cross was dedicated and more than 50 years after the Commission acquired it, the American Humanist Association (AHA) lodged a complaint with the Commission. The complaint alleged that the Cross's presence on public land and the Commission's maintenance of the memorial violate the Establishment Clause of the First Amendment. Id., at 1443-1451. The AHA, along with three residents of Washington, D. C., and Maryland, also sued the Commission in the District Court for the District of Maryland, making the same claim. The AHA sought declaratory and injunctive relief requiring "removal or demolition of the Cross, or removal of the arms from the Cross to form a non-religious slab or obelisk." 874 F.3d 195, 202, n. 7 (C.A.4 2017) (internal quotation marks omitted). The American Legion intervened to defend the Cross.
The District Court granted summary judgment for the Commission and the American Legion. The Cross, the District Court held, satisfies both the three-pronged test announced in Lemon v. Kurtzman, 403 U. S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), and the analysis applied by Justice BREYER in upholding the Ten Commandments monument at issue in Van Orden v. Perry , 545 U.S. 677, 125 S.Ct. 2854, 162 L.Ed.2d 607. Under the Lemon test, a court must ask whether a challenged government action (1) has a secular purpose; (2) has a "principal or primary effect" that "neither advances nor inhibits religion"; and (3) does not foster "an excessive government entanglement with religion," 403 U. S., at 612-613, 91 S.Ct. 2105 (internal quotation marks omitted). Applying that test, the District Court determined that the Commission had secular purposes for acquiring and maintaining the Cross-namely, to commemorate World War I and to ensure traffic safety. The court also found that a reasonable observer aware of the Cross's history, setting, and secular elements "would not view the Monument as having the effect of impermissibly endorsing religion." 147 F.Supp.3d 373, 387 (D.Md. 2015). Nor, according to the court, did the Commission's maintenance of the memorial create the kind of "continued and repeated government involvement with religion" that would constitute an excessive entanglement. Ibid. (internal quotation marks and emphasis omitted). Finally, in light of the factors that informed its analysis of Lemon 's "effects" prong, the court concluded that the Cross is constitutional under Justice BREYER's approach in Van Orden. 147 F.Supp.3d at 388-390.
A divided panel of the Court of Appeals for the Fourth Circuit reversed. The majority relied primarily on the Lemon test but also took cognizance of Justice BREYER's Van Orden concurrence. While recognizing that the Commission acted for a secular purpose, the court held that the Bladensburg Cross failed Lemon 's "effects" prong because a reasonable observer would view the Commission's ownership and maintenance of the monument as an endorsement of Christianity. The court emphasized the cross's "inherent religious meaning" as the " 'preeminent symbol of Christianity.' " 874 F.3d at 206-207. Although conceding that the monument had several "secular elements," the court asserted that they were "overshadow[ed]" by the Cross's size and Christian connection-especially because the Cross's location and condition would make it difficult for "passers-by" to "read" or otherwise "examine" the plaque and American Legion emblem. Id., at 209-210. The court rejected as "too simplistic" an argument defending the Cross's constitutionality on the basis of its 90-year history, suggesting that "[p]erhaps the longer a violation persists, the greater the affront to those offended." Id., at 208. In the alternative, the court concluded, the Commission had become excessively entangled with religion by keeping a display that "aggrandizes the Latin cross" and by spending more than de minimis public funds to maintain it. Id., at 211-212.
Chief Judge Gregory dissented in relevant part, contending that the majority misapplied the "effects" test by failing to give adequate consideration to the Cross's "physical setting, history, and usage." Id., at 218 (opinion concurring in part and dissenting in part). He also disputed the majority's excessive-entanglement analysis, noting that the Commission's maintenance of the Cross was not the kind of "comprehensive, discriminating, and continuing state surveillance" of religion that Lemon was concerned to rule out. 874 F.3d at 221 (internal quotation marks omitted).
The Fourth Circuit denied rehearing en banc over dissents by Chief Judge Gregory, Judge Wilkinson, and Judge Niemeyer. 891 F.3d 117 (2018). The Commission and the American Legion each petitioned for certiorari. We granted the petitions and consolidated them for argument. 586 U. S. ---- (2016).
II
A
The Establishment Clause of the First Amendment provides that "Congress shall make no law respecting an establishment of religion." While the concept of a formally established church is straightforward, pinning down the meaning of a "law respecting an establishment of religion" has proved to be a vexing problem. Prior to the Court's decision in Everson v. Board of Ed. of Ewing , 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947), the Establishment Clause was applied only to the Federal Government, and few cases involving this provision came before the Court. After Everson recognized the incorporation of the Clause, however, the Court faced a steady stream of difficult and controversial Establishment Clause issues, ranging from Bible reading and prayer in the public schools, Engel v. Vitale , 370 U.S. 421, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962) ; School Dist. of Abington Township v. Schempp , 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963), to Sunday closing laws, McGowan v. Maryland , 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961), to state subsidies for church-related schools or the parents of students attending those schools, Board of Ed. of Central School Dist. No. 1 v. Allen , 392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed.2d 1060 (1968) ; Everson, supra. After grappling with such cases for more than 20 years, Lemon ambitiously attempted to distill from the Court's existing case law a test that would bring order and predictability to Establishment Clause decisionmaking. That test, as noted, called on courts to examine the purposes and effects of a challenged government action, as well as any entanglement with religion that it might entail. Lemon , 403 U. S., at 612-613, 91 S.Ct. 2105. The Court later elaborated that the "effect[s]" of a challenged action should be assessed by asking whether a "reasonable observer" would conclude that the action constituted an "endorsement" of religion. County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter , 492 U.S. 573, 592, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989) ; id., at 630, 109 S.Ct. 3086 (O'Connor, J., concurring in part and concurring in judgment).
If the Lemon Court thought that its test would provide a framework for all future Establishment Clause decisions, its expectation has not been met. In many cases, this Court has either expressly declined to apply the test or has simply ignored it. See Zobrest v. Catalina Foothills School Dist. , 509 U.S. 1, 113 S.Ct. 2462, 125 L.Ed.2d 1 (1993) ; Board of Ed. of Kiryas Joel Village School Dist. v. Grumet , 512 U.S. 687, 114 S.Ct. 2481, 129 L.Ed.2d 546 (1994) ; Rosenberger v. Rector and Visitors of Univ. of Va. , 515 U.S. 819, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995) ; Capitol Square Review and Advisory Bd. v. Pinette , 515 U.S. 753, 115 S.Ct. 2440, 132 L.Ed.2d 650 (1995) ; Good News Club v. Milford Central School , 533 U.S. 98, 121 S.Ct. 2093, 150 L.Ed.2d 151 (2001) ; Zelman v. Simmons-Harris , 536 U.S. 639, 122 S.Ct. 2460, 153 L.Ed.2d 604 (2002) ; Cutter v. Wilkinson , 544 U.S. 709, 125 S.Ct. 2113, 161 L.Ed.2d 1020 (2005) ; Van Orden , 545 U.S. 677, 125 S.Ct. 2854, 162 L.Ed.2d 607 ; Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC , 565 U.S. 171, 132 S.Ct. 694, 181 L.Ed.2d 650 (2012) ; Town of Greece v. Galloway , 572 U.S. 565, 134 S.Ct. 1811, 188 L.Ed.2d 835 (2014) ; Trump v. Hawaii , 585 U. S. ----, 138 S.Ct. 2392, 201 L.Ed.2d 775(2018).
This pattern is a testament to the Lemon test's shortcomings. As Establishment Clause cases involving a great array of laws and practices came to the Court, it became more and more apparent that the Lemon test could not resolve them. It could not "explain the Establishment Clause's tolerance, for example, of the prayers that open legislative meetings, ... certain references to, and invocations of, the Deity in the public words of public officials; the public references to God on coins, decrees, and buildings; or the attention paid to the religious objectives of certain holidays, including Thanksgiving." Van Orden , supra , at 699, 125 S.Ct. 2854 (opinion of BREYER, J.). The test has been harshly criticized by Members of this Court, lamented by lower court judges, and questioned by a diverse roster of scholars.
For at least four reasons, the Lemon test presents particularly daunting problems in cases, including the one now before us, that involve the use, for ceremonial, celebratory, or commemorative purposes, of words or symbols with religious associations. Together, these considerations counsel against efforts to evaluate such cases under Lemon and toward application of a presumption of constitutionality for longstanding monuments, symbols, and practices.
B
First , these cases often concern monuments, symbols, or practices that were first established long ago, and in such cases, identifying their original purpose or purposes may be especially difficult. In Salazar v. Buono , 559 U.S. 700, 130 S.Ct. 1803, 176 L.Ed.2d 634 (2010), for example, we dealt with a cross that a small group of World War I veterans had put up at a remote spot in the Mojave Desert more than seven decades earlier. The record contained virtually no direct evidence regarding the specific motivations of these men. We knew that they had selected a plain white cross, and there was some evidence that the man who looked after the monument for many years-"a miner who had served as a medic and had thus presumably witnessed the carnage of the war firsthand"-was said not to have been "particularly religious." Id ., at 724, 130 S.Ct. 1803 (ALITO, J., concurring in part and concurring in judgment).
Without better evidence about the purpose of the monument, different Justices drew different inferences. The plurality thought that this particular cross was meant "to commemorate American servicemen who had died in World War I" and was not intended "to promote a Christian message." Id., at 715, 130 S.Ct. 1803. The dissent, by contrast, "presume[d]" that the cross's purpose "was a Christian one, at least in part, for the simple reason that those who erected the cross chose to commemorate American veterans in an explicitly Christian manner." Id., at 752, 130 S.Ct. 1803 (opinion of Stevens, J.). The truth is that 70 years after the fact, there was no way to be certain about the motivations of the men who were responsible for the creation of the monument. And this is often the case with old monuments, symbols, and practices. Yet it would be inappropriate for courts to compel their removal or termination based on supposition.
Second , as time goes by, the purposes associated with an established monument, symbol, or practice often multiply. Take the example of Ten Commandments monuments, the subject we addressed in Van Orden, 545 U.S. 677, 125 S.Ct. 2854, 162 L.Ed.2d 607, and McCreary County v. American Civil Liberties Union of Ky. , 545 U.S. 844, 125 S.Ct. 2722, 162 L.Ed.2d 729 (2005). For believing Jews and Christians, the Ten Commandments are the word of God handed down to Moses on Mount Sinai, but the image of the Ten Commandments has also been used to convey other meanings. They have historical significance as one of the foundations of our legal system, and for largely that reason, they are depicted in the marble frieze in our courtroom and in other prominent public buildings in our Nation's capital. See Van Orden , supra , at 688-690, 125 S.Ct. 2854. In Van Orden and McCreary , no Member of the Court thought that these depictions are unconstitutional. 545 U.S. at 688-690, 125 S.Ct. 2854 ; id. , at 701, 125 S.Ct. 2854 (opinion of BREYER, J.); id., at 740, 125 S.Ct. 2854 (Souter, J., dissenting).
Just as depictions of the Ten Commandments in these public buildings were intended to serve secular purposes, the litigation in Van Orden and McCreary showed that secular motivations played a part in the proliferation of Ten Commandments monuments in the 1950s. In 1946, Minnesota Judge E. J. Ruegemer proposed that the Ten Commandments be widely disseminated as a way of combating juvenile delinquency. With this prompting, the Fraternal Order of the Eagles began distributing paper copies of the Ten Commandments to churches, school groups, courts, and government offices. The Eagles, "while interested in the religious aspect of the Ten Commandments, sought to highlight the Commandments' role in shaping civic morality." Van Orden , supra , at 701, 125 S.Ct. 2854 (opinion of BREYER, J.). At the same time, Cecil B. DeMille was filming The Ten Commandments. He learned of Judge Ruegemer's campaign, and the two collaborated, deciding that the Commandments should be carved on stone tablets and that DeMille would make arrangements with the Eagles to help pay for them, thus simultaneously promoting his film and public awareness of the Decalogue. Not only did DeMille and Judge Ruegemer have different purposes, but the motivations of those who accepted the monuments and those responsible for maintaining them may also have differed. As we noted in Pleasant Grove City v. Summum , 555 U.S. 460, 476, 129 S.Ct. 1125, 172 L.Ed.2d 853 (2009), "the thoughts or sentiments expressed by a government entity that accepts and displays [a monument] may be quite different from those of either its creator or its donor."
The existence of multiple purposes is not exclusive to longstanding monuments, symbols, or practices, but this phenomenon is more likely to occur in such cases. Even if the original purpose of a monument was infused with religion, the passage of time may obscure that sentiment. As our society becomes more and more religiously diverse, a community may preserve such monuments, symbols, and practices for the sake of their historical significance or their place in a common cultural heritage. Cf. Schempp , 374 U.S. at 264-265, 83 S.Ct. 1560 (Brennan, J., concurring) ("[The] government may originally have decreed a Sunday day of rest for the impermissible purpose of supporting religion but abandoned that purpose and retained the laws for the permissible purpose of furthering overwhelmingly secular ends").
Third, just as the purpose for maintaining a monument, symbol, or practice may evolve, "[t]he 'message' conveyed ... may change over time." Summum , 555 U.S. at 477, 129 S.Ct. 1125. Consider, for example, the message of the Statue of Liberty, which began as a monument to the solidarity and friendship between France and the United States and only decades later came to be seen "as a beacon welcoming immigrants to a land of freedom." Ibid.
With sufficient time, religiously expressive monuments, symbols, and practices can become embedded features of a community's landscape and identity. The community may come to value them without necessarily embracing their religious roots. The recent tragic fire at Notre Dame in Paris provides a striking example. Although the French Republic rigorously enforces a secular public square, the cathedral remains a symbol of national importance to the religious and nonreligious alike. Notre Dame is fundamentally a place of worship and retains great religious importance, but its meaning has broadened. For many, it is inextricably linked with the very idea of Paris and France. Speaking to the nation shortly after the fire, President Macron said that Notre Dame " 'is our history, our literature, our imagination. The place where we survived epidemics, wars, liberation. It has been the epicenter of our lives.' "
In the same way, consider the many cities and towns across the United States that bear religious names. Religion undoubtedly motivated those who named Bethlehem, Pennsylvania; Las Cruces, New Mexico; Providence, Rhode Island; Corpus Christi, Texas; Nephi, Utah, and the countless other places in our country with names that are rooted in religion. Yet few would argue that this history requires that these names be erased from the map. Or take a motto like Arizona's, "Ditat Deus " ("God enriches"), which was adopted in 1864, or a flag like Maryland's, which has included two crosses since 1904. Familiarity itself can become a reason for preservation.
Fourth , when time's passage imbues a religiously
Question: Did administrative action occur in the context of the case?
A. No
B. Yes
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.
Garland FIELDS, Appellant, v. UNITED STATES of America, Appellee.
No. 10684.
United States Court of Appeals Fourth Circuit.
Argued Dec. 5, 1966.
Decided Jan. 5, 1967.
Alexander L. Wilson, Arlington, Va. (Court-appointed counsel) for appellant.
Stefan C. Long, Asst. U. S. Atty. (C. V. Spratley, Jr., U. S. Atty., on the brief) for appellee.
Before HAYNSWORTH, Chief Judge, and BOREMAN and WINTER, Circuit Judges.
PER CURIAM:
Convicted, in a trial without a jury, of the offenses of selling narcotics not in pursuance of a written order on a form issued in blank for that purpose by the Secretary of the Treasury and selling narcotics not in the original stamped package, in violation of 26 U.S.C.A. §§ 4705(a) and 4704(a), and sentenced to consecutive terms of eight and two years, respectively, appellant appeals. He alleges as fatal to his conviction denial of a speedy trial, failure to sever, failure to grant a mistrial when a codefendant allegedly essential to appellant’s defense refused to testify, and improper conduct on the part of the trial judge in examining witnesses and erroneously summarizing previous testimony of other witnesses. We find no merit in any contention, and we affirm.
The alleged denial of a speedy trial is predicated on the following facts: The offenses allegedly occurred May 19-20, 1965. A complaint was filed with the United States Commissioner on September 21, 1965 and appellant was arrested that day. At a hearing on September 30, 1965, probable cause was found and appellant was admitted to bail. Because a co-defendant was at large and the grand jury was not in session, an indictment was not returned until December 8, 1965. On December 16, 1965 and January 10, 1966, appellant appeared for arraignment without counsel. Counsel was then appointed by the Court and appellant pleaded not guilty on January 12,1966, waived a jury trial and the date of April 11, 1966 was fixed for trial. The trial was held as scheduled.
True, eleven months elapsed between the date of the alleged offenses and the actual trial, of which eight months was between arrest and trial, but the record fails to disclose a single instance in which appellant was prejudiced by any delay. At all times he was unrestrained, and his freedom to develop witnesses, testimony and matters of defense unhampered. The record reflects no request on his part that he be tried at any earlier date. We find no circumstances amounting to an unconstitutional deprivation of the right to a speedy trial. Pollard v. United States, 352 U.S. 354, 77 S.Ct. 481, 1 L.Ed.2d 393 (1957); United States v. Hill, 310 F.2d 601 (4 Cir. 1962).
The alleged improper failure to grant a severance is grounded upon the fact that a codefendant, Corbin, elected to testify in his defense, while appellant did not. Prior to Corbin’s testimony, the government’s case consisted of the testimony of a narcotics agent who purportedly met appellant and his codefendants twice during the days in question and, for $300.00, purchased from them certain narcotics not in or from original stamped packages and not in pursuance of a written order on the form provided by the Secretary of the Treasury, and that of another agent, who testified only that the first agent and the several defendants were seen together at the times and at the places described by the first. Cor-bin’s testimony corroborated the association of the agent and the defendants at the times and places previously testified to, but constituted a denial that Corbin was aware of the nature of the transaction or that the materials delivered to the agent, for which he paid $300.00, were various narcotics. Appellant's counsel at no time, before, during or after Corbin’s testimony, requested a severance for his client.
In a proper case the failure of appellant’s counsel to request a severance would not foreclose our noticing and correcting plain error in the record. Rule 52(b) Fed.Rules Crim.P. But appellant’s claim that he was entitled to a severance on the record in this case is a bald assertion that codefendants may not be tried jointly when one or more of them elects to testify in his own behalf. Cor-bin made no attempt to incriminate appellant, other than to confirm his presence when the alleged illegal action was formulated and carried out. Under these circumstances, we perceive no such rule as that for which appellant contends. We disagree with appellant’s argument that he could not have been convicted on the testimony of the agent alone, because we are not aware of any rule which requires corroboration of the agent’s testimony. Indeed, the district court’s findings of fact with respect to appellant’s guilt indicate that the court relied on the testimony of the agent, uncorroborated by that of Corbin; the district court, in finding Corbin also guilty, rejected the exculpatory aspects of his testimony.
There is no merit in the contention that appellant should have been granted a mistrial when the codefendant, Breed-en, who changed his plea to one count of the indictment from not guilty to guilty four days before the trial, refused to testify. Breeden did in fact testify in regard to an aspect of appellant’s defense, albeit, unfavorably. Breeden was called as a witness by counsel for Corbin for the limited purpose of identifying and explaining a letter, which he admitted he wrote, purportedly exculpating appellant and Coibin. Prior to his being called, and düring the course of his limited examination, counsel for Corbin twice asked that Breeden be made a witness for the court, and counsel for appellant raised no objection if, indeed, some of his remarks might not be construed as joining in the request. During his limited examination, Breeden testified that he was unable to say that a statement in his letter that Corbin and appellant had nothing to do with the “actual sale” referred to the sale for which appellant was prosecuted. Later, when made a witness for the court, and asked to describe in his own words what took place on May 19-20, Breeden, although instructed by the court and his counsel to answer, refused to testify further. Again, before, during and after Breeden’s testimony, appellant’s counsel did not request a mistrial.
Although we can notice plain error, we find none in the failure to grant a mistrial. That a witness testifies unfavorably, or even that his testimony is different from that which is anticipated, does not indicate the necessity for such relief in the circumstances reflected by this record.
There was no improper conduct on the part of the trial judge in examining witnesses, and there were no errors of any consequence in his summarization of previous testimony of other witnesses. In regard to this contention, we have reviewed the record thoroughly.-- To the extent that the trial judge erroneously summarized previous testimony of other witnesses, he was, in most part, corrected by counsel, the witnesses themselves, or by his asking further questions. Nothing in the district judge’s finding of facts in which he found appellant guilty discloses any misunderstanding of any essential fact. His exercise of his right to interrogate witnesses, in this non-jury case, was nothing more than an effort on his part to clarify his own understanding of the case and to elicit potentially material facts not inquired into by any of counsel. His calling Breeden as a court witness was in response to the twice repeated request of counsel for one of the codefendants, and in the face of the announced refusal of the prosecution to call him and the announced reluctance of counsel for any defendant to call him. The trial judge’s admonitions to Breeden that he must testify and that he must tell the truth, under penalty of perjury if he did otherwise, appear to be no more than a conscientious effort to carry into effect the advice given by the court, and concurred in by Breeden’s counsel, that Breeden could not claim self-incrimination in the area inquired into. In short, the conduct of the trial judge did not exceed the proper bounds of his function, as set forth by us in United States v. Godel, 361 F.2d 21 (4 Cir. 1966), and Simon v. United States, 123 F.2d 80 (4 Cir. 1941), cert. den. 314 U.S. 694, 62 S.Ct. 412, 86 L.Ed. 555 (1941).
The judgment of the lower court is
Affirmed.
Question: What is the total number of respondents in the case that fall into the category "private business and its executives"? Answer with a number.
Answer:
|
songer_interven
|
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 one or more individuals or groups sought to formally intervene in the appeals court consideration of the case.
UNITED STATES of America ex rel. Alex BIRNBAUM, Appellant, v. Edward J. DOLAN et al.
No. 19406.
United States Court of Appeals, Third Circuit.
Submitted Nov. 8, 1971.
Decided Dec. 21, 1971.
Alex Birnbaum, pro se.
Lewis N. White, III, Asst. Prosecutor, New Brunswick, N. J. (John S. Kuhlthau, Prosecutor, Middlesex County, New Brunswick, N. J., on the brief), for Edward J. Dolan.
John S. Fitzpatrick, Deputy Atty. Gen., Trenton, N. J. (George F. Kugler, Jr., Atty. Gen. of N. J., Stephen Skillman, Asst. Atty. Gen., Trenton, N. J., on the brief), for Dale G. Cordy.
Before VAN DUSEN and ROSEN, Circuit Judges and LAYTON, Senior District Judge.
OPINION OF THE COURT
PER CURIAM:
Appellant has appealed from the Order of the District Court dismissing his civil rights complaint as demonstratively frivolous and insufficient on its face.
In January of 1967, an assault and battery, and a robbery occurred in Jamesburg, New Jersey. On March 20, 1969, a robbery occurred in Point Pleasant, New Jersey. Birnbaum was arrested in connection with the Point Pleasant robbery. Detective Cordy of the New Jersey State Police interviewed Birnbaum at his place of confinement because there were similarities between the crimes. At the August 28, 1969, interview, Birnbaum said he would appear at a lineup if counsel were provided. At the September 4, 1969, lineup, Birnbaum was identified as the perpetrator of the February offenses. Birnbaum claims that the lineup was unconstitutional. Defendant Dolan, the county prosecutor, handled the resulting litigation for the government.
On January 12, 1971, the New Jersey Superior Court granted a motion dismissing the charges of atrocious assault and battery, which took place in January, 1967. On January 13, 1971, the same court ruled that the lineup identification was inadmissible against Birnbaum in any state criminal proceeding. Birnbaum was acquitted of the January 1967 charges two days later. During this entire period, he was incarcerated in connection with the March robbery.
Birnbaum brought a civil rights action on October 20, 1970, based on 42 U. S.C. § 1983 in the District Court against Dolan and Cordy for damages due to his being subjected to an unusually long confinement prior to trial and an improper lineup. The complaint was dismissed in November of 1970 because it was not only too general, but also because it sought to enjoin a state criminal prosecution. Birnbaum has filed a timely appeal.
Section 1983 actions are often brought by persons who have had little or no legal assistance in preparing their petitions, but who may be suffering from the infringement of an important civil right, with the result that such complaints are liberally construed by reviewing courts. At some point, however, a complaint may be so vague that, despite a liberal reading, it must be dismissed for failure to state a claim upon which relief could be granted.
First, appellant claimed that he wanted his trial transferred to federal court because the slow pace of the state prosecution was depriving him of his right to a speedy trial. The enjoining of a criminal proceeding in a state court is an extreme measure designed only for those rare situations in which irreparable injury would result to the defendant. The language of 28 U.S.C. § 2283 clearly intends that an injunction to stay criminal proceedings in a state court would be rarely issued by a federal court. Only last term, the Supreme Court reaffirmed that concept when it held that only under extraordinary circumstances where the likelihood of irreparable loss to the defendant is both great and immediate, and he is unable to defend himself in one prosecution, should a federal court enjoin a pending state criminal prosecution. Appellant has not alleged bad faith either in his arrest or the manner of the prosecution of his case. It follows that appellant has not set forth sufficient reasons which might have justified his request for enjoining the state criminal action, and the District Court properly denied such a request.
Second, appellant claims that defendants’ actions in furtherance of the prosecution of his case gave rise to damages compensable under Section 1983. This contention is without merit in the instant case. State officers, such as defendant Dolan, acting in good faith in the pursuance of their official duties, are shielded from Section 1983 damage suits, as long as their actions are not clearly outside their jurisdictions. Therefore, appellant’s second contention must be dismissed.
Third, appellant argues that because he was subjected to illegal lineup, he should be compensated in damages. However, since the lineup identifications were not used against him, and we are presented actually with the question whether an abstract violation of a constitutional right which has no harmful consequences to the defendant entitles him to money damages under Section 1983, there is no merit to this argument.
In the light of the foregoing, the decision of the District Court will be affirmed.
. In Negrich v. Hohn, 379 F.2d 213, 215 (3rd Cir. 1967), while determining that a pro-se complaint would be dismissed, the Court held that “The complaint is insufficient because it is broad and conclusory. Its insufficiency lies in its failure to state facts in support of its conclusions.”
. Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). Appellant has not attempted to set forth special fact situations which might prove bad faith on the part of the prosecution, as a possible basis for assessment of damages. See, Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965). Also, we cannot overlook the termination of the charges against plaintiff arising from the 1967 occurrences making moot much of the relief sought. See Caldwell v. Craighead, 432 F.2d 213, 218 (6th Cir. 1970).
. Pierson v. Kay, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967) ; Bauers v. Heisel, 361 F.2d 581 (3rd Cir. 1966).
. Negrich v. Hohn, 246 F.Supp. 173 (W.D.Penn.1965), aff’d, 379 F.2d 213 (3rd Cir. 1967).
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_appel1_7_5
|
B
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine which of these categories best describes the income of the litigant. Consider the following categories: "not ascertained", "poor + wards of state" (e.g., patients at state mental hospital; not prisoner unless specific indication that poor), "presumed poor" (e.g., migrant farm worker), "presumed wealthy" (e.g., high status job - like medical doctors, executives of corporations that are national in scope, professional athletes in the NBA or NFL; upper 1/5 of income bracket), "clear indication of wealth in opinion", "other - above poverty line but not clearly wealthy" (e.g., public school teachers, federal government employees)." Note that "poor" means below the federal poverty line; e.g., welfare or food stamp recipients. There must be some specific indication in the opinion that you can point to before anyone is classified anything other than "not ascertained". Prisoners filing "pro se" were classified as poor, but litigants in civil cases who proceed pro se were not presumed to be poor. Wealth obtained from the crime at issue in a criminal case was not counted when determining the wealth of the criminal defendant (e.g., drug dealers).
Samuel Obediah MILLER, Petitioner-Appellant, v. The UNITED STATES ARMY, Respondent-Appellee.
No. 679-70.
United States Court of Appeals, Tenth Circuit.
March 27, 1972.
Samuel Obediah Miller, pro se.
Robert J. Roth, U. S. Atty., and Richard L. Meyer, Asst. U. S. Atty., submitted on brief, for respondent-appellee.
Before BREITENSTEIN and McWILLIAMS, Circuit Judges, and KERR, District Judge.
PER CURIAM.
The opinion filed herein on August 27, 1971, was withdrawn on August 30, 1971, to avoid possible inconsistency with Polsky v. Wetherill, 10 Cir., 438 F.2d 132.
Petitioner-appellant, who voluntarily enlisted in the armed forces, sought release therefrom as a conscientious objector. Release was denied and he brought habeas corpus. In reliance on Noyd v. McNamara, 10 Cir., 378 F.2d 538, cert. denied 389 U.S. 1022, 88 S.Ct. 593, 19 L.Ed.2d 667, the district court dismissed the petition because petitioner had not exhausted available military remedies, including the court martial process. In Polsky we reaffirmed the rule stated in Noyd v. McNamara. The Supreme Court vacated our judgment and remanded the case for further consideration, Polsky v. Wetherill, 403 U.S. 916, 91 S.Ct. 2232, 29 L.Ed.2d 693. Thereafter, the court of appeals en banc considered Polsky on its merits and directed that the writ issue. See opinion filed on March 2, 1972, in 10 Cir., 455 F.2d 960.
Noyd v. McNamara no longer has any vitality. The appellant in the case at bar is entitled to consideration of his claim on the merits. Accordingly, the judgment is reversed and the case is remanded for trial on the merits.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Which of these categories best describes the income of the litigant?
A. not ascertained
B. poor + wards of state
C. presumed poor
D. presumed wealthy
E. clear indication of wealth in opinion
F. other - above poverty line but not clearly wealthy
Answer:
|
songer_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.
Juan Avalos GUEVARA, Jr., Appellant, v. UNITED STATES of America, Appellee.
No. 16364.
United States Court of Appeals Fifth Circuit.
March 28, 1957.
Joseph A. Calamia, El Paso, Tex., for appellant.
Wm. Monroe Kerr, Asst. U. S. Atty., El Paso, Tex., Russell B. Wine, U. S. Atty., San Antonio, Tex., Holvey Williams, Asst. U. S. Atty., El Paso, Tex., for appellee.
Before HUTCHESON, Chief Judge, and RIVES and BROWN, Circuit Judges.
RIVES, Circuit Judge.
Appellant was convicted under two counts for violating the provisions of the Internal Revenue Code relating to marihuana. The primary question is whether the district court erred in denying the defendant’s motion for judgment of acquittal.
The evidence is simple and was given by only two witnesses. George D. Scales, a Treasury Department Customs Agent, testified that, according to a chemical analysis which he had secured, the cigarettes found in defendant’s car were marihuana cigarettes, and that, upon his demand upon the defendant for the required order form, the defendant failed to produce it and said that he had no such form. Mr. Scales apparently had no other connection with the case: The principal witness for- the Government was George D. Hernandez, a detective in the Police Department of the City of El Paso. He testified that at about 9 o’clock on the evening of August 23,1956, he was in the Arlington Bar at the intersection of El Paso and Paisano Streets in El Paso and saw Guevara walking along the street acting as though he was looking for some other person; that Guevara entered the Central Hotel which was across the street from the saloon and remained there for some ten minutes; that shortly after coming back on El Paso Street, Guevara met another man who in this case remains nameless. Hernandez shadowed Guevara and his companion as they walked around the block and got into a parked car which was not locked. Both men got into the front seat, Guevara getting in on the driver’s side and driving the car away. At this point, Officer Hernandez got into a parked police car with two other officers who had been helping him, and they followed the car Guevara was driving for some three and one-half blocks, until it was stopped at an intersection by a red light. At this point Hernandez and one of the other officers, named Gonzales, rushed out and without more ado jplaeed Guevara and his companion under arrest. The two prisoners were taken to the police station in the police car and Hernandez alone drove Guevara’s car to the police station. There it was searched and a stick of wood wrapped with tape and prepared as a club was found on the floor directly under Guevara’s seat, and a package containing 50 marihuana cigarettes was also found on the floor under the seat but in the middle of the car about halfway between the driver’s seat and the passenger’s seat. Guevara admitted owning the club, explaining that he carried it for protection since recently he had been attacked and knifed by an assailant, but both he and his companion denied any knowledge of the marihuana cigarettes which lay on the floor under the seat between them. The police officers believed the statement made by both men that Guevara was only carrying his passenger home and, therefore, released this unnamed companion and he went on his way. Officer Hernandez stated on cross-examination that, during the time in which he had Guevara under observation, Guevara committed no unlawful act. He also testified that the seat of the car was so constructed that either Guevara or his companion could’ have placed the cigarettes in the position where they were found merely by lowering a hand.
The Government relies on the presumption permitted by the statute. This evidentiary device adopted by the Congress has its roots in our early common law. Its reasonableness in marihuana cases is probably supported by similar grounds to those stated by the Supreme Court in connection with legislation on the opium trade. There is no question as to its constitutionality here.
“Possession” is not defined by statute. It must, of course, be a knowing possession. It has been said that in common speech and in legal terminology no term is more ambiguous than the word “possession,” and this is especially true when it occurs in criminal statutory provisions. It is so fraught with danger that the courts must scrutinize its use with all diligence, and the jury must be carefully instructed in order to prevent injustice. In Barfield v. United States, 5 Cir., 229 F.2d 936, 940, we called attention to the necessity for a clear and understandable instruction on the concept of possession. Here, as there, possession is crucial to the whole case.
“ ‘The verdict of a jury must be sustained if there is substantial evidence, taking the view most favorable to the Government, to support it.’ Glasser v. United States, supra, [315 U.S. 60, 62 S.Ct. 469]. In circumstantial evidence cases, this Court has said that the test to be applied is whether the jury might reasonably find that the evidence excludes every reasonable hypothesis except that of guilt. Vick v. United States, 5 Cir., 216 F.2d 228, 232, and cases there cited; see also United States v. Levy, 7 Cir., 138 F.2d 429, 430, 431.” Lloyd v. United States, 5 Cir., 226 F.2d 9, 13-14.
Was then the jury warranted in deducing from the evidence inferences which excluded every reasonable hypothesis but that of guilt? We think not. The cigarettes were in such position in the car that they could easily have been placed in the unlocked vehicle by any person. Under the circumstances here proved, there is no rational connection between ownership and possession of the automobile and possession of the cigarettes. For all that the present evidence shows, it is just as reasonable to believe that the cigarettes belonged to the passenger as to the appellant. A jury must not be left to speculate and surmise in a criminal case, merely hoping that they are drawing the proper inference.
“The authorities are clear that circumstantial evidence may, of course, be sufficient to convict. Nevertheless, because of the fact that it is circumstantial and that a grave wrong may be done to an innocent man by reasoning from circumstances not sufficiently cogent in themselves or as connected, and particularly not sufficiently exclusive of every innocent hypothesis, the courts have been very sedulous to prevent an innocent man being found guilty where the evidence does not conform to the acceptable standards.” Rodriguez v. United States, 5 Cir., 232 F.2d 819, 821.
The judgment of conviction is reversed, but, since the Government may possibly have further evidence, the cause is remanded for further proceedings not inconsistent with this opinion. See Bryan v. United States, 338 U.S. 552, 70 S.Ct. 317, 94 L.Ed. 335; cf. Sapir v. United States, 348 U.S. 373, 75 S.Ct. 422, 99 L.Ed. 426.
Reversed and remanded.
. First Count: “ * * * Juan Avalos Guevara, Jr., being then and there a transferee required to pay the transfer tax imposed by law, acquired and obtained, by transfer, from some person to your Grand Jurors unknown, 50 Marihuana Cigarettes, without having paid such lax.” Second Count: “* * * transported and concealed, and facilitated the transportation and concealment of 50 Marihuana Cigarettes, knowing that said Marihuana had been acquired and obtained without the transfer tax provided for in Section 4741(a) of Title 26, United States Code, having been paid.”
. 26 U.S.C.A., § 4744(a) (2):
‘‘ * * * Proof that any person shall have had in his possession any marihuana and shall have failed, after reasonable notice and demand, by the Secretary or his delegate, to produce the order form required by 4742 to be retained by him shall be presumptive evidence of guilt under this subsection and of liability for .the tax imposed by section 4741(a).”
. 1 Wigmore on Evidence, § 152.
. Yee Hem v. United States, 268 U.S. 178, 183, et seq., 45 S.Ct. 470, 69 L.Ed. 904.
. United States v. Maghinang, D.C.Del., 111 F.Supp. 760, 761; 9 Wigmore on Evidence § 2518, n. 3, 4, 5, and 6.
. 72 C.J.S., p. 233, and cases collected under notes 87 & 88.
. See also United States v. Tijerina, D.C., 138 F.Supp. 759, in which Judge Allred held that the finding of a package of marihuana in the curve of the bumper of the automobile was not sufficient to show possession in either the owner or the passengers of the car.
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_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.
Edwin L. VANN, Plaintiff-Counterclaim Defendant-Appellant, v. CITICORP SAVINGS OF ILLINOIS, as successor to Glen Ellyn Savings and Loan Association, Defendant-Counterclaim Plaintiff-Appellee, John F. Rosch, Defendant-Appellee, McRea, Inc., et al., Defendants. Richard Ingman, Counterclaim-Defendant.
No. 88-3981.
United States Court of Appeals, Eleventh Circuit.
Jan. 16, 1990.
J. David Pobjecky, Pros. Atty., Winter Haven, Fla. and Phillip E. Kuhn, Pros. Atty., Lakeland, Fla., for Edwin L. Vann.
John Franklin Rosch, Glen Ellyn, Ill., pro se.
David I. Herbst, Portes, Sharp, Herbst, Kravets & Fox, Ltd., Chicago, Ill. and Todd A. Cowart, Hermelee, Cowart & Minkin, P.A., Miami, Fla., for Citicorp Sav. f/k/a Glen Ellyn Sav.
Before KRAVITCH and CLARK, Circuit Judges, and ATKINS , Senior District Judge.
Honorable C. Clyde Atkins, Senior U.S. District Judge for the Southern District of Florida, sitting by designation.
PER CURIAM:
Plaintiff-appellant Edwin Vann appeals the district court’s order of October 21, 1988 granting defendant-appellee John Rosch’s motion for a new trial and defendant-appellee Citicorp’s motion for a directed verdict and conditional motion for a new trial. Because the October 21, 1988 district court order failed to resolve all of the claims of all of the parties to this action, we dismiss this appeal for lack of jurisdiction.
I. Facts and Prior Proceedings
Vann brought this action against Glen Ellyn Savings & Loan Association, Rosch, James Reagin, McRea, Inc., E. Tarrell Hodges, and Harry L. Sugg alleging various state and federal claims arising from a loan made to Vann that Citicorp now owns. Several of the defendants did not participate in the trial. Defendants Hodges and Sugg were dismissed on January 11, 1988 for lack of in personam jurisdiction. On March 3, 1988 the district court entered an order finding Reagin and McRea, Inc. in default. In addition to Vann’s complaint, Citicorp brought a counterclaim against Vann seeking to foreclose on the loan. The counterclaim joined Richard Ingman as a counterclaim defendant. In an amended counterclaim, Citicorp added two additional counterclaim defendants. After the district court granted a directed verdict against Vann on his federal claims and some of his state claims, the jury returned a verdict in Vann’s favor on his fraud and impairment of collateral claims. The district court then granted Citicorp’s motion for a JNOV and conditional new trial and Rosch’s motion for a new trial. See District Court Order of October 21, 1988. The district court granted Rosch’s motion for a new trial which left Vann’s fraud and impairment of collateral claims against Rosch outstanding.
While the judgment notwithstanding the verdict entered in favor of Citicorp did resolve all of Vann’s claims against Citicorp, the order did not resolve Citicorp’s counterclaim against Vann. In addition, the court refused to grant Ingman’s motion for a judgment of dismissal for lack of jurisdiction and did not address the claims against the additional counterclaim defendants.
The default claims against Reagin and McRea, Inc. also remain unresolved. In the October 21, 1988 order, the district court refused to grant Vann’s motion to award damages and ordered a hearing under Federal Rule of Civil Procedure 55(b)(2) to determine the amount of damages. Thus, as to defendants McRea, Inc. and Reagin, the district court was required to conduct an additional hearing on Vann’s damage claims against the two defaulting defendants.
On December 5, 1988, Rosch moved to dismiss this appeal for lack of jurisdiction arguing that the district court’s order granting a new trial on Vann’s claims against him prevented the case from becoming final and appealable. A motions panel of this court denied the motion to dismiss on March 7, 1989. After further review of the case with the benefit of oral argument and additional briefing from the parties, we vacate the March 7, 1989 order of the motions panel and dismiss this appeal for want of jurisdiction.
II. Discussion
As noted in the factual introduction, there are three remaining district court “proceedings” to be completed before this ease is finished. Each of the three proceedings independently strip this court of its jurisdiction to hear the issues raised by this appeal.
The appellant argues that this court has jurisdiction by virtue of 28 U.S.C. § 1291 which gives this court jurisdiction to review the “final decisions” of the district courts in this circuit. While in some cases other sections of Title 28 operate to vest this court with jurisdiction to review certain interlocutory orders, neither the appellant nor the appellees asserts that any provision other than section 1291 even arguably gives this court jurisdiction.
Determining that an order is “final” and appealable under section 1291 is sometimes difficult. This court has cautioned against an inflexible approach to jurisdictional questions. See In re Martin Bros. Toolmaker, Inc., 796 F.2d 1435, 1437 (11th Cir.1986). Nevertheless, there are certain guidelines that provide a firm limitation on this court’s ability to hear an appeal. In this case, Federal Rule of Civil Procedure 54(b) provides such a limit.
Rule 54(b) provides:
When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.
Id. (emphasis added). The purpose of this rule is to codify the historic practice of “prohibit[ing] piecemeal disposition of litigation and permitting appeals only from final judgments” except in the “infrequent harsh case” where the district court makes the certification contemplated by the rule. Fed.R.Civ.P. 54(b) advisory committee note to 1946 amendment. Thus, the rule operates to make the district court the “dispatcher” of appeals in multi-party multi-claim actions. In re Yarn Processing Patent Validity Litigation, 680 F.2d 1338, 1339-40 (11th Cir.1982).
In applying Rule 54(b), we are first confronted with the presence of the new trial ordered with respect to Vann’s claims against Rosch. Vann, relying on this court’s previous order, argues that if the court has jurisdiction over a portion of this case it can choose to hear the appeal of the otherwise nonappealable new trial order since the case is then lawfully before the court. Vann points to the district court order entering the JNOV in favor of Citi-corp as the final order giving this court jurisdiction over a portion of the appeal. Vann also argues that this appeal will provide a more prompt and efficient disposition of the case since it may obviate the need for a second trial.
This argument, however, is not applicable in the context of a Rule 54(b) case. First, the argument assumes that the JNOV ruling is appealable. While it is true that Rule 50(c) operates to prevent the conditional new trial ordered against Vann from destroying the finality of the JNOV, that rule only allows appeal from an order granting a JNOV that is final apart from the conditional new trial. In this case, Rule 54(b) operates to destroy the finality of the JNOV.
The cases relied on in support of this argument illustrate this interpretation of the rule. In both Anderson v. Atlanta, 778 F.2d 678 (11th Cir.1985), and Deas v. Paccar, Inc., 775 F.2d 1498 (11th Cir.1985), cert. denied, 475 U.S. 1129, 106 S.Ct. 1658, 90 L.Ed.2d 201 (1986), the orders granting the JNOV motions were final orders disposing of all of the claims against all of the parties. See Anderson, 778 F.2d at 680 (district court granted both defendants’ motions for JNOV); Deas, 775 F.2d at 1499 (district court granted both plaintiffs’ motions for JNOV in favor of defendant so plaintiffs could immediately appeal district court’s order granting defendant’s motion for new trial). Thus, when the court decided to review the new trial orders in each of those cases, the court lawfully had the ease before it. In addition, the orders granting the JNOV against all of the plaintiffs and in favor of all of the defendants on all claims rendered the orders final.
The two other remaining “proceedings” also operate to strip this court of jurisdiction. The presence of an unresolved compulsory counterclaim involving parties not present in this appeal operates to make the judgment appealed from a claim resolving fewer than all of the claims of all of the parties and is therefore not final by virtue of Rule 54(b). See Yarn Processing, 680 F.2d at 1339-40 (court without jurisdiction to review dismissal of cross-claim when initial claims raised in both complaint and counterclaim remain unresolved).
Citicorp suggests in its supplemental brief that the district court “severed” the counterclaim from Vann’s action. Citicorp argues that this severance renders the counterclaim irrelevant to the determination of the finality of the October 21, 1988 order. While a motion to sever the counterclaim, and a motion to add defendants was made, the record does not contain any evidence of an order granting severance. However, since the jury did not rule on the counterclaim, we, assume that there was a decision made to try the actions separately.
The basis for that decision, however, remains unclear. The fifth circuit has noted that the term sever is often used without indicating whether a Rule 42(b) separation of trials or a Rule 21 separation of the cases is intended. United States v. O’Neil, 709 F.2d 361, 366 (5th Cir.1983). Different consequences flow from the two rules. Since a Rule 21 severance creates a separate action, Rule 54(b) is not applicable; however, a Rule 42(b) separate trial does not separate the actions. Id. at 368. In a Rule 42(b) case, “the counterclaim continues as part of this ‘action[,]’ and thus Rule 54(b) leaves us without jurisdiction.” Belmont Place Associates v. Blyth, Eastment, Dillion & Co., 565 F.2d 1322, 1323 (5th Cir.1978). After examining the record, we conclude that the court intended to try the actions separately under Rule 42(b).
We note that the parties are free to seek an explicit order severing the cases. This order would remove the presence of the unresolved counterclaim issues as a bar to a future appeal.
In addition, the district court’s order also necessitated a Rule 55(b)(2) hearing to determine damages to be awarded against the defaulting defendants. The refusal of the district court to enter judgment against Reagin and McRea, Inc. is another example of a remaining claim against two remaining parties that prevent the October 21, 1988 order from resolving all of the claims of all of the parties. See Bache & Co. v. Taylor, 458 F.2d 395, 395 (5th Cir.1972) (absence of Rule 54(b) certificate prevents default judgment from becoming final judgment when district court had yet to set damages). Vann argues in his supplemental brief that these remaining proceedings are merely ministerial. While this argument may have some merit, it is foreclosed by the cases noted above.
Finally, we note that this case is the perfect example of why Rule 54(b) assigns the dispatcher function to the district court. Instead of certifying this case for appeal, the visiting district court judge expressed his displeasure at the haste with which this case was rushed to trial. In addition, we note that many of the issues that may be raised by the counterclaim are identical to some of the issues raised in this appeal. The problems caused by the rush of this case to trial should not be compounded by the premature appeal appellant now seeks.
For the reasons stated in this opinion, this appeal is DISMISSED for lack of jurisdiction and the case is REMANDED to the district for further proceedings.
. This court’s order of June 27, 1989 substituted [as appellee] Citicorp Savings of Illinois "Citi-corp” in place of defendant Glen Ellyn. For the sake of simplicity, the remainder of this opinion refers only to Citicorp rather than distinguishing between the actions of Glen Ellyn and Citi-corp.
. We note that panels of this court are usually bound by the opinions of prior panels of the court unless the prior opinion is overruled by the court sitting en banc or the Supreme Court. See Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981) (en banc). A motions panel’s order, however, does not bind the panel hearing the case on the merits. 11th Cir. Rule 27—1(f).
. In this case, it is undisputed that the certification was not made.
. Callaway v. Block, 763 F.2d 1283, 1287-88 n. 6 (11th Cir.1985) and Mercury Motor Express, Inc. v. Brinke, 475 F.2d 1086, 1091 (5th Cir.1973) are also distinguishable. In those cases an order denying a motion for a preliminary injunction was appealed. Section 1292(a)(1) of Title 28 explicitly gives the court jurisdiction over those orders. Thus, as in Anderson and Deas, the court rightfully had jurisdiction over part of the case. The Callaway court proceeded to decide the merits of the case rather than merely review the order denying the preliminary injunction. The court noted, however, that "no relevant facts were at issue." Callaway, 763 F.2d at 1288 n. 6. Similarly, the Mercury Motor court reviewed the district court's order staying the proceedings in addition to its refusal to grant the preliminary injunction. Mercury Motor, 474 F.2d at 1091. The court exercised jurisdiction over the otherwise nonappealable stay order because “ 'the case was lawfully before the court of appeals.’ ” Id. (citing Moore’s Federal Practice). In both cases the courts had an independent source of jurisdiction, and in neither case was Rule 54(b) applicable.
. In support of this contention Citicorp points to the March 28, 1988 order of the district court allowing Citicorp to file an amended counterclaim. This order was made “pursuant to Rules 19 and 21” of the federal rules. While Rule 21 is the rule allowing severance, it also allows the district court to add parties. The March 28, 1988 order that Citicorp argues severed the counterclaim was prompted by Citicorp’s March 9, 1988 motion to add additional counterclaim defendants. Both the motion and the order discuss adding the additional defendants, but neither discusses the severing of the counterclaim. This order did not sever the counterclaim.
The record does reveal that Citicorp did make a motion to sever the counterclaim for a separate trial on February 26, 1988. This motion was made pursuant to Rule 42(b) which allows the court to order separate trials. Citicorp asserted that there was no objection to the motion by the defendants and the record does not reveal any response to the motion from either the court or the plaintiff.
. First, Citicorp’s February 26, 1988 motion to sever requested that Vann’s affirmative defenses to the counterclaim be tried at the same time as Vann’s claims against Citicorp. The separate treatment of the counterclaim and the affirmative defenses, while understandable as a matter of judicial economy, is evidence that the court did not intend to separate the cases under Rule 21. In addition, the district court issued orders on the counterclaim in the same opinion as the main case and did not give a new docket number to the amended counterclaim filed after the March 28, 1988 order. Cf. O’Neil, 709 F.2d at 366-67 (claims found severed under Rule 21 when the district court entered judgment on claims and noted in judgments that counterclaims were severed for separate trials). Finally, in O’Neil the court found that the district court did not suggest “in any way that [the judgments] were not final.” Id. at 367. In this case, however, the visiting district court judge "returned" the case for further proceedings. District Court Order of October 21, 1988, at 46.
. In the supplementary briefs filed on the jurisdictional question, Vann asked this court to treat his brief as a motion to dismiss Reagin and McRea, Inc. If the court treats this request as a motion to dismiss these defaulting defendants from this appeal, the motion is unnecessary since the defaulting parties are not parties to the appeal. We are unaware of any authority which would authorize the dismissal of a claim against a party by a court of appeals. While we can dismiss appeals, only the district court has authority to dismiss an action and enter a final judgment. In any event, since the counterclaim and the new trial each independently operate to destroy the finality of the district court’s October 21, 1988 order, even the dismissal of the defaulting defendants would not save this appeal.
. In Bonner, this court adopted as binding precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981. 661 F.2d at 1209.
Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number.
Answer:
|
sc_lcdisposition
|
C
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the treatment the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed, that is, whether the court below the Supreme Court (typically a federal court of appeals or a state supreme court) affirmed, reversed, remanded, denied or dismissed the decision of the court it reviewed (typically a trial court). Adhere to the language used in the "holding" in the summary of the case on the title page or prior to Part I of the Court's opinion. Exceptions to the literal language are the following: where the Court overrules the lower court, treat this a petition or motion granted; where the court whose decision the Supreme Court is reviewing refuses to enforce or enjoins the decision of the court, tribunal, or agency which it reviewed, treat this as reversed; where the court whose decision the Supreme Court is reviewing enforces the decision of the court, tribunal, or agency which it reviewed, treat this as affirmed; where the court whose decision the Supreme Court is reviewing sets aside the decision of the court, tribunal, or agency which it reviewed, treat this as vacated; if the decision is set aside and remanded, treat it as vacated and remanded.
NATIONAL GEOGRAPHIC SOCIETY v. CALIFORNIA BOARD OF EQUALIZATION
No. 75-1868.
Argued February 23, 1977—
Decided April 4, 1977
Arthur B. Hanson argued the cause for appellant. With him on the briefs were Michael N. Khourie, Glenn L. Archer, Jr., and Michael C. Durney.
Philip M. Plant, Deputy Attorney General of California, argued the cause for appellee. With him on the brief were Evelle J. Younger, Attorney General, and Ernest P. Goodman, Assistant Attorney General.
Harold T. Halfpenny filed a brief for the Direct Mail/Marketing Assn., Inc., as amicus curiae urging reversal.
Louis J. Lefkowitz, Attorney General, Samuel A. Hirshowitz, First Assistant Attorney General, and Philip Weinberg, Assistant Attorney General, filed a brief for the State of New York as amicus curiae urging affirmance.
Mr. Justice Brennan
delivered the opinion of the Court.
Appellant National Geographic Society, a nonprofit scientific and educational corporation of the District of Columbia, maintains two offices in California that solicit advertising copy for the Society’s monthly magazine, the National Geographic Magazine. However, the offices perform no activities related to the Society’s operation of a mail-order business for the sale from the District of Columbia of maps, atlases, globes, and books. Orders for these items are mailed from California directly to appellant’s Washington, D. C., headquarters on coupons or forms enclosed with announcements mailed to Society members and magazine subscribers or on order forms contained in the magazine. Deliveries are made by mail from the Society’s Washington, D. C., or Maryland offices. Payment is either by cash mailed with the order or after a mailed billing following receipt of the merchandise. Such mail-order sales to California residents during the period involved in this suit aggregated $83,596.48.
California Rev. & Tax. Code § 6203 (West Supp. 1976) requires every “retailer engaged in business in this state and making sales of tangible personal property for storage, use, or other consumption in this state” to collect from the purchaser a use tax in lieu of the sales tax imposed upon local retailers. The California Supreme Court held that appellant is subject to the statute as a “ 'retailer engaged in business in this state,' ” because its maintenance of the two offices brings appellant within the definition under § 6203 (a) that includes “ '[a]ny retailer maintaining . . . an office. . . .'" 16 Cal. 3d 637, 642, 547 P. 2d 458, 460—461 (1976). Section 6204 makes the retailer liable to the State for any taxes required to be collected regardless of whether he collects the tax. See Bank of America v. State Bd. of Equalization, 209 Cal. App. 2d 780, 793, 26 Cal. Rptr. 348, 355 (1962).
The question presented by this case is whether the Society’s activities at the offices in California provided sufficient nexus between the out-of-state seller appellant and the State—as required by the Due Process Clause of the Fourteenth Amendment and the Commerce Clause—to support the imposition upon the Society of a use-tax-collection liability pursuant to §§ 6203 and 6204, measured by the $83,596.48 of mail-order sales of merchandise from the District of Columbia and Maryland. The California Supreme Court held that the imposition of use-tax-collection liability on the Society violated neither Clause, 16 Cal. 3d 637, 547 P. 2d 458 (1976). We noted probable jurisdiction. 429 U. S. 883 (1976). We affirm.
I
All States that impose sales taxes also impose a corollary-use tax on tangible property bought out of State to protect sales tax revenues and put local retailers subject to the sales tax on a competitive parity with out-of-state retailers exempt from the sales tax. H. R. Rep. No. 565, 89th Cong., 1st Sess., 614 (1965). The constitutionality of such state schemes is settled. Henneford v. Silas Mason Co., 300 U. S. 577, 581 (1937); Monamotor Oil Co. v. Johnson, 292 U. S. 86 (1934).
But the limitation of use taxes to consumption within the State so as to avoid problems of due process that might arise from the extension of the sales tax to interstate commerce, see, e. g., Nelson v. Sears, Roebuck & Co., 312 U. S. 359, 363 (1941); Monamotor Oil Co. v. Johnson, supra, at 95, does not avoid all constitutional difficulties. States necessarily impose the burden of collecting the tax on the out-of-state seller; the impracticability of its collection from the multitude of individual purchasers is obvious. Miller Bros. Co. v. Maryland, 347 U. S. 340, 343 (1954). However, not every out-of-state seller may constitutionally be made liable for payment of the use tax on merchandise sold to purchasers in the State. The California Supreme Court concluded, based on its survey of the relevant decisions of this Court, that the “slightest presence” of the seller in California established sufficient nexus between the State and the seller constitutionally to support the imposition of the duty to collect and pay the tax. The California court stated, 16 Cal. 3d, at 644, 547 P. 2d, at 462:
“We are satisfied that from the above cited decisions the following principle can be distilled and we thus hold: Where an out-of-state seller conducts a substantial mail order business with residents of a state imposing a use tax on such purchasers and the seller’s connection with the taxing state is not exclusively by means of the instruments of interstate commerce, the slightest presence within such taxing state independent of any connection through interstate commerce will permit the state constitutionally to impose on the seller the duty of collecting the use tax from such mail order purchasers and the liability for failure to do so.” (Emphasis supplied.)
Our affirmance of the California Supreme Court is not to be understood as implying agreement with that court’s "slightest presence” standard of constitutional nexus. Appellant’s maintenance of two offices in the State and solicitation by employees assigned to those offices of advertising copy in the range of $1 million annually, Tr. of Oral Arg. 6, establish a much more substantial presence than the expression “slightest presence” connotes. Our affirmance thus rests upon our conclusion that appellant’s maintenance of the two offices in California and activities there adequately establish a relationship or “nexus” between the Society and the State that renders constitutional the obligations imposed upon appellant pursuant to §§ 6203 and 6204. This conclusion is supported by several of our decisions.
The requisite nexus was held to be shown when the out-of-state sales were arranged by the seller’s local agents working in the taxing State, Felt & Tarrant Co. v. Gallagher, 306 U. S. 62 (1939); General Trading Co. v. Tax Comm’n, 322 U. S. 335 (1944), and in cases of maintenance in the State of local retail store outlets by out-of-state mail-order sellers. Nelson v. Sears, Roebuck & Co., supra; Nelson v. Montgomery Ward, 312 U. S. 373 (1941). In Scripto, Inc. v. Carson, 362 U. S. 207 (1960), the necessary basis was found in the case of a Georgia-based company that had “10 wholesalers, jobbers, or 'salesmen' conducting continuous local solicitation in Florida and forwarding the resulting orders from that State to Atlanta for shipment of the ordered goods,” id., at 211, although maintaining no office or place of business in Florida, and having no property or regular full-time employees there.
Standard Pressed Steel Co. v. Washington Rev. Dept., 419 U. S. 560 (1975), is also instructive. That case involved a direct tax upon the gross receipts of a foreign corporation resulting from sales to a State of Washington customer, and not imposition of use-tax-collection duties. Although “a vice in a tax on gross receipts of a corporation doing an interstate business is the risk of multiple taxation . . . ,” id., at 563, see Monamotor Oil Co. v. Johnson, supra, a concern not present when only imposition of use-tax-collection duty is involved, Standard Pressed Steel held that maintenance in the taxing State of a single employee, an engineer whose office was in his Washington home and whose primary responsibility was to consult with the Washington-based customer regarding its anticipated needs for the out-of-state supplier’s product, established a sufficient relation to activities within the State producing the gross receipts as to support imposition of the tax. It is particularly significant for our purposes in this case that the Court characterized as “frivolous” the argument that the seller’s in-state activities were so thin and inconsequential that the tax had no reasonable relation to the protection and benefits conferred by the taxing State, for the employee “made possible the realization and continuance of valuable contractual relations between [the seller and its Washington customer].” 419 U. S., at 562. Other fairly apportioned, nondiscriminatory direct taxes have also been sustained when the taxes have been shown to be fairly related to the services provided the out-of-state seller by the taxing State. Complete Auto Transit, Inc. v. Brady, ante, p. 274; General Motors Corp. v. Washington, 377 U. S. 436 (1964); Northwestern Cement Co. v. Minnesota, 358 U. S. 450 (1959); Memphis Gas Co. v. Stone, 335 U. S. 80 (1948); Wisconsin v. J. C. Penney Co., 311 U. S. 435, 444 (1940).
The case for the validity of the imposition upon the out-of-state seller enjoying such services of a duty to collect a use tax is even stronger. See Norton Co. v. Illinois Rev. Dept., 340 U. S. 534, 537 (1951). The out-of-state seller runs no risk of double taxation. The consumer’s identification as a resident of the taxing State is self-evident. The out-of-state seller becomes liable for the tax only by failing or refusing to collect the tax from that resident consumer. Thus, the sole burden imposed upon the out-of-state seller by statutes like §§ 6203 and 6204 is the administrative one of collecting it. Compare McLeod v. Dilworth Co., 322 U. S. 327 (1944) (sales tax), with Scripto, Inc. v. Carson, supra, and General Trading Co. v. Tax Comm’n, supra. See also American Oil Co. v. Neill, 380 U. S. 451, 454-455 (1965).
Two decisions that have held fact patterns deficient to establish the necessary nexus to impose the duty to collect the use tax highlight the significance of the inquiry whether the out-of-state seller enjoys services of the taxing State. Miller Bros. Co. v. Maryland, 347 U. S. 340 (1954), struck down a Maryland assessment against a Delaware store near the border between the two States. The store had made over-the-counter sales to Maryland residents and occasionally shipped or delivered goods by truck into that State. The store advertised in Delaware by newspaper and radio, and some of these advertisements reached Maryland residents. These advertisements were sometimes supplemented with “flyers” mailed to customers, some of whom lived in Maryland. The Court concluded that Maryland could not satisfy the due process requirement. In addition to the almost total lack of contacts between Maryland and the Delaware store— Marylanders went to Delaware to make purchases, the seller did not go to Maryland to make sales—the seller obviously could not know whether the goods sold over the counter in Delaware were transported to Maryland prior to their use. See Scripto, Inc. v. Carson, supra, at 212.
National Bellas Hess, Inc. v. Illinois Rev. Dept., 386 U. S. 753 (1967), presented the question in the case of an out-of-state seller whose only connection with customers in the taxing State was by common carrier or mail. Illinois subjected appellant Bellas Hess, a national mail-order house centered in Missouri, to use tax liability based upon mail-order sales to customers in that State. Bellas Hess owned no tangible property in Illinois, had no sales outlets, representatives, telephone listings, or solicitors in that State, and did not advertise there by radio, television, billboards, or newspapers. It communicated with potential customers by mailing catalogues throughout the United States, including Illinois, twice a year and occasionally supplemented this effort by mailing out “flyers.” All orders for merchandise were mailed to Bellas Hess’ Missouri plant, and the goods were sent to customers by mail or common carrier. Bellas Hess held that, constitutionally, the basis for the requisite nexus was not to be found solely in Bellas Hess’ mail-order activities in the State. The Court’s opinion carefully underscored, however, the “sharp distinction . . . between mail order sellers with retail outlets, solicitors, or property within [the taxing] State, and those [like Bellas Hess] who do no more than communicate with customers in the State by mail or common carrier as part of a general interstate business.” Id., at 758. Appellant Society clearly falls into the former category.
II
The Society argues, however, that its contacts with customers in California were related solely to its mail-order sales by means of common carrier or the mail, that the two offices played no part in that activity, and that therefore this case is controlled by Bellas Hess. The Society argues in other words that there must exist a nexus or relationship not only between the seller and the taxing State, but also between the activity of the seller sought to be taxed and the seller’s activity within the State. We disagree. However fatal to a direct tax a “showing that particular transactions are dissociated from the local business . . . ,” Norton Co. v. Illinois Rev. Dept., supra, at 537; American Oil Co. v. Neill, supra; Connecticut Gen. Life Ins. Co. v. Johnson, 303 U. S. 77 (1938), such dissociation does not bar the imposition of the use-tax-collection duty. It is true that Sears, Roebuck and Montgomery Ward, relied on by appellant, involved fact patterns that included proof of assistance by local operations of the mail-order business. Sears maintained 12 retail stores in the taxing State and was qualified to do business there. Sears’ agents in the States, although not directly involved in the solicitation of the mail-order sales, at times assisted in processing such orders. The holding that Sears could not avoid use-tax liability did not, however, turn on that fact. The holding, rather, was that the fact Sears’ business was departmentalized—the mail-order and retail stores operations were separately administered—did not preclude the finding of sufficient nexus. Montgomery Ward, a companion case to Sears, Roebuck, presented a somewhat similar fact pattern. There the local retail stores engaged in local advertising of the mail-order merchandise. But here again we disagree that this fact was crucial to the Court’s decision. Even if, as the Society argues, the fact patterns of Sears and Montgomery Ward may be regarded as the equivalent of the in-state solicitation by local agents found sufficient to supply the nexus for imposition of the use-tax-collection duty in Felt & Tarrant Co. v. Gallagher, 306 U. S. 62 (1939), see also Scripto, Inc. v. Carson, 362 U. S. 207 (1960) (local solicitation by commission “salesmen”); General Trading Co. v. Tax Comm’n, 322 U. S. 335 (1944) (traveling salesmen sent into taxing State); Bowman v. Continental Oil Co., 256 U. S. 642 (1921) (local distributor and dealer); and Monamotor Oil Co. v. Johnson, 292 U. S. 86 (1934) (local refining, storage, and distributing facilities), the relevant constitutional test to establish the requisite nexus for requiring an out-of-state seller to collect and pay the use tax is not whether the duty to collect the use tax relates to the seller’s activities carried on within the State, but simply whether the facts demonstrate “some definite link, some minimum connection, between [the State and] the person . . . it seeks to tax.” Miller Bros. v. Maryland, 347 U. S., at 344—345. (Emphasis added.) Here the Society’s two offices, without regard to the nature of their activities, had the advantage of the same municipal services—fire and police protection, and the like—as they would have had if their activities, as in Sears and Montgomery Ward, included assistance to the mail-order operations that generated the use taxes.
The Society’s reliance on Miller Bros. Co. v. Maryland, supra, is also misplaced. The sales with respect to which Maryland sought to impose upon Miller the duty to collect its tax were of goods sold to residents of Maryland at Miller’s Delaware store, although Miller made occasional deliveries in Maryland. Moreover, the lack of certainty that the merchandise sold over the counter to Maryland customers in Delaware was transported to Maryland prior to its use militated against a finding of adequate nexus with respect to those purchases. Scripto, Inc. v. Carson, supra, at 212-213. The relational defect between the taxing State and the person or property sought to be taxed therefore obviated any relevance of a relationship between the State and the out-of-state retailer.
We conclude that the Society’s continuous presence in California in offices that solicit advertising for its magazine provides a sufficient nexus to justify that State’s imposition upon the Society of the duty to act as collector of the use tax.
Affirmed.
The Chief Justice and Mr. Justice Rehnquist took no part in the consideration or decision of this case.
The relevant sections of the Cal. Rev. & Tax. Code provide:
§ 6203 (West Supp. 1976).
“Except as provided by Sections 6292 and 6293 every retailer engaged in business in this state and making sales of tangible personal property for storage, use, or other consumption in this state, not exempted under Chapters 3.5 or 4 of this part, shall, at the time of making the sales or, if the storage, use, or other consumption of the tangible personal property is not then taxable hereunder, at the time the storage, use, or other consumption becomes taxable, collect the tax from the purchaser and give to the purchaser a receipt therefor in the manner and form prescribed by the board.
“ ‘Retailer engaged in business in this state’ as used in this and the preceding section means and includes any of the following:
“(a) Any retailer maintaining, occupying, or using, permanently or temporarily, directly or indirectly, or through a subsidiary, or agent, by whatever name called, an office, place of distribution, sales or sample room or place, warehouse or storage place or other place of business.”
§ 6204 (West 1970).
“The tax required to be collected by the retailer and any amount unreturned to the customer which is not tax but was collected from the customer under the representation by the retailer that it was tax constitutes debts owed by the retailer to this state.”
The magazine is exempted from sales and use taxes as a “periodical.” § 6362.
The offices are in San Francisco and Los Angeles and have been maintained since 1956. Each office was originally staffed with one salesman and one secretary, but each office has since increased its personnel to four. The basic function of the offices is to solicit advertising for the magazine, 16 Cal. 3d, at 640, 547 P. 2d, at 459-460. Sales of advertising copy by the two offices aggregate about $1 million annually. Tr. of Oral Arg. 6. During a nine-month period from August 1, 1963, to May 6, 1964, appellant Society also used these offices to make over-the-counter sales, upon which sales taxes were paid, of maps, atlases, globes, and books totaling $679.20 for the San Francisco office and $2,161.85 for the Los Angeles office. The California Supreme Court found it unnecessary to consider these sales in determining whether sufficient nexus was shown since the Society’s office activities sufficed in its view adequately to prove sufficient nexus. 16 Cal. 3d, at 641 n. 6, 547 P. 2d, at 460 n. 6. We are of the same view.
Although appellant’s potential liability exceeds $180,000 and covers a nine-year period, ibid., the assessment by the California Board of Equalization for the years involved in this case is $3,838.76, including interest and penalties. Appellant paid the assessment under protest and sued for its refund in State Superior Court and recovered a judgment. The California Court of Appeal, First Appellate District, affirmed. 121 Cal. Rptr. 77 (1975). The California Supreme Court reversed and sustained the assessment. 16 Cal. 3d 637, 547 P. 2d 458 (1976).
Henneford obviated the necessity for legislation sought by the National Asssociation of State Tax Administrators in the 73d through 76th Congresses to permit States to extend their sales taxes to certain interstate transactions. See H. R. Rep. No. 565, 89th Cong., 1st Sess., 613-615 (1965). Some 45 States and the District of Columbia require out-of-state sellers to collect use taxes on sales made to state residents. Brief for Direct Mail/Marketing Assn, as Amicus Curiae 4.
Appellant Society argues that under the California Supreme Court’s “slightest presence” test §§ 6203 and 6204 could be applied even if the Society maintained no offices in the State but merely owned a parking lot. But the sections were applied to appellant only because it maintained the offices. Appellant was therefore only subject to the law because it fell within “retailer engaged in business in this state” as defined in § 6203 (a).
Appellant conceded at oral argument that Bellas Hess would have required reversal in the absence of the proof of maintenance of the two offices. Tr. of Oral Arg. 29, 34-35.
Contrary to appellant's argument, Brief for Appellant 6, the fact that it has not registered to do business in California is not determinative against the validity of the application of §§ 6203 and 6204. See General Trading Co. v. Tax Comm’n, 322 U. S. 335 (1944); Felt & Tarrant Co. v. Gallagher, 306 U. S. 62 (1939).
Question: What treatment did the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed?
A. stay, petition, or motion granted
B. affirmed
C. reversed
D. reversed and remanded
E. vacated and remanded
F. affirmed and reversed (or vacated) in part
G. affirmed and reversed (or vacated) in part and remanded
H. vacated
I. petition denied or appeal dismissed
J. modify
K. remand
L. unusual disposition
Answer:
|
songer_direct1
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for the defendant. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards.
John K. GLICK, Appellant, v. Don R. ERICKSON, as the Duly Appointed and Acting Warden of the South Dakota State Penitentiary, Appellee.
No. 73-1413.
United States Court of Appeals, Eighth Circuit.
Submitted Oct. 18, 1973.
Decided Dec. 11, 1973.
Steve Jorgensen, Sioux Falls, S. D., for appellant.
Walter W. Andre, Asst. Atty. Gen., Pierre, S. D., for appellee.
Before LAY, BRIGHT, and WEBSTER, Circuit Judges.
BRIGHT, Circuit Judge.
John K. Glick here seeks habeas corpus relief from a ten-year sentence for armed robbery imposed upon him by the State of South Dakota in 1971. He claims the police unlawfully searched him and seized a pistol and ammunition which were later introduced in evidence in the state trial. The State Supreme Court affirmed his conviction on direct appeal and denied him relief from the alleged unlawful search and seizure. State v. Glick, 201 N.W.2d 867 (S.D. 1972). The United States District Court quashed his petition for habeas corpus relief. Glick v. Erickson, 356 F.Supp. 535 (S.D.1973). On the record presented here, we find the contentions of Glick to be without merit and we affirm.
The controversy here centers on a “frisk” search of Glick’s person made by Detective Eugene Horst of the Sioux Falls, South Dakota, Police Department on November 7, 1970, less than two hours after the occurrence of an armed robbery at a Sioux Falls gasoline service station. The trial record does not disclose a complete explanation of how Detective Horst happened to find Glick at the particular house located at 724 North Mable, Sioux Falls, South Dakota, and thus, on this appeal, Glick contends, the record shows no reasonable basis for the officer’s intrusion into the private home nor for conducting the search of his person. Accordingly, Glick urges, the search should be held in violation of his fourth amendment rights and the trial held invalid because this questioned evidence was admitted at the trial in contravention of the exclusionary rule.
Glick’s arguments rest on the transcript of the trial which, as has been noted, does not disclose background circumstances to Detective Horst’s search and seizure of the revolver and ammunition. The argument as based on the trial transcript has some facial validity since an unexplained police search of a person occupying a private dwelling suggests an arbitrary invasion of personal rights. The trial record, however, discloses that Glick through his attorney never made a motion to suppress the questioned evidence on fourth amendment grounds. Instead he sought initially to exclude them on state statutory grounds, since the officer seizing these items failed to issue Glick a receipt for his property as required by S.D. Compiled Laws Ann. § 23-16-1 (1967). Later, defense counsel tangentially referred to the fourth amendment during the prosecution’s case-in-chief in objecting to testimony relating to items discovered and seized from Glick by Detective Horst, stating somewhat indefinitely:
MR. JORGENSEN: I would object to any testimony with regard to what this officer found in any pockets or upon the person of the defendant, him not having been under arrest so it couldn’t be incidental to the arrest. No search warrant, no arrest warrant.
The trial court briefly discussed the objection with the attorneys in a proceeding outside the presence of the jury. The prosecutor explained that the same evidence had been introduced at a preliminary hearing without objection, noted that no motion to suppress had been made prior to trial, and suggested that the Supreme Court’s approval of “frisk” searches controlled. The trial court overruled the objection to the evidence and proceeded with the trial.
Appellant’s counsel in his reply brief explains that his strategy in this post-trial proceeding is geared to take advantage of the prosecution’s neglect in' failing to develop testimony at the trial which justified the search. With candor counsel states:
Counsel prior to trial examined the preliminary hearing transcript and interviewed witnesses for the prosecution. Counsel for the Appellant upon his investigation determined that a motion to suppress would not be granted because it was felt that at that time the State could show that probable cause existed for the search * * *
* * * * * *
* * * Counsel’s investigation of the facts of the case led him to the conclusion that the State would have no problem establishing probable cause.
This strategem misconceives our function in a habeas proceeding. We do not here act as a court of review for the state trial judge. The jurisdiction of federal courts may be invoked by a state prisoner who is in custody “in violation of the Constitution * * * of the United States * * 28 U.S.C. § 2241(c)(3). The record presented to the federal courts on this petition for habeas corpus relief consists of the entire state court file and transcript of the trial. This file includes the proceedings at Glick’s state court preliminary hearing.
The full record clearly shows that Detective Horst received a description of the robber which included a description of his clothing and physical features and the fact that he wore a mustache. Shortly after the robbery, a taxicab driver picked up a passenger at a bar located within two blocks of the locus of the crime. The cab driver delivered this fare to the address on Mable Avenue. From the record, one might infer that this information was relayed by the taxi driver or the taxi dispatcher to Sioux Falls police. In any event, based on information he received at the police station, Detective Horst went to 724 Mable Avenue. He knocked at the door of that residence, identified himself, and entered the house with permission. He observed three persons in the kitchen, and again identified himself. The officer testified at the preliminary hearing:
At this time I looked over at the defendant and at this time I asked him to stand up. He stood up at this time. I noticed he was wearing a mustache and also clothing which matched the description as in the armed robbery which had occurred earlier.
The officer patted Glick’s clothing and felt a hard object in the right coat pocket. He reached in the pocket and removed an ammunition clip for a .32 automatic pistol. He patted further and felt another hard object, and, upon pulling Glick’s coat back, removed a .32 automatic from his waistband.
The essential fact is that this weapons “frisk” was completely proper .and justified for Detective Horst’s own protection. Horst knew of the commission of an armed robbery. He was engaged in an investigation of the crime, and encountered a person matching the robber’s description at a place to which he had been directed. His conduct was eminently reasonable. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
In Terry, the Supreme Court articulated the “stop and frisk” doctrine which warrants a police intrusion of an individual’s privacy under circumstances where probable cause for an arrest does not exist. Chief Justice Warren wrote of an officer’s “pat down” search during the investigation of suspicious behavior:
* * * We are now concerned with more than the governmental interest in investigating crime; in addition, there is the more immediate interest of the police officer in taking steps to assure himself that the person with whom he is dealing is not armed with a weapon that could unexpectedly and fatally be used against him. Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties. American criminals have a long tradition of armed violence, and every year in this country many law enforcement officers are killed in the line of duty, and thousands more are wounded. Virtually all of these deaths and a substantial portion of the injuries are inflicted with guns and knives.
In view of these facts, we cannot blind ourselves to the need for law enforcement officers to protect themselves and other prospective victims of violence in situations where they may lack probable cause for an arrest. When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, it would appear to be clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm. [392 U.S. at 23-24, 88 S.Ct. at 1881.]
Upon examination of the whole record in this case, we find that Glick's petition for relief is utterly without merit. The trial court properly quashed the writ.
Affirmed.
. In this case, however, it was the objections of defense counsel, which the state trial judge sustained, that restricted the efforts of the prosecution to explain any basis for the search. The trial record discloses the following proceedings during Detective Horst’s testimony:
Q Going to the particular house, had you received some report of the robbery that had taken place at the station?
A Yes, I had received a call at my home from Lieutenant Renli first advising me.
MR. JORGENSEN: I object to any conversation this defendant might have had or this witness might have had with Lieutenant Renli as being hearsay.
THE COURT: Sustained.
* * * * *
Q All right, and then what else did you do?
A I also received some other information through the radio room at the Police Department that a subject matching the description ....
MR. JORGENSEN: I object to any information he received from the radio room as being hearsay testimony.
THE COURT: Sustained.
. We note that appellant’s counsel, perhaps inadvertently, misled this court in his brief by citing only the evidence in the trial transcript and claiming that it “constituted all of the material evidentiary facts” on this appeal. This was not true. Important facts were contained in both the transcript of the trial and the transcript of the preliminary hearing. We recognize that appointed counsel may not have realized that federal courts are entitled to examine the entire record in cases of this kind to determine whether a constitutional violation exists and are not limited solely to a review of the record on trial, as was the South Dakota Supreme Court.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
|
songer_treat
|
C
|
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.
AMERICAN LEGION POST NO. 90 OF VILLAGE OF MAMARONECK et al. v. FIRST NAT. BANK & TRUST CO. OF MAMARONECK et al.
No. 396.
Circuit Court of Appeals, Second Circuit.
July 22, 1940.
Burton C. Meighan, Jr., of New York City (Meighan & Necarsulmer and Louis A. Marchisio, all of New York City, and James S. May, of White Plains, N. Y., on, the brief), for plaintiffs-appellants.
Monroe J. Cahn, of White Plains, N. Y. (Lynch & Cahn and Harold M. Miller, all of White Plains, N. Y., on the brief), for defendants-appellees.
Before SWAN, CLARK, and PATTERSON, Circuit Judges.
CLARK, Circuit Judge.
In 1921, 83 citizens of the town of Mamaroneck subscribed a total sum of $15,641.75 towards the purchase of premises to be used for the erection of a Community House as a memorial to the veterans of the World War. Title to the land purchased was taken in the name of one McArdle, one of the subscribers to the fund. After this first flush civic spirit seems to have lagged somewhat, and funds were not forthcoming for the building of the house itself. In due time, therefore, decision was made by the subscribers to sell the premises, and by November, 1928, a purchaser was found for the land for the sale price of $160,000.
Meanwhile McArdle had died, and his wife, who took title to the property, deeded it to The First National Bank and Trust Company of Mamaroneck (the “old bank”) according to the arrangements which had been made on the advice of a title company for the proper effectuation of the contract of sale. The old bank accepted the conveyance, entered into the contract of purchase, eventually conveyed the property to the purchaser, and received back part of the purchase money in cash and a purchase money mortgage in the sum of $130,000 payable by March 1, 1930. Payments were made in due course, so that, by May IS, 1930, the old bank had received a final payment of the entire purchase sum, together with interest accruements. It made certain disbursements of expenses and payments on the principal to the subscribers. In January, 1932, the “new bank,” First National Bank of Mamaroneck, was organized to assume all the liabilities and obligations of the old bank; but it failed in January, 1933, at which time the Comptroller of the Currency found it to be insolvent and appointed a receiver for it. The old bank was likewise declared insolvent and a receiver appointed in February, 1934. The payments made against the account by the two banks totaled $102,318.81, leaving a balance on hand of $60,964.39, the amount here involved at the time of the failure of the new bank. The matter was before this court and these facts are recited in the case of Meeker v. Durey, 2 Cir., 92 F.2d 607, involving the issue of income tax liability on these funds. The present questions are whether the fund was held by the banks as a general deposit or as a trust, and if the latter, whether or ■ not certain securities set aside by the banks for their trust funds pursuant to statute may now be availed of for the payment of the balance due. The district court found only a general deposit and allowed plaintiffs merely their general claim.
The plaintiffs are a portion of the original subscribers .to the fund who are suing on behalf of themselves and all others similarly situated. The court below found that they were proper representatives of all the subscribers, and that this action was properly brought as a class suit under former Equity Rule 38, 28 U.S.C.A. following section 723, and Federal Rule 23, 28 U.S.C.A. following section 723c; that portion of the judgment below is not the subject of appeal. Nor is there appeal from so much of the judgment as allots to the subscribers a refund of income taxes in the amount of $20,188.99 secured by the receiver as a result of Meeker v. Durey, supra. In that case, which was a suit by the receiver of the new bank against the estate of the Collector of Internal Revenue, the plaintiff claimed a refund of taxes assessed against him as trustee or fiduciary in respect of this same fund. We held that the bank was not taxable as a fiduciary, since under New York law the deed to McArdle and the later deed to the bank gave rise only to a so-called passive trust; and we made an alternative ruling that even if the bank was a fiduciary, the income, consisting of gains on the sale, was not accumulated for the benefit, of unborn or uncertain persons. Hence the income, if any, was taxable to the subscribers, and' not to the bank.
The controlling statutory provisions in issue here are contained in a lengthy .'section of the Federal Reserve Act, § 11 (k), 12 U.S.C.A. § 248 (k), authorizing and empowering the Board of Governors of the Federal Reserve System to grant by special permit to a national bank applying therefor the right to act as trustee and in various other named representative capacities, including those of executor, administrator, or receiver, “or in any other fiduciary capacity” in which competing state banks may act. It is provided that national banks exercising the powers enumerated in this subsection “shall segregate all assets held in any fiduciary capacity from the general assets of the bank and shall keep a separate set of books and records showing in proper detail all transactions engaged in under authority of this subsection.” Then it is stated that “No national bank shall receive in its' trust department deposits of current funds subject to check or the deposit of checks, drafts, bills of exchange, or other items for collection or exchange purposes.” Next follows the provision specifically in issue: “Funds deposited or held in trust by the bank awaiting investment shall be carried in a separate account and ■ shall not be used by the bank in the conduct of its business unless it shall first set aside in the trust department United States bonds or other securities approved by the Board of Governors of the Federal Reserve System.” And the statute continues that in event of the bank’s failure the owners of the funds held in trust for investment shall have a lien on these securities so set apart, in addition to their claim against the estate of the bank.
In this case each of the banks here involved treated the funds received from the sale of the Community House property as part of its trust funds, carried the accounts thereof in its trust department, and set aside securities for the protection of this fund and its other trust funds. The method which was followed was not the allocating of separate securities of the bank to each trust fund, but merely the earmarking for the trust department of securities generally to cover the shifting balance due the trust department for all its trust funds. Since the assets of the bank set aside for the trust department are adequate to cover all the trust accounts, including the account now under discussion, it is obvious, and indeed not disputed, that the bank intended to protect this fund as a trust fund. The objections made are really three: that the fund was only a general deposit without priority, and the course of dealing indicates an intention that the bank should use the funds for its general purposes; that there was no agreement with the subscribers to hold the funds “for investment,” but only for distribution, thus taking the matter outside the quoted statute; and that, since no securities were set aside separately for .this particular fund, there were no securities available to which priority might attach.
1. We are clear that the hanks held the funds in a fiduciary capacity, and that the arrangement created something more than a general deposit. It is true that the court below made a specific finding of fact, which it repeated as a conclusion of law, that no agreement was at any time requested of, or made by, the old bank or the new bank that the said money should be held in trust or deposited in the trust department of the bank, or be invested on behalf of the contributors, or in any manner secured, with a further finding that the batiks carried the account in the trust department merely as a matter of convenience to themselves. There was testimony by the president of the old bank indicating that the funds had been received in trust, but this the court seems to have rejected. We think effect may he given to the finding to the extent of its holding that no express agreement as to the manner of carrying the fund was made; but a conclusion of law that this account was only a general deposit does not necessarily follow therefrom and is in truth at variance with other facts either admitted or clear of record.
As early as 1921 the McArdles executed a formal document expressly declaring that title to the property was held by Mr. Mc-Ardle “only as an intermediary” until it should be determined by the persons in charge of the Community House movement that it should be deeded to some one else, and they thereby agreed to deed the same when and how properly directed. From time to time thereafter McArdle was referred to as trustee of the Community House property. The bank, when it took title with full knowledge of this arrangement, necessarily did so as a similar “intermediary.” True, the language used seems to signify that McArdle first and the banks later were not to be express trustees. Indeed, it is made clear throughout that the subscribers to the fund or a committee thereof should give directions as to the disposition of the property. On the other hand, it is quite evident that these parties were acting as fiduciaries, and the characterization of the situation as a passive trust in our earlier decision seems the most apt designation. Certainly while the bank held title to the real estate it was something more than a mere debtor to the subscribers for the amount invested in the realty. When it collected the proceeds, it could hardly have altered its character to that of a mere debtor unless it acted in a manner clearly evidencing its intent to do so and unless the subscribers knew of and acquiesced in the change. Neither of these conditions is shown to have occurred.
Stress is placed upon the circumstance that the attorney for the subscribers, who was also attorney for the bank, requested deposit of tlie fund in the interest department of the hank, and later requested that the deposit be held so as to produce interest. But it is difficult to see why this circumstance, if it has any persuasive force, does not tend to indicate that the fund was held by the bank as a trust, rather than as a general deposit. A bank acting as trustee or fiduciary would be expected to produce an increment on funds in its hands. It would also naturally receive a fee for its services, as was the case here.
We turn to the “course of dealing” relied upon by the district court to show that the banks could use the funds for their general purposes. All incidents referred to seem either undecisive or even more suggestive of the fiduciary relationship than of the contrary. . First is the cii-cumstance just noted — that interest was credited at the rate of 3 per cent — a course which would seem to be more natural for trust funds than for general deposits. Next reference is made to the fact that the money was left with the bank for a long period of time. Such delay is explained by necessary incidents of the entire transaction, including the litigation with reference to income taxation; the delayed payments provided for in the contract of sale; the necessity of ascertaining who were the present representatives of the original subscribers, leading to the institution of a suit in the state court to determine such ownership; and the financial difficulties, the attempted reorganization, and the later receiverships of the banks. Finally, the large amounts disbursed 'from time to' time for expenses and attorney’s fees, directed by the committee, seem without particular significance. Of 'course, it was the committee, not the bank, which was in general charge of the transaction. But that, we think, goes no further than to show the relationship to be a passive, rather than an express, trust.
We conclude that, notwithstanding the district court’s finding, the account must be considered as one held by the banks in a fiduciary capacity, and not as a general account. In re Kountze Bros., 2 Cir., 103 F.2d 785, is not in point. There funds were deposited for a claimed special purpose, but we held the proof insufficient to show that there was an. intended segregation from the general accounts. There the private bankers did no.t hold the funds in a fiduciary capacity.
2. Perhaps more serious is the further claim that these were not funds held in trust “awaiting investment” and hence without the statute. We think, however, that this is too narrow a construction of the statute, and really defeats its intent. If trust funds held for investment are subject to the. statute, but trust funds held for distribution are only general assets of the bank, then we find a serious difference in result following from a very slight, even formalistic, change in the relations of the parties. It would be no great stretch to term this a fund held “for investment,” particularly since the desire of the subscribers for some increment on their funds was made so clear. It was not to be fully paid in for a year and a half; it was to bear interest at a substantial rate; it was subject to various difficulties of adjustment, including income tax litigation and other litigation which remained unsettled on the bank’s failure more than four years after the first receipts were had.
Moreover, a broader interpretation should be given to the statute. We think that the provisions for security include in general the fiduciary funds which the- bank is required to keep segregated from its general assets. Such, indeed, is the view taken by the Board of Governors of the Federal Reserve System in their Regulation F promulgated under the power to issue regulations granted by this same statute. This regulation provides that when funds received and held in the trust department of a national bank “awaiting investment or distribution” are deposited in the commercial or savings department of the bank to the credit of the trust department, security for the deposit must be provided in the shape of United States bonds or other specified assets of the bank. Defendants assert in their brief that this regulation was not called to the attention of the court below, and .that therefore we cannot take judicial notice of it. It seems, however, that, while an appellate court is not obligated to notice matters not brought to the attention of the trial court, Line v. Line, 119 Md. 403, 86 A. 1032, Ann.Cas.1914D, 192, yet it may take such notice where- necessary either to affirm, or to show the impropriety of, a decision below. Hunter v. New York, O & W. R. Co., 116 N.Y. 615, 23 N.E. 9, 6 L.R.A. 246. With respect to a regulation required by the statute for the carrying into effect of its terms, we should not hesitate to take judicial notice so far as is necessary. The point is not decisive here, since all we are saying is that the interpretation made by the Board of Governors of the Federal Reserve System accords with our own. It also accords with the conclusions reached in the other cases cited. Carcaba v. McNair, supra; Fesenmeyer v. Salt Springs Nat. Bank, supra; see also Sprague v. Ticonic Nat. Bank, 307 U.S. 161, 59 S.Ct. 777, 83 L.Ed. 1184.
3. We do not think the objection that the securities were provided for all the trust funds without definite segregation is sound, especially when asserted by the bank’s receiver. Regulation F above does not require segregation. Such a course, if required, would be a burdensome one, undoubtedly adding to the expense of carrying a trust account, particularly in the case of smaller trusts, We do not see how it adds very much to the security of the funds; it may indeed make each fund less secure by restricting the securities available to it in the event of the bank’s failure. Cf. Legis., 37 Col.L.Rev. 1384. At any rate we think the intent of the statute was complied with. This makes unnecessary consideration of the further question of tracing of the trust funds argued in the briefs.
Plaintiffs also argue that adjudication should be had as to securities totaling $20,000 on deposit with the Superintendent of Banks of the State of New York by the new bank for the benefit of its trust funds. While the problem as to such funds would seem identical with that before us, no issue was made as to them by the case below, and we do not pass upon the matter,
We think that the securities which the new bank had set aside for the purpose of protecting these funds were legally available for the intended purpose and should be so employed. The judgment is therefore reversed to provide for this re-sulk
This particular provision, has been held to he a prohibition against receiving deposits of third persons and not applicable to deposits' of funds held by the bank itself. Carcaba v. McNair, 5 Cir., 68 F.2d 795, certiorari denied 292 U.S. 646, 54 S.Ct. 780, 78 L.Ed. 1497; cf. Fesenmeyer v. Salt Springs Nat. Bank, 2 Cir., 92 F.2d 599; and see, also, Ticonic Nat. Bank v. Sprague, 1 Cir., 90 F.2d 641, affirmed 303 U.S. 406, 58 S.Ct. 612, 82 L.Ed. 926.
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_judgdisc
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on the abuse of discretion by the trial judge favor the appellant?" This includes the issue of whether the judge actually had the authority for the action taken, but does not include questions of discretion of administrative law judges. 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".
CARPENTER v. UNITED STATES.
No. 7117.
United States Court of Appeals for the District of Columbia.
Argued Oct. 4, 1938;
Decided Nov. 7, 1938.
John Edgar Chadwick and J. Frank O’Brien, both of Washington, D. C., for appellant.
David A. Pine, U. S. Atty., and Roger Robb, Asst. U. S. Atty., both of Washington, D. C., for appellees.
Before GRONER, C. J., and MILLER and VINSON, JJ.
PER CURIAM.
Appellant was indicted for perjury and convicted in the District Court. He seeks a reversal, first, because the trial court refused to declare a mistrial for alleged misstatements of a juror on his voir dire; second, because the court imposed sentence under the District of Columbia perjury statute instead of under the Federal statute.
The facts relied upon to. sustain’the first point are the following: When twelve prospective jurors were in the box, the district attorney arose and stated to them that the defendant was represented by Mr. Ehrlich and Mr. Burnett; that the government was represented by himself and Mr. Jackson; and that the government expected to call ■.witnesses whom he would ask to stand as he called th'eir names. He then called the names of numerous witnesses and, turning to the jury box, said, “I will ask you wheth■er you know any of the people whose names I have called, including Carpenter, the defendant; and any of the witnesses, or any of the people who are involved in the case in which the perjury is charged to have been committed?” There was no response. After a jury had been selected and impaneled and a considerable portion of the evidence for the government heard, counsel for defendant went to the bench and in the presence of counsel for the government asked the court to declare a mistrial and continue the case on the ground that a juror, Kaufman, knew and was known to them and had testified some four or five years previously in a case in which one of them had sought to impeach Kaufman’s veracity. Both of counsel stated that when the jury was selected, they did not recognize the juror as the witness in the former case, and were not sure of his identity until the midday recess. Counsel did not then allege or attempt to show any bias on the part of the juror against either counsel or defendant, nor was there anything to show that the juror had recognized counsel any more than counsel had recognized him. On the showing made Judge Adkins denied the motion.
There was a verdict of guilty, and on a motion for a new trial, based on the same grounds, the juror was called for examination. He testified that when sworn as a juror he had no recollection of the former case; that only upon having his mind refreshed did he recall having met the attorneys for the defendant at or about that time, but that he did not consider that he knew cither of them; that he had never had any business dealings or' transactions with either; and that he did not understand the question .asked upon his examination as requiring him to make an affirmative reply, since he knew the attorneys only as he would know any lawyer who appeared in court; and that neither the case which was tried in 1933 nor anything else had caused him to have any hard feelings or prejudice against either of counsel.
We think the trial judge was right .in refusing to set aside the verdict and grant a new trial. Obviously, the fact that a juror may know counsel is not of itself sufficient ground to challenge him for cause. Nor is the fact that a juror was involved with counsel in litigation a sufficient ground. On the other hand, of course, it is the duty of every juror to answer questions affecting his qualifications honestly, and if he conceals a material fact which, if disclosed, would probably have induced- counsel to strike him from the jury, a new trial should ordinarily be ordered. But that is not this case. Here there is no evidence to show that the juror purposely failed to answer the questions of counsel or that he deliberately concealed his acquaintance with them. The opportunities of counsel to know the juror were equal to those of the juror to know counsel, and so far as appears neither recognized the other-.
In view of the facts as outlined above and the lack of showing of bias or prejudice, we think the motion for new trial was properly overruled; and since we have already passed upon the other point adversely to the appellant, in the companion case of O’Brien v. United States, 69 App.D.C. 135, 99 F.2d 368, certiorari denied 59 S.Ct. 95, 83 L.Ed. ___, there is nothing further to consider, and the judgment consequently is affirmed.
Affirmed.
Question: Did the court's ruling on the abuse of discretion by the trial judge favor the appellant? This includes the issue of whether the judge actually had the authority for the action taken, but does not include questions of discretion of administrative law judges.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_direct1
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for 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.
HARTFORD FIRE INSURANCE COMPANY, Plaintiff-Appellee, v. Leda HERRALD, as administratrix of the Estate of Hoyt W. Herrald, Deceased, and Leda Herrald, Individually, Defendant-Appellant.
No. 71-1997.
United States Court of Appeals, Ninth Circuit.
Aug. 13, 1973.
Haig A. Harris, Jr. (argued), of Scampini, Mortara & Harris, San Francisco, Cal., for defendant-appellant.
Augustus Castro (argued), Paul A. Renne, Thomas A. H. Hartwell, of Cooley, Crowley, Gaither, Godward, Castro & Huddleson, San Francisco, Cal., for plaintiff-appellee.
Before CHAMBERS and TRASK, Circuit Judges, and TAYLOR, District Judge.
The Honorable Fred M. Taylor, Senior Judge of the United States District Court for the District of Idaho, sitting by designation.
PER CURIAM:
Hartford brought this action for a declaratory judgment that it had no liability on a homeowner’s policy and on a scheduled/valued policy, both of which were issued to the Herralds. The Her-ralds had filed claims for losses due to theft from their home of several art objects and other items. Hartford claimed no liability because of failure of the Herralds to make certain disclosures in their applications for insurance and for failure of the Herralds to cooperate with counsel for Hartford after the claims had been made. The Herralds counterclaimed for the amounts of the policies and for damages.
After trial to a jury, the jury rendered a general verdict against the Her-ralds on their counterclaim. . The jury also answered several interrogatories submitted by the judge, on the basis of which answers the judge entered judgment in favor of Hartford on the declaratory judgment action. Mrs. Herrald, representing herself and the estate of Mr. Herrald, who died during the pen-dency of this case, has appealed.
The Herralds were entitled to a jury, if timely demanded, under Beacon Theatres v. Westover, 359 U.S. 500, 79.S.Ct. 948, 3 L.Ed.2d 988 (1959), since they would have been so entitled if they had initiated the action. They did make timely demand. There is confusion in the record whether on the declaratory judgment questions the trial court treated its interrogatories as addressed to an advisory jury under Rule 39 F.R.Civ.P. or as addressed to the jury as the fact-finder under Rule 49 F.R.Civ.P. We decline to attempt to unravel this confusion. The jury found against the Herralds in a general verdict on the counterclaim. The questions on the counterclaim were so close to identical to the questions on the declaratory judgment that there was no denial of the right to jury trial; and there was no prejudice to the Herralds in the handling of the interrogatories.
The court did not abuse its discretion in the manner in which it chose to deal with the objectionable conduct of counsel for Hartford.
The judgment is affirmed.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
|
songer_respond1_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 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.
Jane Greer KELLY, Plaintiff-Appellant, v. GREER STEEL COMPANY, Defendant-Appellee.
No. 14829.
United States Court of Appeals Sixth Circuit.
Nov. 15, 1962.
William H. Arkin, Washington, D. C., for appellant.
Richard F. Stevens, Cleveland, Ohio, (J. Richard Hamilton, Cleveland, Ohio, and Albert B. Arbaugh, Canton, Ohio, on the brief; Baker, Hostetler & Patterson, Cleveland, Ohio, Black, McCuskey, Souers & Arbaugh, Canton, Ohio, of counsel), for appellee.
Before CECIL, Chief Judge, McAL-LISTER, Circuit Judge, and DARR, Senior District Judge.
PER CURIAM.
The plaintiff-appellant, Jane Greer Kelly, brought an action in the United States District Court for the Northern District of Ohio, Eastern Division, to recover from the defendant-appellee, Greer Steel Company, dividends on stock of said company which she claims to own. The parties will be referred to as plaintiff and defendant.
The plaintiff alleges in her complaint that she owns shares substantially in excess of twenty-eight, but she does not know the exact number or the aggregate amount of unpaid dividends. She admits the receipt of dividends on twenty-eight shares.
The trial judge granted summary judgment for the defendant and the plaintiff appealed.
The records of the company show that Agnes Jane Reeves Greer, mother of the plaintiff, endorsed stock certificates 19, 22, 23, 24 and 25, “my daughter Jane Greer Ráese.” Certificates numbered 20 and 21 were endorsed “my daughter Jane Greer.” Beneath each of these endorsements is a typewritten statement as follows: “The above transfer having been supplied in error, request is hereby made for the reissuance of the indicated shares in my name as registered owner. December 5, 1952.” The endorsements were signed “Agnes J. Reeves Greer.” These certificates represented 2480 shares and they were cancelled December 5, 1952. New certificates were issued to Mrs. Greer for 2355 shares. The balance of 125 shares were issued to plaintiff, her children and former husband.
Certificates 19 to 25, from the time the endorsement was placed on them, until they were sent in to the company for reissue, were continuously in the possession of Mrs. Greer. At the time she placed the endorsement on the certificates, she thought she might precede her husband in death and she was apprehensive that he would leave all of his property to an educational institution. She told no one of the endorsement and sealed them in an envelope and placed them in her safety deposit box with a statement that in the event of her death they were to be delivered to her daughter.
After her daughter’s first marriage she added the name Ráese to all of the certificates, except 20 and 21. It was an oversight that these were missed. She then resealed them in an envelope and again placed them in the safety deposit box with the same instructions.
There was never any delivery of these certificates, either actual or constructive, to the plaintiff by her mother, nor was there any intention, on the part of the mother, to ever have them delivered to the plaintiff during the mother’s lifetime. The undisputed evidence before the Court disclosed that the plaintiff had no support for a claim of ownership, either legal or equitable, to the certificates in question.
We conclude that the pleadings, depositions, affidavits and stock record of the company, all before the Court at the time the motion for summary judgment was granted, conclusively show that there was no genuine issue as to any material fact and that the defendant was entitled to judgment.
The judgment of the District Court is affirmed.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case?
A. agriculture
B. mining
C. construction
D. manufacturing
E. transportation
F. trade
G. financial institution
H. utilities
I. other
J. unclear
Answer:
|
songer_respond1_1_4
|
F
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "financial institution". Your task is to determine what subcategory of business best describes this litigant.
UNITED STATES of America, Plaintiff-Appellant, v. HOUSEHOLD FINANCE CORPORATION, HFC American, Inc., and American Investment Company, Defendants-Appellees.
No. 79-1313.
United States Court of Appeals, Seventh Circuit.
Argued May 31, 1979.
Decided Aug. 10, 1979.
Rehearing and Rehearing En Banc Denied Sept. 13, 1979.
Bruce E. Fein, Dept, of Justice, Washington, D. C., for plaintiff-appellant.
George D. Rey craft, New York City, for defendants-appellees.
Before SWYGERT, Circuit Judge, GEW-IN, Senior Circuit Judge, and SPRECHER, Circuit Judge.
Walter P. Gewin, Senior Circuit Judge of the United States Court of Appeals for the Fifth Circuit, is sitting by designation.
SPRECHER, Circuit Judge.
The issue raised by this appeal is whether the business of making direct cash loans by finance companies is a line of commerce within the meaning of section 7 of the Clayton Act, 15 U.S.C. § 18. More specifically, the issue is whether finance companies effectively compete with other financial institutions, e. g., banks, credit unions, and savings and loan associations, in the extension of loans. The district court found that personal loans from finance companies do not constitute a separate line of commerce. We hold, however, that the district court in reaching this conclusion both incorrectly applied legal standards and made clearly erroneous findings of fact. Accordingly, we reverse.
I
On January 9, 1979, the United States filed a civil action against Household Finance Corporation (HFC), one of its subsidiaries, and American Investment Company (AIC). The complaint alleged that a proposed merger between HFC’s subsidiary and American Investment Company would violate section 7 of the Clayton Act, 15 U.S.C. § 18. This violation was premised on the fact that the proposed acquisition would allegedly lessen substantially competition in the making of “direct cash loans” by finance companies in numerous sections of the country.
On February 5 the parties agreed to the following stipulation for the purpose of narrowing the issues to be tried.
1. The only issue to be tried in this case is whether the business of making direct cash loans by finance companies is a line of commerce within the meaning of § 7 of the Clayton Act.
2. If the court finds that the business of making direct cash loans by finance companies is a line of commerce in the United States generally, the acquisition of AIC by HFC would constitute a violation of § 7 of the Clayton Act in various sections of the country and a permanent injunction against the acquisition of any stock in AIC by HFC directly or indirectly should be entered.
3. Such injunction should require divestiture of the existing stock ownership in AIC by HFC and prohibit the acquisition of any finance company assets of AIC by HFC directly or indirectly without the approval of the Department of Justice or of the court.
4. If the court finds that the business of making direct cash loans by finance companies does not constitute a line of commerce in the United States generally, the acquisition of AIC by HFC would not constitute a violation of § 7, and an order of the court dismissing this action should be entered.
The issues having been thus narrowed, the district court conducted a 13-day trial. During this trial testimony was introduced from various government officials who regulate financial institutions, executives and managers of financial institutions, and professional economists. The district court then made its findings of fact and concluded that the making of direct cash loans by finance companies was not a separate line of commerce.
The district court opinion begins by conceding that at one time consumer finance companies served a distinct consumer population consisting of “a lower-income and higher-risk consumer market than [was served by] the commercial banks, savings and loan associations, and other lending institutions.” However, the district court believed that recent expansions by other institutions in lending activity- with respect to this lower-income, higher-risk group “has created a very substantial overlap of a number of competitors seeking and serving the same consumer market as was once deemed to be the exclusive province of the consumer finance companies.”
Various facts were relied on by the district court in support of this conclusion. First, the court cited statistics demonstrating the increasing involvement of commercial banks, credit unions, and savings and loan associations in the consumer installment market. Whereas the finance company market share, based on dollar amount of loans, decreased between 1967 to 1978 from 30.9 percent to 19.6 percent, the market share of banks increased from 41.7 percent to 49.9 percent and the market share of credit unions increased from 11.3 percent to 16.8 percent. The court also cited figures which, after adjustment for inflation, showed that real dollar amounts of bank credit during this period increased 99.8 percent; of finance company credit, 5.8 percent; and of credit union credit, 147.9 percent. The court sought to explain these alterations in market shares by finding that consumers were increasingly aware of interest rates, thereby giving a competitive advantage to lower-cost forms of credit.
Next, the court analyzed the competitive inroads made on consumer finance company business by credit cards and credit unions. Although the court made no findings as to how many customers of consumer finance companies could obtain, or had obtained, credit cards on which there were sufficient balances to meet the consumer’s credit needs, the court found that these cards have had a “major” impact on the credit market and have served as “the vehicle for permitting commercial banks to move aggressively into the consumer credit market . .” Further, the court found that obtaining cash advances through credit cards was more convenient than, and a substitute for, obtaining a cash loan from a finance company. As to credit unions, the court found that they have experienced “impressive” growth and have been effective competitors with finance companies because of their lower rates as well as their ability to utilize payroll deductions. The court further found, however, that as much as 50 percent of the population had no access to credit unions.
The court then proceeded to find that, in terms of several general indicia, finance company loans and bank loans were becoming increasingly similar. The average amount of finance company loans was found to be increasing while the higher average amount of a bank loan was decreasing. Likewise, finance company delinquency and charge-off rates were declining while the lower bank rates were increasing. Interest rates were said to be converging as well. Further, the credit scoring systems used by banks and finance companies to» determine loan eligibility overlap so that “finance companies in the main do not have higher or lower credit standard [sic] than other types of financial institutions.” The court also found a “substantial overlap between customers of finance companies and credit unions, thrift institutions, and retailers.”
Finally the district court relied on findings by government agencies that banks and finance companies compete. Both the Federal Reserve Board and the Justice Department have taken the position in evaluating bank-finance company mergers that banks and finance companies compete.
Based on these findings the district court concluded that the making of direct cash loans by finance companies was not a line of commerce within section 7 of the Clayton Act. Thus, under the terms of the stipulation, the proposed merger would not have an anticompetitive effect. Accordingly, the district court dismissed the complaint.
II
Although the district court did not explicitly set out the legal standard by which it should be determined whether the business engaged in by finance companies is a distinct line of commerce, it is clear what that standard should be. The Supreme Court has repeatedly held that a financial institution comprises a separate product market if it offers to a “significant” number of consumers a “cluster of products and services” that competing financial institutions do not. United States v. Connecticut National Bank, 418 U.S. 656, 664, 94 S.Ct. 2788, 41 L.Ed.2d 1016 (1974); United States v. Phillipsburg National Bank, 399 U.S. 350, 360, 90 S.Ct. 2035, 26 L.Ed.2d 658 (1970); United States v. Philadelphia National Bank, 374 U.S. 321, 356-57, 83 S.Ct. 1715,10 L.Ed.2d 915 (1963). Thus, for example, Connecticut National Bank concluded that banks were a separate line of commerce because they could provide services to commercial customers more effectively than savings and loan associations. The factors supporting this conclusion were the overwhelming dominance of banks in the commercial loan market (1 billion dollars versus 26 million dollars) and the inability of savings and loan associations, even under pending legislation, to offer checking accounts to commercial customers. 418 U.S. at 664-66, 94 S.Ct. 2788. Accordingly, if, as the government alleges, finance companies provide loans, counseling and other financial services to lower-income, higher-risk customers which other financial institutions do not, the standards set out by the Supreme Court would compel a finding that cash loans by finance companies constitute a line of commerce within the meaning of section 7. Furthermore, Phillipsburg National Bank and Connecticut National Bank made it clear that the fact that banks and other financial institutions compete with finance companies in the provision of other services, such as the extension of loans to moderate or low risk consumers, is not relevant to the inquiry here. These other service areas may be relevant “in analyzing the effect on competition between a commercial bank and another type of financial institution,” Phillipsburg National Bank, 399 U.S. at 360, 90 S.Ct. at 2041, but in determining the effect of competition in mergers of one type of institution, it is the effect in any area of unique services that must be considered. Phillipsburg National Bank, 399 U.S. at 360-61, 90 S.Ct. 2035; Connecticut National Bank, 418 U.S. at 663 n.3, 94 S.Ct. 2788.
It should also be noted, as an introductory matter, that, although the Supreme Court may not have fully considered and finally concluded the matter, it has stated in two of the cases cited above that banks do not compete with finance companies in the extension of cash loans. Thus, in Philadelphia National Bank the Court declined to include banks and finance companies in the same market. The Court stated:
Some commercial banking products or services are so distinctive that they are entirely free of effective competition from products or services of other financial institutions; the checking account is in this category. Others enjoy such cost advantages as to be insulated within a broad range from substitutes furnished by other institutions. For example, commercial banks compete with small-loan companies in the personal-loan market; but the small-loan companies’ rates are invariably much higher than the banks’, in part, it seems, because the companies’ working capital consists in substantial part of bank loans.
374 U.S. at 356, 83 S.Ct. at 1737-1738. This passage was cited with approval in Phillipsburg National Bank, 399 U.S. at 361 n.4, 90 S.Ct. 2035. The record before us substantiates that banks continue to offer loans at a lower cost than finance companies, thus making currently applicable the Supreme Court’s finding that personal loans made by banks are “insulated” from competition by finance companies and that the two thus constitute separate product markets.
Applying the “unique product or service” standard, an examination of the record before us further supports the conclusion that the extension of cash loans by a finance company constitutes an independent line of commerce. We note first that very few of the district court’s findings affect this conclusion. Most of the district court findings merely indicated a trend for banks to increase their loan activity with respect to some customers who formerly had been serviced only by finance companies. As was made clear in Connecticut National Bank, a trend towards an overlap in services in and of itself is not sufficient to support a finding that sufficient overlap currently exists to preclude a finding that one type of institution offers a “unique cluster of products and services.” Thus, although we do not dispute the district court’s findings of increasing market shares of banks, savings and loan associations, and credit unions or of converging interest rates, write-off rates and loan amounts, we do not believe these findings to be legally sufficient to support a conclusion that finance companies are not engaged in a distinct line of commerce.
Only one finding was made by the district court that would satisfy the “unique service” standard. The district court stated:
Although it may have been true in the past, statistics today demonstrate that there is no significant market segmentation on the basis of risk with regard to the making of loans by various types of financial institutions . . . . Finance companies, banks, and credit unions all use substantially the same criteria in making credit decisions, and finance companies in the main do not have a higher or lower credit standard than other types of financial institutions. Neither do finance companies lend to any significant percentage of their customers who would be ineligible to borrow from other types of institutions. An analysis of several studies available in the field reveals that significant percentages of finance company borrowers are eligible for or actually have non-mortgage loans at banks, that the majority of customers of consumer finance companies have bank credit cards.
We believe, however, that the district court erred as a matter of law in concluding that no significant market segmentation exists.
The thrust of the district court’s conclusion, thus, is that although eoncededly some customers are uniquely served by finance companies, the number of such customers is insignificant. Obviously evaluating this conclusion is made difficult by the failure of the district court to specify precisely how large that group is or to detail the bases on which it concluded that this group is insignificant. Examining the record we find only the following bases for such a conclusion: two multivariate analyses of risk characteristics of bank and finance company customers, a comparison of several bank and finance company credit scoring systems, opinion testimony by bankers and finance company officials concerning credit practices, and figures showing the number of finance company customers with various types of bank credit. We will examine each of these bases in turn.
First, the defendants introduced at trial two multivariate analyses of the risk characteristics of a sample of individuals who were borrowers at éither banks or consumer finance companies. In these analyses the authors examined several hypothesized variables of risk and attempted to determine if those variables were correlated with whether the individuals in the sample borrowed from a bank or a finance company. Based on that analysis a model was derived which would predict whether a given borrower, depending on his risk characteristics, was a borrower from a bank or a consumer finance company. That model was then applied to the sample from which it was derived to determine how well it would classify the sample members. In both studies, the authors noted some difficulty with the ability of such an equation to accurately classify members as bank or finance company borrowers. Neil Murphy, author of one of the studies, merely testified’ that the equation was “not able to classify the borrowers into categories terribly well.” Tr. 1508. Gregory Boczar testified that when his model equation predicted that a sample member was a bank debtor, it would be right nine out of ten times. However, when his equation predicted that a sample member would be a finance company debtor it would be right only one out of three times. (Tr. at 1126-28). Both authors therefore concluded that there was no risk segmentation by banks and finance companies.
We do not believe that these studies support the proposition that there is not a significant class of consumers whose only alternative in the credit market is a consumer finance company. Certainly, the Boczar study demonstrates that a large number of consumer finance customers, specifically two-thirds, have risk characteristics which appear to make them theoretically eligible for bank loans. However, such a conclusion necessarily entails the related conclusion that one-third of those customers have characteristics which suggest that they would probably not be bank customers. Thus, this study does not negate the existence of a group of consumers whose credit needs are exclusively met by finance companies.
Indeed, we do not understand Mr. Boczar’s conclusion that no market segmentation exists to negate the existence of this group given his definition of market segmentation. In his study, Mr. Boczar states that market segmentation hypothesis as follows: “[b]anks supposedly serve low-risk borrowers while finance companies cover the high-risk borrowers.” Thus after having found that finance companies contain a substantial number of low-risk borrowers in their customer base, Boczar appropriately rejected the market segmentation hypothesis. Boczar admitted that his rejection of the market segmentation hypothesis was largely premised on the mutual accommodation of low-risk customers by both banks and finance companies: “the results showed that there was substantial overlap in borrower characteristics between the two industries, largely due to the fact that finance companies served borrowers whose risk-related characteristics . . were similar to . [those] of bank borrowers.” (HX 2300). Thus, Boczar’s rejection of market segmentation does not entail a conclusion that certain higher-risk customers remain exclusively tied to finance companies.
The Murphy study also does not support the position that there is no group of borrowers uniquely served by finance companies. The sample involved in this study was a group of borrowers in Maine that had previously been accepted for loans by finance companies but because of changes in Main law were not given loans by these companies. Murphy’s study then sought to determine whether postulated risk characteristics would predict whether these borrowers would ultimately be accommodated by another lending institution. The analysis proved that there was a statistically significant difference in the risk profiles between those customers able to receive loans and those that were not. This, of course, means that for statistical purposes the groups were not completely identical. Murphy, however, concluded that there was an extreme overlap between the group because he was only able to predict unsuccessful borrowers 64 percent of the time and successful borrowers 52 percent of the time. Nonetheless, these figures demonstrate that for unsuccessful borrowers almost two out of three had risk characteristics that predicted they would be unable to get a loan. Admittedly, these risk characteristics are less helpful in determining which borrowers will be successful, but this only means that financial institutions will not necessarily accommodate customers simply because they are low-risk. It is, for the purpose of our market analysis, only important that the study shows that previous finance company customers possessed risk characteristics making it unlikely that they would receive a loan from an institution.
The second possible basis for the district court’s conclusion was a study comparing credit-scoring systems. The defendants introduced a study in which recent applicants for loans from Household Finance were evaluated under the credit scoring system of the Security Pacific Bank and the VISA division of the First National Bank of Chicago. That study showed that 56 percent of the accepted HFC applicants would have satisfied the credit scoring requirements of Security Pacific and 35 percent would have satisfied the requirements of VISA. Of the declined applicants, 49 percent would have been acceptable to Security Pacific, whereas 28 percent would have been acceptable to VISA. (Tr. 1789-91). This study, however, runs directly contrary to the defendant’s position: 65 percent of those able to obtain loans at Household Finance apparently would be unable to receive a VISA card from the First National Bank of Chicago, and slightly under one-half would have been able to obtain loans from Security Pacific. Even though this study shows some overlap between credit standards, it nevertheless also shows a significant number of customers who would be served only by finance companies.
The third basis for the district court’s conclusion was opinion testimony that banks and finance companies apply the same credit standards. Two bank officials from Pennsylvania banks testified that they believed that their banks applied the same credit standards as finance companies, although neither, of course, could testify as to how many other banks utilized similarly liberal standards. Indeed there was testimony from an executive vice-president of the First National Bank of Chicago that his bank’s cash loan program was principally directed at executives and professionals (Tr. 1402) and that his bank had recently tightened its credit card operations to include only those eligible for $1,000 credit limits, thereby excluding people previously eligible for credit. (Tr. 1374, 1390). The defendants also introduced testimony from the chief executive officer of Beneficial Finance Company that his company was applying similar standards as other financial institutions, but even he was forced on cross-examination to admit that some customers are relegated to finance companies as their only source of loans. (Tr. 1305).
Finally, the court also attempted to support its conclusion that there was no risk segmentation among financial institutions by finding that a significant percentage of finance company customers are eligible for or actually have non-mortgage loans at banks and that a majority of the customers of consumer finance companies have bank credit cards. Even accepting these findings on their face, they have little bearing on whether risk segmentation exists. Even if a “significant” percentage are eligible for bank loans, the remainder — conceivably also a “significant” percentage — are not. Similarly by the terms of these findings up to 50 percent of consumer finance company customers do not possess any bank credit cards.
Notwithstanding that these findings are not relevant to whether these are indeed high-risk customers served only by finance companies, we cannot find support for these statements in the record. The defendants introduced a study of recent HFC applicants in a Chicago loop office which showed that of 50 accepted applications, only 36 percent had outstanding bank loans of any kind, only 14 percent had loans from credit unions and that none had any loans from savings and loan associations. A similar study by the defendants on a nationwide sample of 426 customers showed that more than 75 percent of accepted HFC customers did not have bank credit other than auto loans and that approximately 70 percent did not have even auto loans. Likewise, only about 25 percent of the accepted customers had loans from credit unions and less than 3 percent had loans from savings and loan associations. (HX 209; Defendant’s App. at 186). The chief executive officer of Beneficial Finance, another defense witness, testified that only 27.2 percent of Beneficial customers had loans from a bank and 16.4 percent had loans from credit unions. (Tr. 1317). The final evidence on this matter was the testimony by an officer of the target company in this case, American Investment Company, that 50 percent of American’s customers had bank credit and that at least 15 percent of those without such credit would not even obtain that credit under any circumstances. (Tr. 1620-21). These figures do not support the district court’s finding that finance companies do not lend to a significant percentage ineligible to borrow from other types of institutions, since even accepting the American executive’s admitted speculation that at least 15 percent of those without bank loans could not obtain them, this still concedes the existence of a cognizable number of borrowers relegated to consumer finance companies.
The district court’s finding that a majority of consumer finance customers had bank cards is even more difficult to support. There was evidence that 80 percent of the customers at one office had bank cards; however nationwide HFC figures showed that only 32 percent of Household’s customers had bank cards. (HX 209). Likewise, only 32 percent of Beneficial Finance customers have bank cards. (Tr. 1318).
Not only was the evidence of non-segmentation inadequate, but also the record contained overwhelming evidence that risk segmentation does in fact exist among financial institutions. This evidence took three forms: studies of eligibility of finance customers for bank loans, varying charge-off and delinquency rates between banks and finance companies, and studies of the demographics of borrowers at both institutions.
We turn first to the four eligibility studies that were introduced. Dr. William Whitesell, an economics professor and former Federal Reserve Board economist, testified that he had done a study for a commercial bank seeking to acquire a finance company and found that 60 percent of the finance company customers would not have qualified for a loan at the bank considering the acquisition. (Tr. 115). An executive vice-president of CitiCorp testified that his examination of the files of 175 customers of Nationwide Finance Company, a subsidiary of CitiCorp, revealed that only 46 percent of them would be eligible for a loan from CitiBank, another subsidiary of CitiCorp. A study of Texas finance company borrowers, made by two economics professors revealed that, among the borrowers of small amounts, 25 percent had been refused loans by banks and 20 percent had been asked for too much collateral. (Tr. 486). Among the remaining borrowers, 30 percent replied that they had been refused by banks or that the banks required too much collateral. The government also introduced a follow-up study on borrowers in Maine that had been accepted by finance companies for loans but later refused these loans because of a subsequent change in Maine law. Of those borrowers, 50 percent never received a loan from any source and only one-third of those who received loans (or about 16 percent of the entire sample) received a loan from a bank. Finally, it should be recalled that even the two defense studies, which we discussed earlier, lend some support to the conclusion that at least one-third of finance company customers have risk characteristics which suggest that they would be ineligible for bank loans. Thus, all these studies give a concrete demonstration of the existence of a significant class of borrowers, ranging from 20 to 50 percent of all finance company customers, who are able to obtain loans only from finance companies.
Evidence of delinquency and chargeroff rates at banks and finance companies further supports a finding that finance companies offer services to a unique strata of higher-risk customers that are not serviced by commercial banks. The testimony at trial was unequivocal and uncontradicted that finance companies charged off somewhere around 2 percent of their loans in terms of total dollars outstanding whereas banks charged off approximately 0.7 to 0.8 percent of their personal loans. (Tr. 1055). Several witnesses testified that this differential indicates that consumer finance companies serve some customers that are a higher risk than those served by banks.
Finally, support for the existence of risk segmentation can be found in demographic studies conducted by the defendants. The defendants introduced evidence that showed that whereas the average income of those borrowers who exclusively used banks were $14,260, the average income for exclusive customers of finance companies was $9,050. Further, only 19.3 percent of consumer finance company customers were white collar, whereas white collar workers comprised 37.3 percent of bank borrowers. Conversely, only 17.5 percent of bank borrowers were blue collar, as opposed to 28.7 percent of consumer finance borrowers. (Tr. 832-33).
In summary, we conclude that the record below supports the proposition that finance companies offer unique products and services to a class of higher-risk customers than are serviced by other financial institutions. All the evidence suggested that these customers constituted anywhere from 15 to 50 percent of the finance company clientele. The district court never disputed these figures or suggested that they were lower. Indeed, even if these customers constituted a far lesser percent of the finance company clientele, we would still find that group significant. Thus, the finding of the district court that finance companies do not have a significant unique clientele was erroneous, and accordingly the judgment below must be reversed.
Reversed.
. The court did erroneously find, see pp. 1260, 1262-1263, that a majority of the customers of consumer finance companies possessed bank credit cards. However, it did not find what portion of those cards had sufficient remaining balances.
. The availability of loans to high risk consumers has been explicitly recognized by the Supreme Court as a unique service:
For some customers, full-service banking makes possible access to certain products or services that would otherwise be unavailable to them; the customer without significant collateral, for example, who has patronized a particular bank ... is more likely to be able to obtain a loan from that bank .
Phillipsburg Nat’l Bank, 399 U.S. at 360, 90 S.Ct. at 2042.
. Thus the Federal Reserve Board, the Comptroller of the Currency and the Justice Department have considered competition in these overlapping markets when analyzing the effects of mergers between different types of financial institutions, e. g., between banks and financial institutions. (HX 181, 255, 264, 299). In such mergers it is obvious that the important inquiry revolves around concentration in jointly provided services, since any lessening of competition will occur, if at all, only in those areas. It is this confusion about which sub-markets to consider which underlies most of the district court’s position that finance companies are not a distinct line of commerce because at least with respect to many customers finance companies and other financial institutions in fact “compete.”
. The Court further elaborated this position in a footnote:
As one banker testified quite frankly in the instant case in response to the question: “Do you feel that you are in substantial competition with these institutions [personal-finance and sales-finance companies] that you lend * * * such money to for [sic] loans that you want to make?” — “Oh, no, we definitely do not. If we did, we would stop making the loans to them.” (R. 298.) The reason for the competitive disadvantage of most lending institutions vis-á-vis banks is that only banks obtain the bulk of their working capital without having to pay interest or comparable charges thereon, by virtue of their unique power to accept demand deposits.
374 U.S. at 356 n.33, 83 S.Ct. 1738.
. The National Commission on Consumer Finance found that the average interest rate charged by consumer finance companies was 26 percent, whereas 13 percent was the average rate for banks. (Tr. 625). No testimony was offered at trial to rebut these figures.
. As the Court stated in Connecticut National Bank:
To be sure, there is a large measure of similarity between the services marketed by the two categories of banks. In our view, however, the overlap is not sufficient at this stage in the development of savings banks . to treat them together with commercial banks . . . . Despite the strides that savings banks . . have made toward parity with commercial banks, the latter continue to be able to provide a cluster of services that the former cannot
418 U.S. at 663-64, 94 S.Ct. at 2793-94.
. The defendants in their brief to this court characterize this conclusion as a “finding of fact” and argue that the district court may be reversed only if we find this conclusion to be clearly erroneous. We think, however, that whether the group of customers uniquely served by finance companies is significant enough to constitute a line of commerce within § 7 is a legal question. Certainly, the Supreme Court treated this as a legal question in Connecticut National Bank when it concluded simply that “the District Court overestimated the degree of competitive overlap . . 418 U.S. at 656, 663, 94 S.Ct. at 2793.
. Both of these studies also appear seriously flawed in another respect. Obviously it is important that all major risk characteristics be utilized in the model, otherwise the predictive value of the model will be diminished and the degree of overlap between finance company and bank customers will be exaggerated. Boczar admits this in his study (HX 200 at 246), and Murphy conceded as much in his testimony at trial. (Tr. at 1547). Both studies left out a number of important risk variables. Neither included the borrower’s total outstanding indebtedness, a factor which Boczar indicated would have been helpful. (HX 200 at 249 n.8). Additionally, the Murphy study excluded the following risk variables: time on job, time in community home ownership, rent and mortgage payments. The evidence in this case clearly demonstrated that all these factors were frequently used in credit scoring models used by financial institutions themselves to measure risk.
. This was the figure given at trial. Our examination however, of the exhibit on which this testimony was based reveals that this figure was erroneous. HX 210 showed that only 27 of 50 accepted Household customers, or 54 percent, had bank cards. Further, the office surveyed was located in the Chicago loop with a customer base of office and retail employees, a group that is not likely to be representative of HFC’s entire customer base. (Tr. 1419).
. The rest of our analysis concerns only whether finance companies serve a consumer base which is not served by commercial banks. We have limited this analysis because the record clearly demonstrates that banks are the only substantial alternate source of credit for finance company borrowers. Bank credit cards, as we have found, are not a significant alternative since almost two-thirds of all finance company borrowers do not possess such cards. Likewise, credit unions are not a significant alternative since the district court found, and we accept its finding, that one-half of all consumers do not have access to such an institution. Finally, savings and loan associations are generally restricted by state law principally to loans relating to, and secured by, real estate. The record below illustrated that only a minute percentage of finance company loans fell within this category.
. There was testimony at trial that customers who replied that the bank had required too much collateral had effectively been refused credit since that answer could have indicated that the bank had requested more collateral than the applicant could post. (Tr. 543). In any event, of this 30 percent, half were denied credit regardless of collateral. (Id.).
. Two defense witnesses gave different constructions to the differentials. An executive from Mellon Bank attributed the difference, at least as far as his own bank and its finance company subsidiary were concerned, to lack of experience among finance company officers in granting loans. This does not deny, however, that finance company borrowers, for whatever reason, may turn out to be a greater risk. Gregory Boczar, a defense expert, characterized the difference as follows:
there was a difference, no question about it, and . this is very judgmental, but it was my view that the numbers were not so different as to suggest that commercial banks were only serving the very well to do and the finance companies were just taking the poor fellow who can’t get a loan anywhere else.
The issue, however, is not whether there is a total division between the types of customers of banks and finance companies but whether, notwithstanding any overlap in customer bases, finance companies service some customers unable to obtain bank credit. Mr. Boczar never denied that these figures certainly suggest the latter, less extreme position. Indeed, in one of the articles on which his testimony was based he concludes that “finance companies appear willing to service poorer risk borrowers than banks.” (HX 212). Finally, defense testimony suggested that the charge-off rates exhibit a converging trend. But even that testimony revealed that finance company charge-off rates had declined only to slightly below 2 percent.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "financial institution". What subcategory of business best describes this litigant?
A. bank
B. insurance
C. savings and loan
D. credit union
E. other pension fund
F. other financial institution or investment company
G. unclear
Answer:
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songer_majvotes
|
2
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the number of judges who voted in favor of the disposition favored by the majority. Judges who concurred in the outcome but wrote a separate concurring opinion are counted as part of the majority. For most cases this variable takes the value "2" or "3." However, for cases decided en banc the value may be as high as 15. Note: in the typical case, a list of the judges who heard the case is printed immediately before the opinion. If there is no indication that any of the judges dissented and no indication that one or more of the judges did not participate in the final decision, then all of the judges listed as participating in the decision are assumed to have cast votes with the majority. The number of majority votes recorded includes district judges or other judges sitting by designation who participated on the appeals court panel. If there is an indication that a judge heard argument in the case but did not participate in the final opinion (e.g., the judge died before the decision was reached), that judge is not counted in the number of majority votes.
U.S. DEPARTMENT OF HEALTH & HUMAN SERVICES, SOCIAL SECURITY ADMINISTRATION, BALTIMORE, MARYLAND, Petitioner, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent, American Federation of Government Employees Council 220, Intervenor.
No. 91-1781.
United States Court of Appeals, Fourth Circuit.
Argued June 4, 1992.
Decided Dec. 30, 1992.
Jacob Matthew Lewis, Civ. Div., U.S. Dept, of Justice, DC, argued (Stuart M. Gerson, Asst. Atty. Gen., William Kanter, on the brief), for petitioner.
Frederick Michael Herrara, Federal Labor Relations Authority, DC, argued (William E. Persina, Sol., William R. Tobey, Deputy Sol., on the brief), for respondent.
Stuart Alan Kirsch, Asst. Gen. Counsel-Litigation, American Federation of Government Employees, AFL-CIO, College Park, GA, argued (Mark D. Roth, Gen. Counsel, on the brief), for intervenor.
Before MURNAGHAN and WILLIAMS, Circuit Judges, TILLEY, United States District Judge for the Middle District of North Carolina, sitting by designation.
OPINION
WILLIAMS, Circuit Judge:
The American Federation of Government Employees, Council 220 (Union), brought a grievance against the United States Department of Health and Human Services, Social Security Administration (SSA), alleging unfair labor practices. The Union contended that the Federal Service Labor-Management Relations Statute (Title VII of the Civil Service Reform Act of 1978), 5 U.S.C.A. §§ 7101-35 (West 1980 & Supp. 1992), obligated the SSA to negotiate over a proposed incentive program. An arbitrator determined that the incentive program was not negotiable because of the SSA’s authority under Title VII to determine its own budget. See id. § 7106(a)(1). The Union appealed to the Federal Labor Relations Authority (FLRA), which determined that the incentive program was negotiable and that the arbitrator had failed to consider impact and implementation arrangements under § 7106(b)(2) and (3). The SSA then petitioned this court for review pursuant to § 7123(a)(1). We grant the petition for review and reverse the FLRA's determination that Title VII required the SSA to bargain over its incentive program. We affirm, however, the FLRA’s determination that the arbitrator should have considered impact and implementation arrangements under § 7106(b)(2) and (3).
I
In October 1988, the SSA put into effect a “budget incentive pilot/gainsharing program.” Under this incentive program, money previously budgeted for specific purposes was reallocated as one lump sum for local managers to allocate at their discretion. Fifty percent of any savings achieved at the work site would be returned to the managers and unit employees in the form of monetary rewards; the remainder would revert to the Social Security Trust Fund. The savings generated each year would be factored into the following year’s budget through revised work factors based on the previous year’s productivity. The SSA announced that the program would be put into effect unilaterally and refused the Union’s request to bargain at the national level.
The Union filed a grievance claiming that the SSA had violated the parties’ national collective bargaining agreement and had committed an unfair labor practice under Title VIL The grievance was submitted to arbitration. The arbitrator denied the grievance, holding that, under this court’s decision in Navy Charleston Naval Shipyard, v. FLRA (Charleston), 885 F.2d 185, 187 (4th Cir.1989), Title VII does not require federal agencies to negotiate over an employee incentive program based on gainsharing. The arbitrator “was not prepared to conclude ‘that negotiation at the national Component level is warranted with respect to a gainsharing program’ ” such as the SSA had proposed. American Fed'n of Gov’t Employees Council 220, 41 F.L.R.A. (No. 21) 224, 227 (June 13, 1991) (quoting from arbitrator’s ruling). The arbitrator further held that “nothing in this decision is intended to relate in any manner whatsoever to whatever bargaining obligation or grievance rights ... may exist at the local level.” Id.
The FLRA reversed, holding that: (1) the arbitrator's decision was inconsistent with FLRA precedent; and (2) the arbitrator had failed to address the SSA's obligation to bargain over impact and implementation arrangements as required by § 7106(b)(2) & (3) when a federal agency changes an employee’s conditions of employment. Id. at 233.
II
Title VII grants federal employees the right “to engage in collective bargaining with respect to conditions of employment.” 5 U.S.C.A. § 7102(2). Title VII, however, excludes a number of subjects from negotiation, including several “management rights” enumerated in § 7106. Specifically, § 7106(a) provides that “nothing in this chapter shall affect the authority of any management official of any agency—(1) to determine the ... budget ... of the agency.”
In American Fed’n of Gov’t Employees, AFL-CIO, and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio (Wright-Patterson), 2 F.L.R.A. (No. 77) 604 (Jan. 31, 1980), enf'd on other grounds sub nom. Department of Defense v. FLRA, 659 F.2d 1140 (D.C.Cir.1981), cert. denied, 455 U.S. 945, 102 S.Ct. 1443, 71 L.Ed.2d 658 (1982), the FLRA developed a two-prong test to determine whether a union proposal interferes with an agency’s authority to determine its own budget under § 7106(a)(1). Under Wright-Patterson, a government agency need not negotiate over a union proposal if the agency can show that the proposal either (1) “attempt[s] to prescribe the particular programs or operations the agency would include in its budget or to prescribe the amount to be allocated in the budget for them”; or (2) involves “an increase in costs [that] is significant and unavoidable and is not offset by compensating benefits.” Id. at 608. In the present case, the SSA contends that Title VII does not require it to negotiate over its gainsharing program because negotiation would conflict with its budgetary authority as defined in the first prong of the Wright-Patterson test. Neither party suggests that the second prong of the test applies.
FLRA precedent interpreting the first prong of the Wright-Patterson test provides that federal agencies generally must negotiate over gainsharing programs because they involve the distribution of future profits, and therefore do not interfere with budgetary programs that have already been established. American Fed’n of Gov’t Employees Council 220, 41 F.L.R.A. at 230. In the present case, the FLRA applied its precedent to determine that Title VII obligated the SSA to negotiate over its gainsharing proposal. Id. at 232. In Charleston, however, we specifically disagreed with the FLRA’s application of the first prong of the Wright-Patterson test and held that neither the uncertainty of future profits nor the use of percentages rather than actual dollar amounts lessens the impact on an agency’s budgetary prerogative.
Charleston involved a government shipyard’s profit-sharing plan under which employees would receive 50% of profits, and the remaining 50% would be used to fund capital expenditures. Id. at 186. Following the announcement of the plan, the union proposed that 80% of the profits be allocated to employee incentive bonuses, 10% to employee development, and 10% to capital expenditures. Id. We held that the shipyard did not have to negotiate with the union over the profit-sharing plan because negotiations would interfere with the shipyard’s authority to determine its budget. Id. at 188. In so holding, we stated:
The proposal here at issue admittedly is not phrased in terms of an actual dollar amount. It does, however, specify a percentage of the Shipyard’s profits to be distributed to employees. Once those profits become certain, the Council’s proposal will “ultimately dictate a specific dollar amount.” Union proposals, no matter how artfully crafted to avoid specifying dollar amounts today, nonetheless run afoul of the Wright-Patterson test if, once adopted and implemented, such proposals will have the effect of prescribing the use of agency funds in the future.
Id.
In this case, as in Charleston, the percentage of the SSA’s savings to be distributed to its employees will determine the specific allocation of funds to the employees once the savings are realized. Applying Charleston, therefore, we find that Title VII does not require the SSA to negotiate with the Union over the formula used for distributing savings realized through the SSA’s gainsharing program.
Ill
The FLRA asks us to reexamine our holding in Charleston because of an intervening Supreme Court decision. Specifically, the FLRA points out that the panel in Charleston relied upon Nuclear Regulatory Commission v. FLRA (NRC), 879 F.2d 1225 (4th Cir.1989) (en banc), vacated sub nom. National Treasury Employees Union v. United States Nuclear Regulatory Comm’n, 496 U.S. 901, 110 S.Ct. 2579, 110 L.Ed.2d 261, on remand, 924 F.2d 1052 (4th Cir.1990) (vacated the FLRA’s bargaining order and remanded to the FLRA with instructions to dismiss the case as moot). The Supreme Court subsequently vacated our judgment in NRC and remanded for reconsideration in light of Fort Stewart Schools v. FLRA, 495 U.S. 641, 110 S.Ct. 2043, 109 L.Ed.2d 659 (1990).
A decision by a panel of this court, or by the court sitting en banc, does not bind subsequent panels if the decision rests on authority that subsequently proves untenable. Faust v. South Carolina State Highway Dep ’t, 721 F.2d 934, 940 (4th Cir.1983), cert. denied, 467 U.S. 1226, 104 S.Ct. 2678, 81 L.Ed.2d 874 (1984); see Busby v. Crown Supply, Inc., 896 F.2d 833, 840-41 (4th Cir.1990). In evaluating the authority of Charleston, we must consider whether the portion of NRC upon which the panel in Charleston relied, namely the interpretation of the language “to determine the ... budget" in § 7106(a), is consistent with the Supreme Court's opinion in Fort Stewart Schools.
In NRC, a union sought to bargain over a salary proposal for automatic cost of living increases. 879 F.2d at 1227. We held that the NRC did not have to bargain on two alternative grounds: (1) compensation was not a “condition[ ] of employment” under 5 U.S.C.A. § 7102(2); and (2) bargaining over the union’s salary proposal would “interfere with the agency’s right to determine its own budget” under 5 U.S.C.A. § 7106(a)(1). NRC, 879 F.2d at 1228, 1231. On the second point, we reasoned that:
Although the union’s salary proposal does not prescribe a specific dollar amount, it does provide a formula which ultimately will dictate a specific dollar amount to be allocated in the NRC’s budget each time the Advisory Committee on Federal pay recommends a cost-of-living adjustment to Congress and the President. ... The union’s salary proposal would thus clearly “affect” the NRC’s authority to determine its own budget and is therefore nonnegotiable.
Id. at 1232. Although we did not explicitly mention Wright-Patterson in NRC, the discussion clearly relates to the first prong of the Wright-Patterson test.
In contrast to our en banc decision in NRC, the Supreme Court in Fort Stewart Schools held that “conditions of employment” includes compensation. 495 U.S. at 647, 110 S.Ct. at 2047. The Court also held that, because the federal agency failed to prove that the compensation proposal would cause significant and unavoidable increases in cost, it had not satisfied the second prong of the Wright-Patterson test. Id. at 653, 110 S.Ct. at 2050. The Court expressly noted that the agency had not based its challenge to the union proposal in Fort Stewart Schools on the first prong of the Wright-Patterson test. Id. at 651, 110 S.Ct. at 2049. That prong of the test, therefore, was not an issue before the Court. Moreover, because neither party challenged the standard set out in the second prong of the Wright-Patterson test, the Supreme Court expressly limited its decision to finding that the agency had failed to meet its burden of proof. Id. at 653 & n. 3, 110 S.Ct. at 2050 & n. 3.
While Fort Stewart Schools clearly overruled our interpretation of “conditions of employment,” it did not challenge our application of the first prong of the Wright-Patterson test in NRC. Thus, that portion of NRC germane to our decision in Charleston, and to our decision here, is not inconsistent with the Supreme Court’s decision in Fort Stewart Schools.
The FLRA nevertheless urges us not to follow NRC (and, by extension, Charleston ) because of the Supreme Court’s vaca-tur of our judgment. We have reexamined NRC and continue to find its reasoning persuasive. Because we adhere to our interpretation in NRC of § 7106(a)(1), we find no reason to reexamine our holding in Charleston.
IV
The SSA also challenges the FLRA’s determination that the arbitration award was deficient because “the Arbitrator failed to address the obligation to bargain over procedures and appropriate arrangements under section 7106(b)(2) and (3) when an agency changes conditions of employment that constitutes [sic] the exercise of a management right.” 41 F.L.R.A. at 233. Such arrangements are normally termed “impact and implementation arrangements.” See American Fed’n of Gov’t Employees, Local 2441 v. FLRA, 864 F.2d 178, 183 n. 5 (D.C.Cir.1988) (identifying “impact and implementation” as a term of art). We will only set aside the FLRA’s determination if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.” 5 U.S.C.A. § 7123(c) (incorporating 5 U.S.C. § 706(2)(A) (1988)).
The SSA argues that while changes at the local level may require bargaining under § 7106(b), no generalizations regarding the need for bargaining can be made on the national level. Bargaining over impact or implementation arrangements at the national level would therefore serve no purpose. Until implementation proposals are made at the local level, the need for bargaining cannot be addressed.
Although the SSA may well be correct, the FLRA has not disagreed with the SSA’s position. It merely held that the arbitrator had failed to address squarely whether the national or local level is appropriate for bargaining over implementation. Without further development of the record, it is impossible to determine whether the SSA is correct. In these circumstances, we cannot fault the FLRA for finding the arbitration award deficient.
V
In summary, we grant the SSA’s petition for review. We reverse the FLRA and find that the formula the SSA uses to distribute savings realized through its gainsharing program falls within the SSA’s authority to determine its own budget under 5 U.S.C.A. § 7106(a)(1). We affirm, however, the FLRA’s determination that the arbitration award was deficient because the arbitrator failed to consider impact and implementation issues and grant enforcement of that part of the FLRA’s order.
ENFORCEMENT GRANTED IN PART AND DENIED IN PART
. "Gainsharing" is usually used to describe profit-sharing incentive plans used in private industry. See Daniel J.B. Mitchell, Inflation, Unemployment and the Wagner Act: A Critical Reappraisal, 38 Stan.L.Rev. 1065, 1087-89 (1986). The SSA proposal extends this concept to incentive programs used to generate savings in bureaucratic overhead.
. Because we adopt NRC’s reasoning, we do not address the extent, if any, to which NRC continues to have precedential weight. Compare Harris v. Board of Governors, 938 F.2d 720, 723 (7th Cir.1991) (vacatur due to mootness on subsequent appeal does not destroy precedential weight of court’s opinion) with Ridley v. McCall, 496 F.2d 213, 214 (5th Cir.1974) (vacatur destroys precedential value of court’s opinion).
. Section 7106(b) provides in pertinent part: Nothing in this section shall preclude any agency and any labor organization from negotiating—
(2) procedures which management officials of the agency will observe in exercising any authority under this section; or
(3) appropriate arrangements for employees adversely affected by the exercise of any authority under this section by such management officials.
Question: What is the number of judges who voted in favor of the disposition favored by the majority?
Answer:
|
songer_casetyp1_7-2
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation".
ILLINOIS STATE TRUST COMPANY, a Corporation, Guardian of the Estate of Daniel David Land, a Minor, and Arthur Land, Plaintiff-Appellants, v. TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS, a Corporation, Defendant-Appellee.
No. 18534.
United States Court of Appeals, Seventh Circuit.
March 10, 1971.
Rehearing Denied April 5, 1971.
William B. Starnes, Karns, Starnes, Nester & Stegmeyer, Belleville, Ill., for plaintiffs-appellants.
Norman J. Gundlach, Roberts, Gundlach & Lee, Belleville, Ill., for defendant-appellee.
Before SWYGERT, Chief Judge, CUMMINGS and STEVENS, Circuit Judges.
SWYGERT, Chief Judge.
This is an appeal from the granting of defendant’s motion for a directed verdict at the close of plaintiffs’ evidence and the judgment entered thereon in a personal injury action removed to the district court pursuant to 28 U.S.C. § 1441(a) on the ground of diversity of citizenship, the jurisdictional amount-in-controversy requirement having been met. The cause of action arose out of an accident which occurred at the crossing of a public road over defendant’s railroad right-of-way in Cahokia, Illinois, in which a young boy fell under the wheels of a railroad car while attempting to “hop a ride” on defendant’s train, suffering serious injuries.
The facts before the trial court upon which the directed verdict was predicated are as follows. On March 30, 1969, David Land, then seven years of age, and Jimmy Bell, his friend of the same age, decided while playing together to ride Jimmy’s bicycle to a service station in Cahokia “to get a drink.” The two boys then set out for the Cargill Road railroad crossing nearby “to hunt for flares” — that is, to search the tracks for the red pyrotechnic flares sometimes used and carried by railroad men for signalling purposes. The boys were accompanied by “Snoopy,” the Land family’s dog. Jimmy hid his bicycle in the brush, and the two boys walked to the crossing. While they were drawing near to the crossing, defendant’s train came to the crossing and stopped for about a minute so that a switch could be operated by the conductor to properly align the tracks for proceeding in the intended direction. The train then started up again. The two boys were apparently unobserved by any of the train crewmen at that time, although the engineer testified he saw one boy and a dog some distance from the tracks after the train was entirely past the crossing. As the train was passing through the crossing, Jimmy Bell climbed on a ladder at the rear of one boxcar. David Land then attempted to climb on a ladder at the front of the car immediately behind the one Jimmy was riding, but, as David attempted to board the train, “Snoopy,” the dog, barked and jumped at the boy causing him to trip. David fell beneath a railroad car within a few feet of the crossing and suffered serious injuries to his left leg and right foot.
Also before the court was testimony that children had found partially burned flares along the tracks and had been given flares by railroad crewmen from time to time. Several children testified that if they stood near defendant’s tracks at the crossing and elsewhere and called to the crewmen to throw them some flares, their efforts were rewarded more often than not by compliance with their requests. They further testified that the flares were sometimes thrown to them from the engine but more often came from the caboose. There was also testimony that children had hopped rides on trains at the crossing and elsewhere. However, there was no testimony that any of the crewmen on the train involved in this accident had ever given away flares or observed children hopping rides on trains in or near Cahokia. Two crewmen testified that they had observed children playing in the vicinity of the Cargill Road crossing — indeed, the switchman had reported that fact to his supervisor — but there is nothing in the record to indicate that the railroad had knowledge of any fact which would indicate that the Cargill Road crossing was particularly dangerous or that children were playing on the tracks or dangerously close thereto.
Plaintiffs raise two issues on this appeal: (1) did the district court err in denying their motion to remand the cause to the state court from which it was removed and (2) did the district court err in granting defendant’s motion for a directed verdict, considering the foregoing evidence? We affirm the decision of the district court as to both issues.
I
Plaintiffs contend that the district court should have granted their motion to remand the action to the state court from which it was removed because diversity of citizenship between the parties was lacking; hence the district court was without subject' matter jurisdiction. This argument is based on the theory that defendant was a citizen of Illinois for diversity purposes as are all of the plaintiffs. We agree with the district court that the defendant is a citizen of Missouri and that the motion to remand was without merit.
Pursuant to 28 U.S.C. § 1332(c), a corporation, for purposes of diversity jurisdiction, is a citizen of both the state of its incorporation and the state which is the situs of its principal place of business. The evidence shows that the defendant is a Missouri corporation, that its general offices and headquarters are located in Missouri, that its shareholders and board of directors hold all of their meetings in Missouri, that the vast majority of its officers have their offices in Missouri, that all its basic corporate records are kept in Missouri, that all its tax returns are prepared in and filed from Missouri, and that all its banking is conducted in Missouri. It is thus clear that Missouri is the only state of defendant’s citizenship, despite the defendant’s extensive operations in Illinois. Celanese Corp. of America v. Vandalia Warehouse Corp., 424 F.2d 1176 (7th Cir. 1970); Sabo v. Standard Oil Co., 295 F.2d 893 (7th Cir. 1961).
II
Plaintiffs further contend that the trial court’s direction of the verdict against them was erroneous. Although there is disagreement among the circuits as to whether a federal standard for direction of verdicts or a state standard applies in diversity cases, e. g., Boeing Co. v. Shipman, 411 F.2d 365, 368 n. 2 (5th Cir. 1969), it is settled that in this circuit the applicable state standard applies. Wieloch v. Rogers Cartage Co., 290 F.2d 235, 237-238 (7th Cir. 1961). It is undisputed that Illinois law governs this cause of action, and the Illinois standard for direction of verdicts has recently been clarified. As the Illinois Supreme Court stated in Pedrick v. Peoria & E. R. R., 37 Ill.2d 494, 510, 229 N.E.2d 504, 513-514 (1967):
In our judgment verdicts ought to be directed and judgments n. o. v. entered only in those eases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.
Our inquiry thus is directed to a determination of whether a verdict for plaintiffs based on the evidence stated above “viewed in its aspect most favorable to [plaintiffs] * * * could ever stand.” Id.
The claims of the plaintiffs in the instant case are in the nature of what are usually characterized as attractive nuisance cases. However, as the Illinois Supreme Court has recognized:
The naming or labeling of a certain set of facts as being an “attractive nuisance” case or a “turntable” case has often led to undesirable conclusions. The inclination is then to find a stare decisis pigeonhole or category. The difficulty in such a procedure is that too often the result of such a search is the reaching of irreconcilable conclusions. Kahn v. James Burton Co., 5 Ill.2d 614, 624, 126 N.E.2d 836, 841 (1955).
We must, therefore, adhere to the instruction of the Illinois court that “the only proper basis for decision in such cases dealing with personal injuries to children are [sic] the customary rules of ordinary negligence cases.” Id. The court further stated:
[W]here the owner or person in possession [of land] knows, or should know, that young children habitually frequent the vicinity of a defective structure or dangerous agency existing on the land, which is likely to cause injury to them because they, by reason of their immaturity, are incapable of appreciating the risk involved, and where the expense or inconvenience of remedying the situation is slight compared to the risk to the children * * * there is a duty upon the owner or other person in control of the premises to exercise due care to remedy the condition or otherwise protect the children from injury resulting from it. Id. at 625, 126 N.E.2d at 842.
Applying these principles to the facts in this case we agree with the district court that, construing the evidence in the manner most favorable to the plaintiffs, no verdict for plaintiffs could stand based on the submitted evidence.
Principal among the reasons which have led to this conclusion is the fact that we have not discovered any postKahn Illinois case which has held an owner or possessor of land liable where the immediate cause of the injury to a child has not been either the attracting agency itself or some negligence chargeable to the defendant other than the negligence inherent in the creation or tolerance of the attraction which resulted in the child’s presence. Indeed, the language of the decision of the Illinois Appellate Court in Henry v. Robert Kettell Constr. Corp., 44 Ill.App.2d 356, 194 N.E.2d 535 (2d Dist. 1963), expressly recognized the necessity of more than mere attraction of and injury to a child to impose liability on the owner or possessor of land therefor when it said:
Realistically the doctrine of “attractive nuisance” serves only one purpose and that is in regard to the status of the infant on the premises. Once an infant of tender years because of his immature judgment and inability to appreciate certain conditions is attracted and allured to the premises, h'e is no longer a trespasser but is to be regarded as an invitee. * * * In such case, there is a duty upon the owner or other person in possession and control of the premises to which the child is allured to exercise due care so as not to negligently injure him while he is upon the premises. Id. at 359, 194 N.E.2d at 537 (emphasis added).
With this understanding of the law of Illinois, we are unable to identify any negligence of defendant other than the obvious negligence in not preventing its employees from throwing flares to children along the right-of-way: It is also clear that the attracting agency— the giving away of flares — did not proximately cause the injuries here at issue as would have been the situation if the child had been injured by the flares themselves or struck on or near the tracks while seeking or obtaining flares.
A requirement that for liability to attach there must be negligence beyond the mere creation or tolerance of a dangerous condition attractive to children where the source of the attraction is not also the source of the injury is entirely consistent with the customary rules of negligence law. In reality such a requirement is nothing more than the usual requirement that there be proximate causation for recovery of damages to follow. The absence of a requirement of proximate causation would have the logical result of making defendant an insurer as to injuries sustained by children without regard to who or what actually caused the injury. It is clear that such is not the law in Illinois.
In addition, the situs of the accident here at issue demonstrates the enormous burden which would be placed upon railroads if the defendant were held liable in this instance. The only methods of insuring that such injuries would not recur would be to fence the right-of-way at crossings where there is any likelihood of children’s presence or to construct an overpass or underpass or place a guard at all such crossings. We do not believe Illinois law imposes any such requirement. Moreover, on the basis of the testimony before the trial court, the practice of hopping rides on defendant’s trains was by no means confined to the Cargill Road crossing, and to effectively foreclose such a practice would therefore require fencing or patrolling of defendant’s entire right-of-way.
Finally, the actions of the two boys at the crossing indicate that they were in the vicinity of the railroad tracks when the accident occurred not to obtain flares but to hop a train. If their presence at the Cargill Road crossing at any prior time related to obtaining flares, that mission had clearly been abandoned by the time they placed themselves in danger of the accident which ultimately resulted. Moreover, their actions were inconsistent with a desire to obtain flares. This is so because not only was no request made for flares to be thrown to them, but also they hopped the train before the caboose (which, by the testimony of plaintiffs’ witnesses, was the usual source of the flares) had reached them. There is authority in the Illinois ease law for the proposition that, if a child has lost interest in the attracting agency and places himself in danger by undertaking another pastime which leads to injury, such a change in mission bars recovery as a matter of law. See Briney v. Illinois Cent. R. R., 401 Ill. 181, 81 N.E.2d 866 (1948) (cited in Kahn v. James Burton Co., supra, 5 Ill.2d at 625, 126 N.E.2d at 841).
The judgment of the district court is affirmed.
The complaint is in two counts. Count 1 asserts a claim by Illinois State Trust Company as guardian of the estate of Daniel David Land, a minor; Count 2 asserts a claim by the father of Daniel David Land for medical expenses.
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_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.
Sandra C. SCHULTZ and Robert C. Braun, Plaintiffs-Appellees, v. Russell FRISBY, George R. Hunt, Robert Wargowski, Harlan Ross, Clayton A. Cramer, and the Town of Brookfield, Defendants-Appellants.
No. 85-2950.
United States Court of Appeals, Seventh Circuit.
Dec. 8, 1986.
Coffey, Circuit Judge, dissented and filed opinion.
Harold H. Fuhrman, Schetter, Keck & Fuhrman, Milwaukee, Wis., for defendants-appellants.
Walter M. Weber, Catholic League for Religious & Civil Rights, Milwaukee, Wis., for plaintiffs-appellees.
Before WOOD and COFFEY, Circuit Judges, and SWYGERT, Senior Circuit Judge.
SWYGERT, Senior Circuit Judge.
In this case we consider whether an organized group of anti-abortion activists may be prevented from picketing in front of the private residence of a physician who performs abortions as part of his medical practice. These picketers challenge, on constitutional grounds, a municipal ordinance prohibiting all picketing in residential areas. The suit was filed by two members of the group against the municipality and its officers. After a hearing the district court enjoined the enforcement of the ordinance, ruling that it probably offended the first amendment. Schultz v. Frisby, 619 F.Supp. 792 (E.D.Wis.1985). On appeal the decision of the district court is affirmed.
I
The Town of Brookfield, the situs of the controversy, is located in Waukesha County, Wisconsin, not far from Milwaukee. The Town covers an area of about five and one-half square miles and has a population of approximately 4300. State Highway 18, also known as the West Bluemound Road, is the Town’s sole commercial thoroughfare. The remainder of the Town is residential. Brookfield’s homes are grouped into subdivisions graced by their developers with imaginative names. One of those subdivisions is called the “Black Forest.” It consists of fourteen homes and is zoned exclusively for single-family residences. The streets are thirty feet wide; there are no sidewalks, curbs, gutters, or streetlights.
One of the private residences in Black Forest is owned by Benjamin Victoria, M.D. Dr. Victoria performs abortions at clinics in Appleton, Wisconsin and Milwaukee. Dr. Victoria does not practice medicine in Brookfield. The house in Brook-field is the Victoria family’s principal residence.
Plaintiff-appellee Sandra Schultz is a former elementary schoolteacher who describes herself as a full-time housewife and mother. She believes that abortion is a “tragic and immoral injustice.” In January of 1984 she helped found the Milwaukee Coalition for Life, a group dedicated to stopping abortion through sidewalk counseling, picketing, and leafleting. Schultz is currently president of the Coalition.
Plaintiff-appellee Robert Braun is a self-described “community activist” and “advocate on behalf of the poor and unemployed and other needy people.” Braun strongly opposes abortion and believes in “caring and supportive alternatives” to the problems posed by an unwanted pregnancy.
On April 20, 1985 the Milwaukee Coalition for Life sponsored the first of several picket lines in front of the Victoria residence to protest Dr. Victoria’s performance of abortions. Between April 20 and May 20 the Victoria residence was picketed on at least six separate occasions. Schultz was present at picketing occurring on April 20, May 9, and May 20. Braun was present on May 16 and May 20. Estimates of the number of picketers on each occasion varied, but the number was never less than ten nor more than fifty. The picketing received extensive press coverage.
The parties disagree as to the conduct of the picketers. The Town submitted sworn affidavits indicating that the picketing was not always calm and orderly. One of the Town’s police officers stated that on April 27, 1985 he was called to the Victoria residence by Mrs. Victoria and observed that red ribbons had been tied onto the bushes and door of the house. Red ribbons are a symbol of the pro-life movement in Wisconsin. The ribbon-tying incident took place only minutes after a crowd of picketers had left the Victoria home.
Another Town police officer stated that on April 20 he observed picketers singing “God Bless America” and carrying signs that said “baby killer.” At the conclusion of the song the picketers shouted at the house, “Baby killer, Dr. Victoria, you’re a killer, save our children,” or words to that effect. At other times the picketers carried signs inscribed with various anti-abortion themes such as “Stop Abortion Now,” “Aborted Babies Sold for Cosmetics,” “Abortion is Legal Murder,” and “Forgiveness is Yours for the Asking.”
The family of a five-year-old boy, residing down the street from the Victorias, stated that on April 20 they saw a group of people marching on the street carrying signs about abortion and that one member of the group, “a lady with a cross,” told the little boy that there was a man who lived up the road who killed babies and that the boy should not go there. The child became frightened and asked if the man would kill him too.
A family living one block from the Victo-rias stated that their six-year-old daughter was told by picketers that Dr. Victoria was killing babies, that she had become frightened, and that they had been forced to explain abortion to her.
The Victorias’ son, age sixteen, stated that the picketers took his picture, shouted at him, and temporarily blocked his exit from his home. Mrs. Victoria stated that she was blocked from entering her home and that the picketers placed a sign stating, “You are a shame to the United States,” on her front door. She further stated that the picketers took photographs of her home and backyard pool and published them in their organization’s newsletter.
Schultz and Braun have sworn that the picketing was entirely peaceful. They claim that the picketers confined themselves to the street, did not block traffic, and did not generate excessive noise. The plaintiffs submitted affidavits which supported their contention that the picketing was polite and restrained. No arrests were made. Indeed, the defendants’ own proposed statement of uncontested facts cited an article published in the Milwaukee Sentinel of May 21, 1985 that quoted a “neighbor of Victoria” as objecting more to Dr. Victoria’s abortion activities than to the picketing. The district court found that the picketing had been conducted, “for the most part,” in a peaceable and orderly fashion.
Schultz has stated that picketing of the Victoria residence is necessary because:
Picketing at locations at which Victoria performs abortions would not accomplish what picketing on the public street by his house can accomplish. Such picketing would not serve to inform those dwelling in Victoria’s neighborhood. Moreover, the greater media coverage of residential picketing allows us to reach audiences who might not otherwise receive our messages. As an additional concern, we do not wish to interfere with efforts of sidewalk counselors to contact prospective abortion clients; picketing near the Victorias’ residence (away from the site of the abortions) removes the possibility of such problems, while more effectively conveying our messages to the abortionist and those in his community.
On May 7, 1985, after the picketing had started, the Town of Brookfield enacted an ordinance that prohibited picketing before or about the residence or dwelling of any individual, except for picketing during a labor dispute of the place of employment involved in the labor dispute. The Town Attorney became convinced that the new ordinance conflicted with the Supreme Court’s decision in Carey v. Brown, 447 U.S. 455, 100 S.Ct. 2286, 65 L.Ed.2d 263 (1980), and instructed the Town Chief of Police to withhold enforcement. Picketing continued and the ordinance was repealed. On May 15, 1985 the Town passed a new ordinance, section 9.17 of the General Code. The key provision of the new ordinance reads: “It is unlawful for any person to engage in picketing before or about the residence or dwelling of any individual in the Town of Brookfield.” The Town also set forth its rationale for the ordinance:
It is declared that the protection and preservation of the home is the keystone of democratic government; that the public health and welfare and the good order of the community require that members of the community enjoy in their homes and dwellings a feeling of well-being, tranquility, and privacy, and when absent from their homes and dwellings, carry with them the sense of security inherent in the assurance that they may return to the enjoyment of their homes and dwellings; that the practice of picketing before or about residences and dwellings causes emotional disturbance and distress to the occupants; obstructs and interferes with the free use of public sidewalks and public ways of travel; that such practice has as its object the harassing of such occupants; and without resort to such practice full opportunity exists, and under the terms and provisions of this chapter will continue to exist for the exercise of freedom of speech and other constitutional rights; and that the provisions hereinafter enacted are necessary for the public interest to avoid the detrimental results herein set forth.
There has been no picketing of the Victoria residence since May 21, 1985, the effective date of the picketing ordinance.
On July 2, 1985 Schultz and Braun brought suit under 42 U.S.C. § 1983 seeking declaratory and injunctive relief from an alleged deprivation of their rights under the first and fourteenth amendments of the United States Constitution. The defendants are Russell Frisby and George Hunt, Supervisors of the Town Board; Robert Wargowski, Chairman of the Town Board; Harlan Ross, Chief of Police; Clayton Cramer, Town Attorney; and the Town of Brookfield. A hearing on plaintiffs’ request for a preliminary injunction was held on August 13, 1985. Finding that the picketers were likely to prevail on the merits, on October 7, 1985 the district court issued its decision granting the picketers a preliminary injunction and providing that the injunction would become permanent, absent an appeal or request for a trial, within sixty days. The basis of the district court’s decision was that the ordinance was not narrowly tailored to advance the Town’s asserted interests in protecting the privacy of its citizens and the unobstructed use of the streets and sidewalks. The defendants appealed.
II
It is well-settled law that: “To obtain a preliminary injunction, a plaintiff must show: (1) that he has no adequate remedy at law or will suffer irreparable harm if the injunction is denied; (2) that the harm he will suffer is greater than the harm the defendant will suffer if the injunction is granted; (3) that the plaintiff has a reasonable likelihood of success on the merits; and (4) that the injunction will not harm the public interest.” ON/TV v. Julien, 763 F.2d 839, 842 (7th Cir.1985). The decision to grant or deny a preliminary injunction will not be disturbed absent an abuse of discretion. Burlington Northern RR v. Brotherhood of Maintenance of Way Employees, 793 F.2d 795, 804 (7th Cir.1986); Maxim’s Ltd. v. Badonsky, 772 F.2d 388, 390 (7th Cir.1985).
In American Hospital Supply Corp. v. Hospital Products Ltd., 780 F.2d 589 (7th Cir.1986), a divided panel of this court seemed to cast doubt upon the continuing validity of this traditional approach. Building upon an earlier decision of this court, Roland Machinery Co. v. Dresser Industries, 749 F.2d 380 (7th Cir.1984), American Hospital appeared to suggest that these traditional considerations could be encapsulated in an algebraic formula. 780 F.2d at 593. Subsequent decisions of this court have clarified the meaning of the American Hospital decision. In Lawson Products v. Avnet, 782 F.2d 1429 (7th Cir. 1986), this court re-examined the doctrinal underpinnings of the law of preliminary injunctions and concluded, in light of the issues raised by the American Hospital formula, that “despite possible contrary readings of recent precedent, the granting of injunctive relief remains a discretionary equitable remedy.” 782 F.2d at 1430. The court in Lawson explicitly endorsed the traditional approach to injunctive relief. “[T]his opinion represent[s] a continued affirmation of the traditional equitable factors governing injunctions and the classic roles of both district and appellate courts.” Id. at 1441. “Roland and American Hospital did not change any of the law governing preliminary injunctions.” Id. at 1437. A subsequent decision of this court agreed with the position taken by the panel in Lawson. See Brunswick Corp. v. David Jones, 784 F.2d 271, 1330 n. 1 (7th Cir.1986) (“American Hospital does not set forth a new standard for granting preliminary injunctions.”); see also Ball Memorial Hosp. v. Mutual Hosp. Ins., 784 F.2d 1325, 1346 (7th Cir.1986) (Will, J., concurring).
It should be obvious then, that concerns about the continuing validity of the traditional approach to preliminary injunctive relief in this circuit are misplaced. The law remains unchanged. Applying the law to the facts of this case, we conclude, for the reasons set forth below, that the district court did not abuse its discretion in granting the preliminary injunction.
Ill
The first amendment prohibits governmental bodies from enacting laws “abridging the freedom of speech” or “the right of the people peaceably to assemble.” These words, by themselves, seldom serve to illuminate the precise contours of protected expression in cases such as the present one. Picketing, for example, is not an instance of “pure speech” because it usually involves conduct of some sort and may not include verbal utterances at all. Conduct is not always entitled to the same level of protection as pure speech. Shut-tlesworth v. Birmingham, 394 U.S. 147, 152, 89 S.Ct. 935, 939, 22 L.Ed.2d 162 (1969). Nevertheless, “[tjhere is no doubt that as a general matter peaceful picketing and leafletting are expressive activities involving ‘speech’ protected by the First Amendment.” United States v. Grace, 461 U.S. 171, 176, 103 S.Ct. 1702, 1706, 75 L.Ed.2d 736 (1983).
The Supreme Court has often stated that speech on issues of public concern occupies the “highest rung of the hierarchy of First Amendment values” and is entitled to “special protection.” Connick v. Myers, 461 U.S. 138, 145, 103 S.Ct. 1684, 1689, 75 L.Ed.2d 708 (1983); NAACP v. Claiborne Hardware, 458 U.S. 886, 913, 102 S.Ct. 3409, 3425, 73 L.Ed.2d 1215 (1982); Carey v. Brown, 447 U.S. 455, 466-67, 100 S.Ct. 2286, 2293-94, 65 L.Ed.2d 263 (1980). The Court has characterized freedom of speech as a fundamental personal right, Schneider v. State, 308 U.S. 147, 161, 60 S.Ct. 146, 150-51, 84 L.Ed. 155 (1939), and “as the essence of self-government.” Garrison v. Louisiana, 379 U.S. 64, 75, 85 S.Ct. 209, 216, 13 L.Ed.2d 125 (1964). The right to picket, however, like all other forms of expression, is not absolute and is subject to reasonable regulation. Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 3069, 82 L.Ed.2d 221 (1984). “[T]he First Amendment does not guarantee the right to communicate one’s views at all times and places or in any manner that may be desired.” Heffron v. International Soc’y for Krishna Consciousness, 452 U.S. 640, 647, 101 S.Ct. 2559, 2564, 69 L.Ed.2d 298 (1981).
There are several important limitations on the scope of the first amendment. The expressive activity for which a claim of protection is made must be appropriate to, or not incompatible with, its location. “The existence of a right of access to public property and the standard by which limitations upon such a right must be evaluated differ depending on the character of the property at issue.” Perry Education Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 44, 103 S.Ct. 948, 954, 74 L.Ed.2d 794 (1983); see also Cornelius v. NAACP Legal Defense and Education Fund, 473 U.S. 788, 105 S.Ct. 3439, 3448, . 87 L.Ed.2d 567 (1985); Grayned v. Rockford, 408 U.S. 104,106, 92 S.Ct. 2294, 2297-98, 33 L.Ed.2d 222 (1972). In evaluating the appropriateness of expressive activity to a particular location courts employ the “public forum” doctrine. In places which by tradition have been devoted to assembly and debate the state’s ability to limit expressive activity is “sharply circumscribed.” Perry, 460 U.S. at 45, 103 S.Ct. at 955. In places not traditionally devoted to assembly or debate the state may nevertheless create a public forum by intent or custom. In these limited public forums a state may not enforce exclusions even if it need not have established the forum to begin with. Id. at 45, 103 S.Ct. at 955. In addition, certain government properties, even if “public” in other respects, are nonpublic forums for first amendment purposes. United States Postal Serv. v. Greenburgh Civic Ass’ns, 453 U.S. 114, 129, 101 S.Ct. 2676, 2685, 69 L.Ed.2d 517 (1981); Greer v. Spock, 424 U.S. 828, 836, 96 S.Ct. 1211, 1216, 47 L.Ed.2d 505 (1976); Adderly v. Florida, 385 U.S. 39, 47, 87 S.Ct. 242, 247, 17 L.Ed.2d 149 (1966).
Regulations enacted for the purpose of restraining speech on the basis of its content “presumptively” violate the first amendment. Renton v. Playtime Theatres, — U.S.-, 106 S.Ct. 925, 928, 89 L.Ed.2d 29 (1986). Content-neutral time, place, and manner regulations, however, are permitted if they are narrowly tailored to serve a substantial governmental interest and leave open ample alternative avenues of communication. Clark v. Community for Creative Non-Violence, 468 U.S. at 293, 104 S.Ct. at 3069. In City of Watseka v. Illinois Public Action Council, 796 F.2d 1547, 1552 (7th Cir.1986), we stated that a time, place, and manner restriction on expressive activity may be sustained only if the Government can show that the restriction (1) is content neutral, (2) serves a legitimate governmental objective, (3) leaves open ample alternative channels of communication, and (4) is narrowly tailored to serve the governmental objective. To establish that a regulation is narrowly tailored the Government must show that there is a “significant relationship between the regulation and the governmental interest ... and that less restrictive alternatives are inadequate to protect the governmental interest.” Id.
IV
We must first decide whether the street fronting Dr. Victoria's home is a public forum for purposes of the first amendment. We begin with the proposition that streets have historically been considered particularly appropriate locations for public assembly and debate.
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. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied.
Hague v. CIO, 307 U.S. 496, 515-16, 59 S.Ct. 954, 963-64, 83 L.Ed. 1423 (1939). The Supreme Court has repeatedly reaffirmed the Hague principle. See, e.g., United States v. Grace, 461 U.S. at 177, 103 S.Ct. at 1707 (“public places historically associated with the free exercise of expressive activities, such as streets, sidewalks, and parks, are considered, without more, to be ‘public forums’ ”); Amalgamated Food Employees Union v. Logan Valley Plaza, 391 U.S. 308, 315, 88 S.Ct. 1601, 1607, 20 L.Ed.2d 603 (1968) (“streets ... 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”); see also Carey v. Brown, 447 U.S. at 460, 100 S.Ct. at 2290; Hudgens v. NLRB, 424 U.S. 507, 515, 96 S.Ct. 1029, 1034, 47 L.Ed.2d 196 (1976); Shuttlesworth v. Birmingham, 394 U.S. at 152, 89 S.Ct. at 939.
It is not intuitively obvious, however, that all streets, in all places, must automatically be considered public forums. There are no doubt thousands of subdivisions scattered throughout this country, like the one involved in this case, on whose streets little, if any, first amendment activity has ever taken place. Homes like the Victo-rias’ were conceived, built, and purchased as private residences, havens from our loud and contentious inner cities. It seems incongruous to decide that this particular street is a public forum simply because streets in general have historically been centers of expressive activity.
In Pursley v. Fayetteville, 628 F.Supp. 676 (W.D.Ark.1986), the district court upheld the constitutionality of an ordinance essentially identical to the ordinance involved in this case. In Pursley the ordinance was also challenged by anti-abortion picketers wishing to picket the residence of a doctor who performed abortions as part of his medical practice. The Pursley court held that streets and sidewalks located in residential areas are not public forums. 628 F.Supp. at 679-80.
Nevertheless, the Supreme Court has always placed all streets, regardless of their differing characteristics, into the same privileged category for first amendment purposes. Twice, for instance, the Supreme Court has upheld the right of demonstrators to picket the streets fronting the private residence of the Mayor of Chicago. Carey v. Brown, 447 U.S. 455, 100 S.Ct. 2286, 65 L.Ed.2d 263 (1980); Gregory v. City of Chicago, 394 U.S. Ill, 89 S.Ct. 946, 22 L.Ed.2d 134 (1969). In neither case was the residential character of the neighborhoods sufficient to transform the streets at issue from public to non-public forums. In Heffron v. International Society for Krishna Consciousness, 452 U.S. 640, 101 S.Ct. 2559, 69 L.Ed.2d 298 (1981), the Court rejected the respondents’ attempt to equate, for first amendment purposes, streets and the state fairgrounds at issue in that case. “[I]t is clear that there are significant differences between a street and the fairgrounds. A street is continually open, often uncongested, and constitutes not only a necessary conduit in the daily affairs of a locality’s citizens, but also a place where people may enjoy the open air or the company of friends and neighbors in a relaxed environment.” Id. at 651, 101 S.Ct. at 2566. Justice White’s description of a hypothetical “street” entitled to characterization as a quintessential public forum serves as an accurate description of the Brookfield street in this case. The public forum status of streets and sidewalks may not be altered by legislative fiat. United States v. Grace, 461 U.S. at 180, 103 S.Ct. at 1708-09; Greenburgh, 453 U.S. at 133, 101 S.Ct. at 2687. Despite the tremendous changes in the patterns of residential life since the Hague decision, streets remain proper and natural places for the dissemination of ideas.
A holding that streets located in residential areas are not public forums would represent a radical departure from the general direction of first amendment jurisprudence. Such a holding would effectively place vast areas of this country out of the reach of the protection of the first amendment. Indeed, if streets like that fronting Dr. Victoria’s home are not protected by the first amendment, then primarily residential towns, like Brookfield, may effectively confine the right of their citizens to be exposed to a diversity of views on issues of public concern to those tiny areas of the community classified as “commercial” or “governmental.” The importance of free expression to our constitutional scheme of government makes this result inconceivable.
We think that if the issue were squarely presented to the Supreme Court it would hold that all streets, regardless of their situs, are public forums, and we therefore conclude that the Brookfield picketing occurred in a public forum.
V
This conclusion, however, does not answer the vexing questions that remain. We must also consider whether the Brook-field ordinance leaves open ample alternative channels for communication. Cf Clark v. Community for Creative Non-Violence, 468 U.S. at 293, 104 S.Ct. at 3069. For “a restriction on expressive activity may be invalid if the remaining modes of communication are inadequate.” Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 812, 104 S.Ct. 2118, 2133, 80 L.Ed.2d 772 (1984). And “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.” Schneider v. State, 308 U.S. at 163, 60 S.Ct. at 151-52.
There are no clear guideposts to assist courts in determining when an alternative forum is “adequate.” The thrust of the cases seems to be that an alternative forum will not be judged inadequate because it restricts the quantity of the means of expression. See, e.g., Taxpayers for Vincent, 466 U.S. at 803, 104 S.Ct. at 2128. The Supreme Court seems to have analyzed the issue in terms of its effect on the quality of the means of expression. The restricted forum must constitute a “uniquely valuable or important mode of communication.” Id. at 812, 104 S.Ct. at 2133.
In Renton v. Playtime Theatres, 106 S.Ct. at 925, the Court rejected claims that a zoning ordinance which prohibited motion picture theatres from locating within 1000 feet of a residential zone, church, park, or school did not allow for reasonable alternative avenues of communication where five percent of the land area of the city remained open to unrestricted use as adult theatre sites. In Taxpayers for Vincent the Court upheld a ban on the posting of signs on public property because the ban did not “affect any individual’s freedom to exercise the right to speak ... in the same place where the posting of signs on public property is prohibited.” 466 U.S. at 812, 104 S.Ct. at 2133 (emphasis added). But in Linmark Associates v. Willingboro, 431 U.S. 85, 97 S.Ct. 1614, 52 L.Ed.2d 155 (1977), the Court struck down a town ordinance that banned the posting of “For Sale” signs on real estate because the ban forced sellers to employ entirely different kinds of advertising, such as the newsme-dia.
There is no question that picketing per se is a valuable form of communication. The more difficult question is whether picketing in a residential neighborhood is an essential, “uniquely valuable,” element of the message Schultz and Braun seek to communicate. The question we must answer is whether the plaintiffs may effectively deliver their message elsewhere without, at the same time, changing the character of that message. The Brookfield ordinance restricts picketing to the commercial strip along West Bluemound Road, the Town’s main thoroughfare. We think it clear that in so doing the ordinance significantly impacts upon the quality of the means of expression Schultz and Braun have chosen to communicate their message. Forcing Schultz and Braun to picket in non-residential areas would be, in effect, to force them to engage in an entirely different form of expressive activity. Consigned to the “safe” and busy area along Bluemound Road, they may be conveniently ignored by passersby. They may be written off as eccentric and irrelevant nuisances. Residential picketing, however, does not permit the citizens of Brookfield to ignore or trivialize the message the picketers wish to communicate. Residential picketing, quite literally, brings the message home. More importantly, the fact that the message may reach and disturb families and children is clearly part of the point of the picketing, for, to a certain extent, the picketers seek to communicate their concerns about a perceived assault on the family and on childhood itself. There can be no better place to convey those concerns than in a residential area. The disturbance occasioned by the residential picketing in this case is actually one measure of
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:
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songer_casetyp1_7-3-3
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A
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation - commercial disputes".
C. M. KIRTLEY, Trustee of Automatic Washer Company, Debtor in Corporate Reorganization Proceedings, Appellee, v. Joseph ABRAMS and Richland Securities, Inc., Appellants, Sydney L. Albert, John W. Chamberlin and Louis G. Carmick, Defendants.
No. 3, Docket 26089.
United States Court of Appeals Second Circuit.
Argued Nov. 27, 1961.
Decided Jan. 17, 1962.
On Petition for Modification Feb. 13, 1962.
Samuel Gottlieb, Howard Henig, New York City (Murray L. Lewis, Harry Giesow and Seymour S. Howard, New York City, of counsel), for appellants.
Lester Kissel, New York City (Meyer, Kissel, Matz & Seward), New York City (Sydney J. Schwartz and Clayton P. Wood, New York City, of counsel), for appellee.
Before CLARK, FRIENDLY and KAUFMAN, Circuit Judges.
FRIENDLY, Circuit Judge.
Defendants, Richland Securities, Inc., a New York corporation, and Joseph Abrams, a citizen of New York and its dominant stockholder, appeal from a judgment of Chief Judge Bruchhausen in the District Court for the Eastern District of New York, after a trial without a jury. The action was brought against them, and others not served, by C. M. Kirtley, a citizen of Iowa, who had been appointed trustee of Automatic Washer Company in a proceeding for reorganization under Chapter X of the Bankruptcy Act, 11 U.S.C.A. § 501 et seq., in the Southern District of Iowa. Jurisdiction was rested on diversity of citizenship. The action stemmed from a writing which we quote in the margin, the subsequent issuance of 50,000 shares of Automatic to Richland thereunder, and the non-delivery to Automatic of the “presses, production equipment and rubber machinery,” hereafter “the rubber machinery,” mentioned therein.
The amended complaint set forth six causes of action, several of them repetitious : a conspiracy by Richland, Abrams and other defendants to cause Automatic to issue the 50,000 shares without receipt of any money or property therefor; knowingly false representation by Richland and Abrams of an intention to furnish the rubber machinery; breach by Richland of its contract to deliver the rubber machinery; wrongful taking possession of the 50,000 shares by Richland and Abrams and conversion of the proceeds; obtaining of the 50,000 shares by Richland and Abrams through fraudulent misrepresentation of intention to deliver the rubber machinery; and Abrams’ causing Richland to enter into the contract and then to fail to perform it. In the first, second and fourth causes of action Kirtley sought to recover the fair value of the 50,000 shares as of the time of their issue, alleged to be $400,-000; in the third and sixth he claimed damages of $300,000 on the contract. The fifth cause of action asserted that the stock had a value when issued “of at least $400,000” and apparently was the basis for the prayer that a trust be impressed upon the proceeds of sale of the shares by Richland and Abrams. The court found that Kirtley had established all causes of action in the complaint, awarded judgment against Rich-land and Abrams for $425,000 with interest from March 1, 1956, and impressed a trust upon $154,000 the proceeds of the 50,000 shares, which Abrams was directed to pay into court.
The defense was presented in such a confused and diffuse fashion, partially excused by a torrent of objections to rather patently proper questions, that we can readily comprehend the trial judge’s failure to perceive its true thrust. This was that everyone had known from the outset that Richland neither could nor would deliver rubber machinery, and that Automatic was to look for the machinery solely to Sydney L. Albert or one of his family of corporate enterprises.
Early in 1955, Albert had acquired control of Bellanca Aircraft Corporation, then a small manufacturer of aircraft parts having the asset of a listing on the American Stock Exchange, by transferring the property of L. Albert & Son, a family firm engaged in the rebuilding and sale of used rubber mill machinery, in exchange for a large amount of Beilanea stock. He embarked Bellanca on a program of acquiring interests in other companies. Abrams was a “finder,” who brought Albert propositions from time to time. One such proposition resulted in an agreement for the purchase, in December, 1955, of 330,000 shares of Automatic Washer, at $2.55 per share, by Pierce Governor Company, Incorporated, in which Albert had a controlling interest.
Bellanca owned 97% of the stock of N. O. Nelson Company, a heating and plumbing supply firm which it had acquired for some $4,850,000 in March, 1955 Perhaps as a sequel to the Pierce transaction, Abrams, along with one Shindler, who, according to Abrams, had been “standing by” with him to supply the needed funds to Automatic Washer if the Pierce transaction had not closed, found for Albert another proposition involving Automatic Washer, this time in connection with Bellanca’s Nelson stock. This proposition, which was ultimately embodied in an agreement between Bellanca and Automatic Washer, dated December 23, 1955, as was the contract in suit, “subject to the approval of the respective Boards of Directors of the parties hereto,” provided that Automatic would purchase the Nelson stock from Bellanca for 950,000 shares of Automatic stock and the surrender to Bellanca of a $1,525,000 note of Bellanca in favor of Albert which Automatic Washer was simultaneously acquiring from him.
Defendants asserted that the initial understanding was that Bellanca should receive 1,000,000 shares of Automatic rather than 950,000 and that Abrams and Shindler claimed a finders’ commission of 10%, to wit, 100,000 shares, which, under usual practice, would be paid by Bellanca, the seller. Albert testified that “I objected strenuously to paying any commission at that percentage, as it was in my knowledge unheard of to pay more than five per cent”; that accordingly “the deal appeared to be stymied”; that, because the market price of Automatic had risen, “I felt that I could readily reduce the selling price from the one million shares to 950,000 shares giving my company, Bellanca Aircraft, the equivalent or more dollarwise and pay the maximum brokerage that I felt I could pay, namely fifty thousand shares on a 950,000 selling price”; and that “the balance of the fifty thousand shares would remain with Automatic Washer, which I could assume they could in turn pay as their commission to Richland or whoever the brokers may have been.” Although this, testimony was not disputed, it still left the question why the 50,000 shares thus, “remaining” with Automatic Washer to be paid as commission were not issued, as such. Defendants’ explanation was. that Abrams told Chamberlin, the president of Automatic, that, due to the rise in the price of Automatic stock, he “was very worried” about getting 50,000' shares which would be taxed as ordinary income, with only a $1,000 deduction if' the shares were thereafter sold at a loss, and that “Mr. Chamberlin suggested' that rubber machinery which was to be-supplied, which he stated was being supplied by Sydney Albert, could be the basis upon which I could receive the 50.000 shares of stock, and suggested that some written agreement be made so-that he could substantiate the issuance-of the 50,000 shares for machinery and equipment, provided I would not receive the 50,000 shares on a subsequent date-as commission.” Shindler, who received' 50.000 shares as commission from Bellanca, told the same story, adding that Chamberlin said “he had a need for machinery, lots of rubber machinery” whereas Albert “had tremendous quantities of rubbery machinery,” and that Albert “stated that he would be more than happy to give the Automatic Washer Company all the machinery that they needed regardless of the amount because he was in control of that company.”
Whatever the veracity of this and other evidence we have not stopped to summarize, it created an issue that defendants should have been given latitude to develop — just as plaintiff was properly permitted to rebut defendants’ story by evidence that the rubber machinery was never delivered by anyone. It is altogether plain that as to the causes of action claiming fraudulent misrepresentation, on which the court based its award of damages, it was essential to determine whether Automatic, henceforth to be controlled by Albert in a degree defendants were never allowed to prove, ever expected Richland to make good on the representations and agreements contained in the writing of December 23, 1955. “The essential element of fraud that must exist in any case properly brought within that designation is a mistake of one party as to a material fact, wrongfully induced by
the other in order that it might be acted upon * * 5 Williston, Contracts (rev. ed. 1937), p. 4153; see also 1 Harper and James, The Law of Torts (1956), p. 584. We know of no authority that embodiment of a misrepresentation in a purported contract relieves a plaintiff suing on a theory of fraud from these requirements, and we see no possible reason for any such extension of the “parol evidence rule.”
Indeed, even as to the third and sixth causes of action, which were on the contract, that rule did not preclude defendants from attempting to show that there never was any agreement such as the writing purported to be. The basic distinction, in New York as in many other jurisdictions, is, as stated a century ago by Mr. Justice Erie in Pym v. Campbell, El. & Bl. 370, 374, 119 Eng.Rep. 903, 905 (1856), “that evidence to vary the terms of an agreement in writing is not admissible, but evidence to shew that there is not an agreement at all is admissible.” Grierson v. Mason, 60 N.Y. 394, 397 (1875); Thomas v. Scutt, 127 N.Y. 133, 137-138, 27 N.E. 961, 962 (1891); Smith v. Dotterweich, 200 N.Y. 299, 305, 93 N.E. 985, 987, 33 L.R.A.,N.S., 892 (1911); Saltzman v. Barson, 239 N.Y. 332, 146 N.E. 618 (1925); Bernstein v. Kritzer, 253 N.Y. 410, 171 N.E. 690 (1930); New York Trust Co. v. Island Oil & Transport Corp., 34 F.2d 655 (2 Cir. 1929); In re H. Hicks & Son, Inc., 82 F.2d 277 (2 Cir. 1936); Zell v. American Seating Co., 138 F.2d 641 (2 Cir. 1943), rev’d, 322 U.S. 709, 64 S.Ct. 1053, 88 L.Ed. 1552 (1944); Kind v. Clark, 161 F.2d 36, 46 (2 Cir.), cert. denied, 332 U.S. 808, 68 S.Ct. 107, 92 L.Ed. 385 (1947). The only respect in which the instant case differs from most of those cited is that Richland does not deny that any contract existed; it admits it was to get 50,000 shares but says the consideration for them was not its agreement to furnish rubbery machinery but the services rendered as “finder” and the promise not to assert any further claim for such services against either party to the Bellanca-Automatic deal. Still, it may be argued, Richland would thus be seeking “to vary the terms” of the agreement, which expressly stated that the stock was to be issued “in exchange for” the rubber machinery. This would be reading Mr. Justice Erie’s language too literally. The case is not like one where Richland would seek to show that it needed to supply only $250,000 worth of machinery instead of $300,000, or that it was entitled to some relief because the machinery had gone up in price or the stock down — here its claim is that the whole rubber machinery business was a sham, intended to deceive the tax authorities and perhaps to improve Automatic’s balance sheet, but not supposed by anyone to give rise to any obligation on its part. As said by Judge Learned Hand in the Hicks case, supra, 82 F.2d at 279, the parties’ “actual understanding may always be shown except in so far as expressly or implicitly they have agreed that the writing alone shall control. * * * [T]hey will not be bound if they agree that their words, however coercive in form, shall not bind them.” See the useful discussion in 3 Corbin, Contracts (1960 ed.), § 577, and § 572B, “Some Tentative Working Rules of Substantive Law,” items 8 and 9.
Although the trial judge did receive a good deal of evidence in support of defendants’ theory, he improperly circumscribed their proof. It was important for the defendants to show fully their version of how the transaction developed, and particularly, in view of the judge’s proper skepticism as to the credibility of Abrams (who at the time of the trial was serving a prison sentence for a different transaction, United States v. Fabric Garment Co., Inc., 262 F.2d 631 (2 Cir. 1958), cert. denied, 359 U.S. 989, 79 S.Ct. 1117, 3 L.Ed.2d 978 (1959), had previously pleaded guilty to filing a false income tax return for 1952, and, on his own theory of the instant case, had filed and caused Richland to file false ones for 1956), to buttress the testimony of Abrams, Shindler and Albert with that of outside witnesses. One such was Kahn, a Trenton, N. J., attorney, who had been representing Albert and Bellanea. Defendants sought to examine him and to introduce in evidence correspondence between him and Albert, in February and March, 1956, so much of which was sent to Abrams or brought to his attention that none of it could be regarded as confidential and therefore privileged in the absence of appropriate proof as to some particular item; the examination of Kahn was seriously curtailed and the letters were excluded. These were admissible for a variety of purposes — as tending to show that the Bellanca-Automatic deal, in Kahn’s words, “is probably not an arms length transaction,” to substantiate defendants’ claim that the arrangements were considered fluid long after December 23, 1955, and to corroborate defendants’ contention that the 50,000 shares were to be issued “as a commission or a gratuity or whatever else we desire to label it” and that the rubber machinery was to be Albert’s, not Richland’s. Another such witness was Purcell. The “rubber machinery” agreement was prepared by him as attorney for Automatic, allegedly in the course of a conference concerning the Bellanca-Automatic transaction on December 23, 1955, attended by Albert, Abrams, Chamberlin, Shindler, and Hayutin, and its relationship to earlier drafts of the Bellanca-Automatic agreement and to later developments was of crucial importance. Yet his testimony that Chamberlin had told him in January, 1956, that the rubber machinery had been selected and ticketed, was stricken as irrelevant, and objections to questions as to conversation with Albert about rubber machinery at the conference on December 23 were sustained. Later Purcell was allowed to testify, subject to a motion to strike, as to conversations at the same conference wherein Chamberlin agreed he could use rubber machinery and Albert said “there would be no difficulty substantiating a price of —a value of three hundred thousand dollars” — apparently without any indication that anyone was to pay Albert for it. However, at the end of the case the judge struck this testimony as immaterial. Purcell was also prevented from testifying as to an earlier draft agreement providing a consideration of 1,000,000 shares for Bellanca’s Nelson stock. The ruling to strike at the end of the case also carried with it the testimony of Hayutin as to a January, 1956, telephone call by Albert in the presence of Chamberlin, Shindler, Abrams and Purcell, wherein Albert “set up some type of an appointment” with his Akron office “so that Mr. Chamberlin and some of his people would go down and select the machinery that was discussed by Mr. Albert and Mr. Chamberlin at that meeting.” The ruling that testimony of such probative value as Purcell’s and Hayutin’s was immaterial shows that the judgment was not based merely on disbelief in Abrams’ testimony but upon a view, which we hold erroneous, that the entire defense was without basis in law. Whether it had a basis in fact is quite another matter.
We need not discuss other contentions of appellants, save to indicate that on the retrial much greater freedom should be allowed in the introduction of evidence of the true value of the 50,000 shares, if that issue should be reached.
The judgment is reversed and a new trial ordered. The provision directing the payment of $154,000 into Court shall remain in effect pending the outcome of the new trial; this intimates no view on our part as to the proper result.
On Petition for Modification
Counsel for appellants has questioned our power to order that the provision of the judgment directing payment of $154,-000 into court shall remain in effect pending the outcome of a new trial, and also has called our attention to the fact that another panel, on November 9, 1961, had stayed a proceeding in the District Court to punish appellant Abrams for contempt for failure to make the said pay* ment on condition that a $50,000 appeal bond be posted. Appellee’s counsel contends that our order is soundly rested on F.R.Civ.Proc. 62(g), 28 U.S.C.A. and raises questions relating to amounts collected by appellee on execution against bank deposits and as to a lien perfected against a residence owned by Abrams and his wife.
F.R.Civ.Proc. 62(g) is without bearing. However, it is established that, on reversing a plaintiff’s judgment for a new trial, an appellate court is not bound to order restitution of amounts collected, when the plaintiff may ultimately recover and such restitution may prevent his then obtaining satisfaction; in such cases moneys that have been collected may be ordered to be paid into court to await a new trial, 5B C.J.S. Appeal & Error § 1949, at p. 510; American Law Institute, Restatement of Restitution § 74, comments b, c; 3 Am.Jur. Appeal and Error § 1243; 2 Freeman, Judgments (1925) § 1171, at p. 2427; Marvin v. Brewster Iron Mining Co., 56 N.Y. 671 (1874); Britton v. Phillips, 24 How.Prac. Ill (N.Y.Sup.Ct. 1862); Young v. Brush, 28 N.Y. 667, 675 fn. 1 (1864). See Finkelstein, The Case of the Recalcitrant Debtor: A Study in Creditors’ Rights, 30 St. John’s L.Rev. 200 (1956), and Lader v. 128 West 48th St. Holding Corp., 125 N.Y.L.J. 898, col. 5 (Sup.Ct. March 13, 1951), quoted in 30 St. John’s L.Rev. at 208-209. Compare Goltra v. Weeks, 271 U.S. 536, 550, 46 S.Ct. 613, 70 L.Ed. 1074 (1926) and United States v. Morgan, 307 U.S. 183, 59 S.Ct. 795, 83 L.Ed. 1211 (1939).
In the light of the circumstances and the authorities, we believe the proper disposition to be as follows:
(1) Appellee shall deposit with the Clerk of the District Court all amounts that he has collected under his judgment, to abide the event of a new trial;
(2) The lien of the judgment previously rendered shall remain in effect, but no further executions shall be levied thereon;
(3) The direction for the payment of $154,000 (reduced by the amounts already collected by the appellee) into court shall remain in effect, except that it shall be stayed if appellants post a bond or other security in the amount of $50,000 to secure the payment of any judgment that may be rendered on a new trial.
Our previous order is modified to that extent.
. “December 23, 1955 “Richland Securities Corporation “Great Neck, Long Island “New York
“Gentlemen:
“This letter will serve to outline the agreement had between Richland Securities Corporation (hereinafter referred to as Richland) and the undersigned Automatic Washer Company (hereinafter referred to as Automatic).
“Automatic agrees to issue and deliver to Richland 50,000 shares of its $1.50 par value common stock in exchange for $300,000 worth of presses, production equipment and rubber machinery. You have represented that you have a quantity of such machinery and equipment stored at Akron, Ohio and you have agreed that we will be allowed to select the presses, production equipment and rubber machinery we deem useful for our purposes, it being understood that the value of the quipment so selected by us will be not less than $300,000.
“If this correctly sets forth the understanding had between us, kindly sign the enclosed copy of this letter on the line marked ‘Accepted*.
“Very truly yours,
“AUTOMATIC WASHER COMPANY
“By: JOHN W. CHAMBERLIN President
“ACCEPTED:
“RICHLAND SECURITIES CORPORATION “By: JOSEPH ABRAMS “President”
. An outline of some of Albert’s activities at the time can be found in Bellanca Corporation, 38 SEC 405 (1958).
. Abrams testified that, prior to the Pierce contract, Automatic Washer had 292,594 shares outstanding, Tr. 716. It is not clear whether this reflects the issuance, also in December, 1955, of 228,000 shares for the assets of Washer-Dryer Corporation; Chamberlin, who became president of Automatic, received 180,572 of these shares, of which he turned 25,000 over to Purcell and another 25,000 to Hayutin, mentioned below. Neither is it clear whether Pierce acquired all the 330,000 shares; according to the Trustee’s report, they were initially issued to Richland, which sold 230,000 to Pierce. In December, 1955, options for Automatic Washer shares were issued to Chamberlin, Purcell and Hayutin.
. We learn from the SEC’s report, 38 SEC at 408-409, that Abrams had guaranteed a loan made by Bellanca to finance this purchase, to the extent of $500,000, until the loan was redu&ed by $2,000,000, Albert indemnifying him against loss.
. For this note, executed by Albert on behalf of Bellanca purportedly to reimburse himself for loans in connection with the acquisition of the Nelson stock, Automatic was to issue 305,000 shares to Albert. Kahn, Albert’s lawyer, pointed out, in a letter dated February 20, 1956, that the outstanding balance on the note was only $1,220,000; later it was said that the balance was only $915,000. However, no reduction was made in the consideration to Albert from Automatic. Before the closing of the Bellanca-Automatic transaction on April 6, 1956, the number of Automatic shares to be issued for the Nelson stock was reduced by 262,500, but Bellanca was to receive that same number of shares in exchange for 100,000 shares of its own. For reasons developed below, defendants should have been allowed fully to explore all these backings and fillings in support of their contention that the transactions were not at arm’s, length, but were shifted around to meet the convenience of Albert, Abrams, Chamberlin, et al.
It is also to be noted that Automatic’s purchase of the Nelson shares, which Bellanca had bought for $4,850,000, was after the declaration of a $3,600,000 dividend by Nelson. On the valuation of' $8.50 per share which the judge found for the Automatic shares here in suit, the total value of the 1,255,000 Automatic-shares to be issued for the ex-dividend; Nelson shares would have been $10,667,--500.
Litigation between the Trustee of Automatic Washer and Albert relating to the-305,000 shares was settled by Albert’s-, payment of $15,000; the Trustee entered' into a covenant not to sue Albert with, respect to the claim asserted on that action “or otherwise arising out of or in-connection with any purchase, sale or-transfer of Automatic Washer Company stock.”
. A New York court would first have to consult the New York conflict of laws to determine what state’s contract law applies. The law governing application of the parol evidence rule is the same as that chosen to determine the validity of the contract. American Law Institute, Restatement of the Law Second, Conflict of Laws, Tentative Draft No. 6, § 346, comment d. Applying the principle of Auten v. Auten, 308 N.Y. 155, 124 N.E. 2d 99, 50 A.L.R.2d 246 (1954), New York would select itself as the state having the most significant contacts on that issue. Although Automatic is a Delaware corporation with its manufacturing plant in Iowa, it maintained an oflice in New York, where Chamberlin, its president, spent most of his time, and held special board meetings in New York, including the meeting that acted on the contract here in suit. Richland is a New York corporation and Abrams a citizen of New York. The negotiations leading up to the Bellanca-Automatic transaction took place in New York, and the writing dated December 23, 1955, was prepared by Francis J. Purcell, a New York lawyer, in a New York law oflice, where Abrams and representatives of Automatic and Bellanca were present, and was signed there. These contacts are more significant than those of Ohio, where the rubber machinery was, or of Iowa, where, arguably, it was to be sent. All this is especially so when the issue is whether Richland made any contract as to rubber machinery at all.
If Federal jurisdiction were rested on § 23, sub. b, of the Bankruptcy Act, 11 IT.S.C.A. § 46, sub. b, the analysis would be the same, Harris v. Standard Accident and Insurance Co., 297 F.2d 627, 630 fn. 4 (2 Cir. 1961).
. Although the authority of the learned opinion of Judge Frank, for Judges L. Hand, Swan and himself, is shaken on the particular facts by the Supreme Court reversal, in which four Justices thought that “proof of the contract alleged in respondent’s affidavits on the motion for summary judgment is precluded by the applicable state parol evidence rule,” Michigan’s, and only two Justices clearly approved this court’s contrary ruling, the other three apparently not reaching the question, the case is distinguishable from the instant one. Zell was attempting to enforce an alleged agreement for compensation additional to that provided in the writing; Richland says the true agreement was altogether different from the writing and that the latter was mere window-dressing. Cf. Grierson v. Mason, 60 N.Y. 394 (1875).
. Abrams’ tax return showed a purchase of machinery for $10,000 and a sale to Richland for $127,500; Richland’s showeu a purchase of machinery for $127,500 and a sale for stock which produced $154,000.
. In view of the letter of Purcell’s firm dated Feb. 10, 1956, giving its opinion that the 50,000 shares would be validly issued to Richland “in exchange for $300,000 worth of presses, production equipment and rubber machinery * * Purcell was scarcely disposed to strengthen defendants’ contention tbat everyone knew Richland was not going to supply the machinery and that the “agreement” was in fact as unreal as it appears to be; the need for giving the defendants full latitude to examine Mm as a hostile witness was thus all the greater.
Question: 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:
|
songer_usc2sect
|
1962
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 18. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
UNITED STATES of America, Appellee, v. Paul MAZZEI, Defendant-Appellant.
No. 285, Docket 82-1146.
United States Court of Appeals, Second Circuit.
Argued Sept. 20, 1982.
Decided Jan. 28, 1983.
Certiorari Denied May 23, 1983.
See 103 S.Ct. 2124.
Phylis Skloot Bamberger, The Legal Aid Society, Federal Defender Services Unit, New York City, for defendant-appellant.
Edward A. McDonald, Attorney-in-Charge, U.S. Dept, of Justice, Organized Crime Strike Force, E.D.N.Y., Brooklyn, N.Y. (Raymond J. Dearie, U.S. Atty., E.D. N.Y., Lawrence H. Sharf, Sp. Atty., E.D. N.Y., Brooklyn, N.Y. of counsel), for appellee.
Before LUMBARD, MESKILL and CARDAMONE, Circuit Judges.
MESKILL, Circuit Judge:
The defendant Paul Mazzei (Mazzei) appeals from the judgment of the United States District Court for the Eastern District of New York, Bramwell, J., convicting him, after a four week jury trial, of conspiracy to violate the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961 et seq. (1976 & Supp. V 1981) (RICO), conspiracy to commit sports bribery, 18 U.S.C. § 224 (1976), and interstate travel with the intent to commit bribery, 18 U.S.C. § 1952 (1976). Mazzei was sentenced to ten years imprisonment on the RICO count, and concurrent five year prison terms on the remaining two counts. Facts
Mazzei’s conviction arises from his involvement in the Boston College (B.C.) “point shaving” scheme. The facts pertinent to this criminal enterprise, which gained national prominence in February of 1981 when Sports Illustrated (SI) published an article exposing the scheme, are discussed extensively in the opinion that has been filed simultaneously with this decision. See United States v. Burke, 700 F.2d 70, (2d Cir. 1983). We refer the reader to that opinion for a more complete discussion of this scandal and therefore limit our discussion of the facts to those implicating Mazzei in the B.C. conspiracy.
The evidence presented at trial revealed that three general groups of individuals were responsible for devising and implementing the point shaving scheme. The “Pittsburgh Connection” consisted of Rocco Perla, his brother Anthony Perla, and appellant Mazzei. They appear to have initially conceived of the point shaving concept and were able to enlist the cooperation of Richard Kuhn, a B.C. basketball player who was a high school friend of Rocco Per-la. The “New York Connection” consisted of Henry Hill and James Burke, who were responsible for creating a bookmaking syndicate to bet on B.C. games and arranging “protection” for the conspirators. The third group of individuals implicated in the scheme were the “insiders,” those members of the B.C. basketball team who agreed to “shave points” in certain preselected games. The players received payments, usually $2,500 per game, in exchange for ensuring that B.C. did not beat the “point spread” in those games where the betting syndicate wagered against B.C.
Mazzei acted largely as a “middleman” in this conspiracy. He was linked to the Perla brothers in Pittsburgh and interceded on their behalf to enlist his “friends” in New York, including Henry Hill, to provide support and protection for the criminal enterprise. Mazzei had befriended Hill while both individuals were serving time in prison and he apparently used this connection to gain access to major New York gambling circles.
Henry Hill ultimately proved to be an unreliable friend. In exchange for full immunity, Hill exposed the point shaving scheme and implicated Mazzei in this criminal enterprise. Mazzei was jointly indicted and tried with James Burke, Anthony Per-la, Rocco Perla, and Richard Kuhn, each of whom were found guilty under RICO and the bribery statutes. Mazzei has decided to appeal his conviction separate from his co-defendants, who pursued a joint appeal. Mazzei raises a variety of claims, some of which are identical to those argued by his co-defendants, others of which are distinct. To the extent that the claims are identical, they have been considered and rejected in the Burke opinion. This decision addresses only those claims that are unique to Mazzei. Discussion
A. Enterprise Element — RICO
Mazzei’s principal contention on appeal is that the district court improperly instructed the jury on the elements of the RICO offense. Specifically, Mazzei argues that the district court failed to explain to the jury that an “enterprise,” as defined in 18 U.S.C. § 1961(4) (1976), must be separate and distinct from its “pattern of racketeering activity,” as defined in 18 U.S.C. § 1962(c) (1976).
None of the defendants below, including Mazzei, submitted requests to charge with regard to the definition of enterprise, nor was any exception taken to that portion of the charge. Accordingly, Mazzei’s claim must fail unless there was plain error in the charge given. Mazzei’s contention that the district court failed to charge an essential element of the RICO offense, if established, would amount to plain error. See United States v. DeMarco, 488 F.2d 828, 832 (2d Cir.1973); United States v. Fields, 466 F.2d 119, 121 (2d Cir. 1972).
The indictment charged the defendants with a violation of RICO, 18 U.S.C. § 1962(c) (1976), which makes unlawful “the conduct of [an] enterprise’s affairs through a pattern of racketeering activity.” Included within the statutory definition of enterprise is a “group of individuals associated in fact although not a legal entity.” 18 U.S.C. § 1961(4) (1976). The indictment alleged an enterprise consisting of “a group of individuals associated in fact and utilizing, among other things, interstate travel and facilities in interstate commerce to influence by means of bribery the outcome of basketball games involving the Boston College varsity basketball team and to profit therefrom by wagering on those games.” App. of Appellant at Bl. The alleged pattern of racketeering activity was the defendants’ efforts during 1978 and 1979 to influence the outcome of B.C. basketball games in violation of 18 U.S.C. § 224 (1976), and the defendants’ travel in interstate commerce with the intent to commit bribery in order to influence the outcome of B.C. basketball games in violation of 18 U.S.C. § 1952 (1976).
Mazzei claims that to establish a violation of RICO, there must be proof that the alleged enterprise was distinct from the alleged pattern of racketeering activity. According to Mazzei, the government’s indictment alleged an enterprise identical to the alleged pattern of racketeering activity, to wit, a conspiracy formed for the sole purpose of shaving points in B.C. basketball games. To support this contention, he relies principally on United States v. Turkette, 452 U.S. 576, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981) and United States v. Bledsoe, 674 F.2d 647 (8th Cir.1982).
In Turkette, the Supreme Court was asked to decide “whether the term ‘enterprise’ as used in RICO encompasses both legitimate and illegitimate enterprises or is limited in application to the former.” 452 U.S. at 578, 101 S.Ct. at 2526. The Turkette Court reviewed the definition of enterprise found in 18 U.S.C. § 1961(4) (1976) and concluded that the statute did not exclude illegitimate organizations. The Court found that the legislative history of RICO compelled the same conclusion. In response to .criticism that including illegitimate organizations in the definition of enterprise would render redundant the element of a pattern of racketeering activity, the Court reasoned:
That a wholly criminal enterprise comes within the ambit of the statute does not mean that a “pattern of racketeering activity” is an “enterprise.” In order to secure a conviction under RICO, the Government must prove both the existence of an “enterprise” and the connected “pattern of racketeering activity.” The enterprise is an entity, for present purposes a group of persons associated together for a common purpose of engaging in a course of conduct. The pattern of racketeering activity is, on the other hand, a series of criminal acts as defined by the statute. 18 U.S.C. § 1961(1) (1976 ed., Supp. III). The former is proved by evidence of an ongoing organization, formal or informal, and by evidence that the various associates function as a continuing unit. The latter is proved by evidence of the requisite number of acts of racketeering committed by the participants in the enterprise. While the proof used to establish these separate elements may in particular cases coalesce, proof of one does not necessarily establish the other. The “enterprise” is not the “pattern of racketeering activity”; it is an entity separate and apart from the pattern of activity in which it engages. The existence of an enterprise at all times remains a separate element which must be proved by the Government.
Id. at 583, 101 S.Ct. at 2528 (footnote omitted).
We agree that Turkette requires the government to prove both the existence of an “enterprise” and a “pattern of racketeering activity.” We do not, however, read Turkette to hold that proof of these separate elements be distinct and independent, as long as the proof offered is sufficient to satisfy both elements. There is nothing in the language or legislative history of the Act to support the appellant’s view. Moreover, it does not make sense to impose a “distinctness” requirement in RICO cases. The appellant would have us rule that his actions are beyond the purview of RICO because he engaged only in point shaving and did not commit criminal acts other than those specifically contemplated in the conspiracy. Mazzei’s interpretation would lead to the anomalous result that a large scale underworld operation which engaged solely in trafficking of heroin would not be subject to RICO’s enhanced sanctions, whereas small-time criminals jointly engaged in infrequent sales of contraband drugs and illegal handguns arguably could be prosecuted under RICO. The Court will not place its imprimatur on such a counter-productive interpretation.
Turkette expressly provides that the proof used to establish the “pattern of racketeering activity” element “may in particular cases coalesce” with the proof offered to establish the “enterprise” element of RICO. 452 U.S. at 583, 101 S.Ct. at 2528. In our judgment, the proof of these elements coalesce comfortably in the present action. The government here proved an enterprise that was a “group of individuals associated in fact” with evidence establishing a common or shared purpose among the individuals and evidence that they functioned as a continuing unit. See United States v. Errico, 635 F.2d 152, 156 (2d Cir.1980), cert. denied, 453 U.S. 911, 101 S.Ct. 3142, 69 L.Ed.2d 994 (1981). The prosecution showed that the B.C. conspirators shared a common purpose — illegally shaving points on B.C. games to maximize their chances of betting successfully on those games — and that they functioned as a continuing unit, i.e., during the 1978-79 B.C. basketball season. The government also proved that the enterprise derived profit through a “pattern of racketeering activity,” to wit, “fixing” nine B.C. basketball games.
RICO’s legislative history fully supports our analysis. Indeed, illegal gambling appears to have been a primary concern of Congress when enacting RICO, and there is no language in the legislative history to indicate that the alleged enterprise must engage in activities separate and distinct from illicit gambling to come within the purview of RICO. In fact, the legislative history consistently speaks of the broad scope and important remedial purposes to be served by the Act. The Supreme Court has honored this legislative intent by giving the term “enterprise” a broad scope. Turkette, 452 U.S. at 589-90, 101 S.Ct. at 2531-32; see United States v. Hartley, 678 F.2d 961, 987-88 (11th Cir.1982).
The appellant correctly notes that the Eighth Circuit’s position on the “distinctness” issue is at odds with our analysis. See United States v. Lemm, 680 F.2d 1193, 1198-1201 (8th Cir.1982); United States v. Bledsoe, 674 F.2d 647 (8th Cir.1982); United States v. Anderson, 626 F.2d 1358 (8th Cir. 1980), cert. denied, 450 U.S. 912, 101 S.Ct. 1351, 67 L.Ed.2d 336 (1981). We are not persuaded by that precedent, substantially for the reasons detailed in this opinion. Moreover, this Circuit has implicitly rejected the interpretation of RICO advanced by Mazzei. See United States v. Errico, 635 F.2d 152,156 (2d Cir.1980), cert. denied, 453 U.S. 911, 101 S.Ct. 3142, 69 L.Ed.2d 994 (1981); United States v. Altese, 542 F.2d 104, 106 (2d Cir.1976) (per curiam), cert. denied, 429 U.S. 1039, 97 S.Ct. 736, 50 L.Ed.2d 750 (1977); see also United States v. Winter, 663 F.2d 1120, 1136 n. 25 (1st Cir.1981), cert. denied, -U.S. -, 103 5. Ct. 1250, 75 L.Ed.2d 479 (1983).
In Errico, we held that a network of jockeys and bettors, joined together for the “single, illegal purpose” of betting on “fixed” horse races, constituted an “enterprise” for purposes of RICO. 635 F.2d at 156. In Altese, the gravamen of the indictment was that the “defendants had conducted a large scale gambling business through a pattern of racketeering activity and the collection of unlawful debts, as defined in 18 U.S.C. § 1961(1), (5) and (6).” 542 F.2d at 105. The Altese defendants claimed on appeal that RICO applied only to legitimate enterprises that were conducted through a pattern of racketeering activity and did not extend to businesses conducted for solely illegal purposes. They asserted that RICO was not intended to provide added criminal sanctions in situations where the alleged enterprise was formed for an exclusively illegal purpose, in their case, gambling.
The Altese Court focused on the broad language of the RICO statute, particularly the legislature’s regular use of the term “any”:
We first note that each of the four paragraphs of Section 1962 begins with the all inclusive phrase: “It shall be unlawful for any person ...” who has received any income derived from any pattern of racketeering activity, etc., to use any part of such income in the acquisition of “any enterprise engaged in ... interstate or foreign commerce.” (emphasis supplied). The word “any” is explicit. In addition, we note that in Section 1961 the Congress in defining the words “person” and “enterprise” again uses the word “any”. In the light of the continued repetition of the word “any” we cannot say that “a reading of the statute” evinces a Congressional intent to eliminate illegitimate businesses from the orbit of the Act. On the contrary we find ourselves obliged to say that Title IX in its entirety says in clear, precise and unambiguous language — the use of the word “any” — that all enterprises that are conducted through a pattern of racketeering activity or collection of unlawful debts fall within the interdiction of the Act.
542 F.2d at 106 (footnote omitted). The Court' observed that Congress could have included limiting language in the RICO statute if it had intended to restrict the application of RICO to certain types of enterprises. Rather, the Congress declared that the Act should “be liberally construed to effectuate its remedial purposes.” Pub.L. No. 91-452, § 904(a), 84 Stat. 941, 947 (1970). Citing this legislative mandate, the Altese Court concluded that RICO was intended to provide enhanced sanctions against both legitimate and illegitimate businesses when they are conducted through a pattern of racketeering activity. 542 F.2d at 106. The Court also ruled, albeit implicitly, that a group formed for the sole purpose of illegal gambling and the collection of debts constituted an “enterprise” under RICO. See id. at 107 (Van Graafeiland, J., dissenting).
RICO is primarily focused on the threat to society posed by organized crime. Crime is no less organized where its purposes are singular. The district court properly charged each element of the RICO offense, and Mazzei has pointed to no omission in the charge that affected his substantive rights. We reject this claim.
B. Factual Determination of Enterprise
Mazzei also asserts that the district court removed from the jury the factual determination of enterprise. See United States v. Huber, 603 F.2d 387, 394-95 (2d Cir.1979), cert. denied, 445 U.S. 927, 100 S.Ct. 1312, 63 L.Ed.2d 758 (1980). The portion of the charge that Mazzei objects to provided:
The first element which I told you must find in order to convict a defendant on Count One is the existence of an enterprise consisting of an association or group of persons which was associated to influence by bribery the outcome of Boston College basketball games. Under the relevant legal definition contained in Section 1961(4) Title 18 of the United States Code, an enterprise includes and I quote: “any ... group of individuals associated in fact although not a legal entity.” It is of course your responsibility as jurors to determine whether the Government has proved the existence of the enterprise as alleged, and my instructions to you are in no way intended to indicate how you should find on this question of fact. However, I instruct you that as a matter of law the type of association alleged by the Government, if proven, would constitute an enterprise within the meaning of the statute.
App. of Appellant at C2669-70 (emphasis added). The government’s indictment alleged an enterprise, namely, a group of individuals sharing a common purpose — influencing the outcome of B.C. basketball games to secure a profit. The indictment also alleged a continuing unit — throughout the 1978-79 team season. The district court did not remove the factual determination of enterprise from the jury, rather it only defined the appropriate legal standard. The jury was left to evaluate the government’s proof to determine whether its allegations were sustained.
The judgment of the district court is affirmed.
. Hill & Looney, How I Put The Fix In, Sports Illustrated (Feb. 16, 1981).
. Mazzei claimed that Kuhn’s redacted confession should not have been submitted to the jury because it implicitly implicated him in the point shaving scheme in violation of his Sixth Amendment right of confrontation. We rejected this claim. United States v. Burke, 700 F.2d 70, (2d Cir. 1983). Mazzei also argued that the district judge improperly instructed the jury regarding its right to return a partial verdict under Rule 31(b). We similarly rejected this claim. Id. at 78-81.
. 18 U.S.C. § 1961(4) defines “enterprise” as: (4) “enterprise” includes any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity.
. See Remarks of Rep.St. Germain, 116 Cong. Rec. 35199 (Oct. 6, 1970) (“Gambling is generally thought to be the most profitable of the illegal goods and services provided by the rackets and the syndicates. The President’s Crime Commission reported in 1967 that enforcement officials believe that illegal betting on horse races, lotteries, and sporting events totals about $20 billion, with a net profit of $6 to $7 billion a year.”).
. See, e.g., Remarks of Rep.Kyl, 116 Cong.Rec. 35211 (Oct. 6, 1970) (“I agree with the gentleman from Michigan who just spoke [Rep. Conyers] that there are some provisions in this bill which could not have passed this body a few years ago. They are extraordinary measures. But it will take extraordinary measures to achieve the purposes which we must achieve today.”); Remarks of Rep. Mayne, 116 Cong. Rec. 35300 (Oct. 7,1970) (“The threat of organized crime must not be ignored or tolerated. Its insidious effects upon young people, upon legitimate business, upon our governments at all levels and upon our other institutions must be sternly and irrevocably eradicated.”).
. See, e.g., Remarks of Rep. Rodino, 116 Cong. Rec. 35199 (Oct. 6, 1970); Remarks of Rep. Clancy, 116 Cong.Rec. 35206 (Oct. 6, 1970).
Question: What is the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 18? Answer with a number.
Answer:
|
sc_casedisposition
|
E
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed. The information relevant to this variable may be found near the end of the summary that begins on the title page of each case, or preferably at the very end of the opinion of the Court. For cases in which the Court granted a motion to dismiss, consider "petition denied or appeal dismissed". There is "no disposition" if the Court denied a motion to dismiss.
THRYV, INC., fka Dex Media, Inc., Petitioner
v.
CLICK-TO-CALL TECHNOLOGIES, LP, et al.
No. 18-916
Supreme Court of the United States.
Argued December 9, 2019
Decided April 20, 2020
Mitchell G. Stockwell, Thurston Webb, Amanda N. Brouillette, Kilpatrick Townsend, & Stockton LLP, Atlanta, GA, Shannon Straw, Thryv, Inc., Glendale, CA, Adam H. Charnes, Jason P. Steed, Kilpatrick Townsend, & Stockton LLP, Dallas, TX, for Petitioner.
Noel J. Francisco, Solicitor General, Department of Justice, Washington, DC, for Respondent.
Justice GINSBURG delivered the opinion of the Court.
Inter partes review is an administrative process in which a patent challenger may ask the U.S. Patent and Trademark Office (PTO) to reconsider the validity of earlier granted patent claims. This case concerns a statutorily prescribed limitation of the issues a party may raise on appeal from an inter partes review proceeding.
When presented with a request for inter partes review, the agency must decide whether to institute review. 35 U.S.C. § 314. Among other conditions set by statute, if the request comes more than a year after suit against the requesting party for patent infringement, "[a]n inter partes review may not be instituted." § 315(b). "The determination by the [PTO] Director whether to institute an inter partes review under this section shall be final and nonappealable." § 314(d).
In this case, the agency instituted inter partes review in response to a petition from Thryv, Inc., resulting in the cancellation of several patent claims. Patent owner Click-to-Call Technologies, LP, appealed, contending that Thryv's petition was untimely under § 315(b).
The question before us: Does § 314(d)'s bar on judicial review of the agency's decision to institute inter partes review preclude Click-to-Call's appeal? Our answer is yes. The agency's application of § 315(b)'s time limit, we hold, is closely related to its decision whether to institute inter partes review and is therefore rendered nonappealable by § 314(d).
I
The Patent and Trademark Office has several ways "to reexamine-and perhaps cancel-a patent claim that it had previously allowed." Cuozzo Speed Technologies , LLC v. Lee , 579 U.S. ----, ----, 136 S.Ct. 2131, 2137, 195 L.Ed.2d 423 (2016). Congress established the procedure at issue here, inter partes review, in the Leahy-Smith America Invents Act (AIA), 125 Stat. 284, enacted in 2011. See 35 U.S.C. § 311 et seq. Inter partes review allows third parties to challenge patent claims on grounds of invalidity specified by statute. § 311(b).
For inter partes review to proceed, the agency must agree to institute review. § 314. Any person who is not the patent's owner may file a petition requesting inter partes review. § 311(a). The patent owner may oppose institution of inter partes review, asserting the petition's "failure ... to meet any requirement of this chapter." § 313.
The AIA sets out prerequisites for institution. Among them, "[t]he Director may not authorize an inter partes review to be instituted unless the Director determines ... that there is a reasonable likelihood that the petitioner would prevail with respect to at least 1 of the claims challenged in the petition." § 314(a). Most pertinent to this case, "[a]n inter partes review may not be instituted if the petition requesting the proceeding is filed more than 1 year after the date on which the petitioner, real party in interest, or privy of the petitioner is served with a complaint alleging infringement of the patent." § 315(b).
After receiving the petition and any response, the PTO "Director shall determine whether to institute an inter partes review under this chapter." § 314(b). The Director has delegated institution authority to the Patent Trial and Appeal Board (Board). 37 CFR § 42.4(a) (2019). As just noted, the federal agency's "determination ... whether to institute an inter partes review under this section" is "final and nonappealable." 35 U.S.C. § 314(d).
Upon electing to institute inter partes review, the Board conducts a proceeding to evaluate the challenged claims' validity. See § 316. At the conclusion of the proceeding-if review "is instituted and not dismissed"-the Board "issue[s] a final written decision with respect to the patentability of" the challenged claims. § 318(a). "A party dissatisfied with the final written decision ... may appeal the decision" to the Court of Appeals for the Federal Circuit. § 319.
II
Respondent Click-to-Call owns a patent relating to a technology for anonymous telephone calls, U.S. Patent No. 5,818,836 ('836 patent). In 2013, petitioner Thryv sought inter partes review, challenging several of the patent's claims.
In opposition, Click-to-Call urged that § 315(b) barred institution of inter partes review because Thryv filed its petition too late. Click-to-Call pointed to an infringement suit filed in 2001, which ended in a voluntary dismissal without prejudice. In Click-to-Call's view, that 2001 suit started § 315(b)'s one-year clock, making the 2013 petition untimely.
The Board disagreed. Section 315(b) did not bar the institution of inter partes review, the Board concluded, because a complaint dismissed without prejudice does not trigger § 315(b)'s one-year limit. Finding no other barrier to institution, the Board decided to institute review. After proceedings on the merits, the Board issued a final written decision reiterating its rejection of Click-to-Call's § 315(b) argument and canceling 13 of the patent's claims as obvious or lacking novelty.
Click-to-Call appealed, challenging only the Board's determination that § 315(b) did not preclude inter partes review. The Court of Appeals dismissed the appeal for lack of jurisdiction, agreeing with Thryv and the Director (who intervened on appeal) that § 314(d)'s bar on appeal of the institution decision precludes judicial review of the agency's application of § 315(b). Citing our intervening decision in Cuozzo , see infra , at 1372 - 1373, we granted certiorari, vacated the judgment, and remanded. Click-to-Call Technologies, LP v. Oracle Corp. , 579 U.S. ----, 136 S.Ct. 2508, 195 L.Ed.2d 837 (2016). On remand, the Court of Appeals again dismissed the appeal on the same ground.
Thereafter, in another case, the en banc Federal Circuit held that "time-bar determinations under § 315(b) are appealable" notwithstanding § 314(d). Wi-Fi One, LLC v. Broadcom Corp. , 878 F.3d 1364, 1367 (2018). The majority opinion construed § 314(d)'s reference to the determination whether to institute inter partes review "under this section" as trained on the likelihood-of-success requirement stated in § 314(a). Id. , at 1372. The § 315(b) timeliness determination, the majority concluded, "is not 'closely related' to the institution decision addressed in § 314(a)." Id. , at 1374 (quoting Cuozzo , 579 U.S., at ----, 136 S.Ct., at 2142 ). The majority therefore held that for § 315(b) appeals, § 314(d) does not displace the usual presumption favoring judicial review of agency action. Wi-Fi One , 878 F.3d at 1374-1375. In a concurring opinion, Judge O'Malley emphasized a "simpler" basis for the same conclusion. Id. , at 1375. In her view, § 314(d) shields from review only the agency's assessment of a petition's "substantive adequacy," not questions about the agency's "authority to act." Id. , at 1376.
Judge Hughes, joined by Judges Lourie, Bryson, and Dyk, dissented, expressing a position that today's dissent characterizes as "extraordinary." Post , at 1380 - 1381. Those judges concluded that § 314(d) conveys Congress' "clear and unmistakable" "intent to prohibit judicial review of the Board's [inter partes review] institution decision." Wi-Fi One , 878 F.3d at 1378. That prohibition applies to § 315(b) issues, the Federal Circuit dissenters maintained, because § 315(b) "describes when an [inter partes review] may be 'instituted.' " Id. , at 1377, 1378-1379 (quoting § 315(b)).
In light of its en banc decision in Wi-Fi One , the Court of Appeals granted panel rehearing in this case. Treating the Board's application of § 315(b) as judicially reviewable, the panel's revised opinion held that the Board erred by instituting review. The petition for inter partes review here was untimely, the Court of Appeals held, because the 2001 infringement complaint, though dismissed without prejudice, started the one-year clock under § 315(b). The court therefore vacated the Board's final written decision, which had invalidated 13 of Click-to-Call's claims for want of the requisite novelty and nonobviousness, and remanded with instructions to dismiss.
We granted certiorari to resolve the reviewability issue, 587 U.S. ----, 139 S.Ct. 2742, 204 L.Ed.2d 1129 (2019), and now vacate the Federal Circuit's judgment and remand with instructions to dismiss the appeal for lack of appellate jurisdiction.
III
A
To determine whether § 314(d) precludes judicial review of the agency's application of § 315(b)'s time prescription, we begin by defining § 314(d)'s scope. Section 314(d)'s text renders "final and nonappealable" the "determination by the Director whether to institute an inter partes review under this section." § 314(d) (emphasis added). That language indicates that a party generally cannot contend on appeal that the agency should have refused "to institute an inter partes review."
We held as much in Cuozzo . There, a party contended on appeal that the agency should have refused to institute inter partes review because the petition failed § 312(a)(3)'s requirement that the grounds for challenging patent claims must be identified "with particularity." 579 U.S., at ----, 136 S.Ct., at 2139 (internal quotation marks omitted). This "contention that the Patent Office unlawfully initiated its agency review is not appealable," we held, for "that is what § 314(d) says." Id. , at ----, 136 S.Ct., at 2139. Section 314(d), we explained, "preclud[es] review of the Patent Office's institution decisions" with sufficient clarity to overcome the " 'strong presumption' in favor of judicial review." Id. , at ---- - ----, 136 S.Ct., at 2140-2141 (quoting Mach Mining, LLC v. EEOC , 575 U.S. 480, 486, 135 S.Ct. 1645, 191 L.Ed.2d 607 (2015) ). See Cuozzo , 579 U.S., at ---- - ----, 136 S.Ct., at 2140 (finding " 'clear and convincing' indications ... that Congress intended to bar review" (quoting Block v. Community Nutrition Institute , 467 U.S. 340, 349-350, 104 S.Ct. 2450, 81 L.Ed.2d 270 (1984) )).
We reserved judgment in Cuozzo , however, on whether § 314(d) would bar appeals reaching well beyond the decision to institute inter partes review. 579 U.S., at ----, 136 S.Ct. at 2141-2142. We declined to "decide the precise effect of § 314(d) on," for example, "appeals that implicate constitutional questions." Ibid. Instead, we defined the bounds of our holding this way: "[O]ur interpretation applies where the grounds for attacking the decision to institute inter partes review consist of questions that are closely tied to the application and interpretation of statutes related to the Patent Office's decision to initiate inter partes review." Ibid.
B
We therefore ask whether a challenge based on § 315(b) ranks as an appeal of the agency's decision "to institute an inter partes review." § 314(d). We need not venture beyond Cuozzo 's holding that § 314(d) bars review at least of matters "closely tied to the application and interpretation of statutes related to" the institution decision, 579 U.S., at ----, 136 S.Ct., at 2141, for a § 315(b) challenge easily meets that measurement.
Section 315(b)'s time limitation is integral to, indeed a condition on, institution. After all, § 315(b) sets forth a circumstance in which "[a]n inter partes review may not be instituted." Even Click-to-Call and the Court of Appeals recognize that § 315(b) governs institution. See Brief for Respondent Click-to-Call 1 (§ 315(b) is "a clear limit on the Board's institution authority"); Wi-Fi One , 878 F.3d at 1373 ("§ 315(b) controls the Director's authority to institute [inter partes review]").
Because § 315(b) expressly governs institution and nothing more, a contention that a petition fails under § 315(b) is a contention that the agency should have refused "to institute an inter partes review." § 314(d). A challenge to a petition's timeliness under § 315(b) thus raises "an ordinary dispute about the application of " an institution-related statute. Cuozzo , 579 U.S., at ----, 136 S.Ct., at 2139. In this case as in Cuozzo , therefore, § 314(d)
overcomes the presumption favoring judicial review.
C
The AIA's purpose and design strongly reinforce our conclusion. By providing for inter partes review, Congress, concerned about overpatenting and its diminishment of competition, sought to weed out bad patent claims efficiently. See id ., at ----, 136 S.Ct., at 2139-2140 ; H. R. Rep. No. 112-98, pt. 1, p. 40 (2011) ("The legislation is designed to establish a more efficient and streamlined patent system that will improve patent quality and limit unnecessary and counterproductive litigation costs.").
Allowing § 315(b) appeals would tug against that objective, wasting the resources spent resolving patentability and leaving bad patents enforceable. A successful § 315(b) appeal would terminate in vacatur of the agency's decision; in lieu of enabling judicial review of patentability, vacatur would unwind the agency's merits decision. See Cuozzo , 579 U.S., at ----, 136 S.Ct., at 2139-2140. And because a patent owner would need to appeal on § 315(b) untimeliness grounds only if she could not prevail on patentability, § 315(b) appeals would operate to save bad patent claims. This case illustrates the dynamic. The agency held Click-to-Call's patent claims invalid, and Click-to-Call does not contest that holding. It resists only the agency's institution decision, mindful that if the institution decision is reversed, then the agency's work will be undone and the canceled patent claims resurrected.
Other features of the statutory design confirm that Congress prioritized patentability over § 315(b)'s timeliness requirement. A petitioner's failure to satisfy § 315(b) does not prevent the agency from conducting inter partes review of the challenged patent claims; the agency can do so at another petitioner's request. § 311(a). Nor does failure to satisfy § 315(b) prevent the original initiator from participating on the merits; the § 315(b)-barred party can join a proceeding initiated by another petitioner. § 315(b), (c). And once inter partes review is instituted, the agency may issue a final written decision even "[i]f no petitioner remains in the inter partes review." § 317(a). It is unsurprising that a statutory scheme so consistently elevating resolution of patentability above a petitioner's compliance with § 315(b) would exclude § 315(b) appeals, thereby preserving the Board's adjudication of the merits.
Judicial review of § 315(b) rulings, moreover, would do little to serve other statutory goals. The purpose of § 315(b), all agree, is to minimize burdensome overlap between inter partes review and patent-infringement litigation. Brief for Petitioner 24; Brief for Federal Respondent 36; Brief for Respondent Click-to-Call 37. Judicial review after the agency proceedings cannot undo the burdens already occasioned. Nor are § 315(b) appeals necessary to protect patent claims from wrongful invalidation, for patent owners remain free to appeal final decisions on the merits. § 319.
IV
Click-to-Call advances a narrower reading of § 314(d). In Click-to-Call's view, which the dissent embraces, post , at 1380 - 1387, the bar on judicial review applies only to the agency's threshold determination under § 314(a) of the question whether the petitioner has a reasonable likelihood of prevailing. Section 314(d) addresses the "determination by the Director whether to institute inter partes review under this section " (emphasis added), and, Click-to-Call maintains, § 314(a) contains "the only substantive determination referenced in" the same section as § 314(d). Brief for Respondent Click-to-Call 16. This interpretation, Click-to-Call argues, supplies a clear rule consonant with the presumption favoring judicial review. Cf. supra , at 1371 - 1372 (Federal Circuit's en banc Wi-Fi One decision).
Cuozzo is fatal to Click-to-Call's interpretation. Section 314(d)'s review bar is not confined to the agency's application of § 314(a), for in Cuozzo we held unreviewable the agency's application of § 312(a)(3). 579 U.S., at ---- - ----, 136 S.Ct., at 2139-2140. Far from limiting the appeal bar to § 314(a) and "nothing else" as Click-to-Call urges, Brief for Respondent 29, the Court's opinion in Cuozzo explained that the bar extends to challenges grounded in "statutes related to" the institution decision. 579 U.S., at ----, 136 S.Ct., at 2141.
The text of § 314(d) offers Click-to-Call no support. The provision sweeps more broadly than the determination about whether "there is a reasonable likelihood that the petitioner would prevail." § 314(a). Rather, it encompasses the entire determination "whether to institute an inter partes review." § 314(d).
And § 314(d) refers not to a determination under subsection (a), but to the determination "under this section." That phrase indicates that § 314 governs the Director's institution of inter partes review. Titled "Institution of inter partes review," § 314 is the section housing the command to the Director to "determine whether to institute an inter partes review," § 314(b). Thus, every decision to institute is made "under" § 314 but must take account of specifications in other provisions-such as the § 312(a)(3) particularity requirement at issue in Cuozzo and the § 315(b) timeliness requirement at issue here. Similar clarifying language recurs throughout the AIA. See, e.g. , § 315(c) (referring to the Director's determination regarding "the institution of an inter partes review under section 314 " (emphasis added)); § 314(b) (referring to "a petition filed under section 311 ," the section authorizing the filing of petitions (emphasis added)); § 314(b)(1) (referring to "a preliminary response to the petition under section 313 ," the section authorizing the filing of preliminary responses to petitions (emphasis added)).
If Congress had intended Click-to-Call's meaning, it had at hand readymade language from a precursor to § 314(d) : "A determination by the Director under subsection (a) shall be final and non-appealable." 35 U.S.C. § 312(c) (2006 ed.) (emphasis added) (governing inter partes reexamination). Or Congress might have borrowed from a related provision: "A determination by the Director pursuant to subsection (a) of this section that no substantial new question of patentability has been raised will be final and nonappealable." 35 U.S.C. § 303(c) (emphasis added) (governing ex parte reexamination). Instead, Congress chose to shield from appellate review the determination "whether to institute an inter partes review under this section ." § 314(d) (emphasis added). That departure in language suggests a departure in meaning. See Henson v. Santander Consumer USA Inc. , 582 U.S. ----, ----, 137 S.Ct. 1718, 1723, 198 L.Ed.2d 177 (2017).
Click-to-Call doubts that Congress would have limited the agency's institution authority in § 315(b) without ensuring judicial supervision. Congress entrusted the institution decision to the agency, however, to avoid the significant costs, already recounted, of nullifying a thoroughgoing determination about a patent's validity. See supra , at 1374 - 1375. That goal-preventing appeals that would frustrate efficient resolution of patentability-extends beyond § 314(a) appeals.
Click-to-Call also contends that we adopted its interpretation of § 314(d) in SAS Institute Inc. v. Iancu , 584 U.S. ----, 138 S.Ct. 1348, 200 L.Ed.2d 695 (2018). Neither of our holdings in that case assists Click-to-Call, and both holdings remain governing law. SAS Institute first held that once the agency institutes an inter partes review, it must "resolve all of the claims in the case." Id. , at ----, 138 S.Ct., at 1353. SAS Institute located that rule in § 318(a), which requires the agency to decide "the patentability of any patent claim challenged by the petitioner." Ibid. (emphasis in original; internal quotation marks omitted). SAS Institute next held that § 314(d) did not bar judicial review of § 318(a)'s application. Id. , at ---- - ----, 138 S.Ct., at 1358-1360. Our decision explained that "nothing in § 314(d) or Cuozzo withdraws our power to ensure that an inter partes review proceeds in accordance with the law's demands." Id. , at ----, 138 S.Ct., at 1359. That reviewability holding is inapplicable here, for Click-to-Call's appeal challenges not the manner in which the agency's review "proceeds" once instituted, but whether the agency should have instituted review at all.
Click-to-Call homes in on a single sentence from SAS Institute 's reviewability discussion: " Cuozzo concluded that § 314(d) precludes judicial review only of the Director's 'initial determination' under § 314(a) that 'there is a "reasonable likelihood" that the claims are unpatentable on the grounds asserted' and review is therefore justified." Id. , at ----, 138 S.Ct., at 1359 (quoting Cuozzo , 579 U.S., at ----, 136 S.Ct., at 2140 ). But that sentence's account of Cuozzo is incomplete. Recall that Cuozzo itself applied § 314(d)'s appeal bar to a challenge on grounds other than § 314(a). See supra , at 1374 - 1375. To understand how far beyond § 314(a) the bar on judicial review extends, we look to the statute and Cuozzo ; for the reasons stated above, they establish that § 314(d) bars challenges resting on § 315(b).
V
Click-to-Call presses an alternative reason why the Board's ruling on its § 315(b) objection is appealable. The Board's final written decision addressed the § 315(b) issue, so Click-to-Call argues that it may appeal under § 319, which authorizes appeal from the final written decision. But even labeled as an appeal from the final written decision, Click-to-Call's attempt to overturn the Board's § 315(b) ruling is still barred by § 314(d). Because § 315(b)'s sole office is to govern institution, Click-to-Call's contention remains, essentially, that the agency should have refused to institute inter partes review. As explained, § 314(d) makes that contention unreviewable.
* * *
For the reasons stated, we vacate the judgment of the United States Court of Appeals for the Federal Circuit and remand the case with instructions to dismiss for lack of appellate jurisdiction.
It is so ordered.
APPENDIX OF KEY STATUTORY PROVISIONS
35 U.S.C. § 314 :
"Institution of inter partes review
"(a) THRESHOLD .-The Director may not authorize an inter partes review to be instituted unless the Director determines that the information presented in the petition filed under section 311 and any response filed under section 313 shows that there is a reasonable likelihood that the petitioner would prevail with respect to at least 1 of the claims challenged in the petition.
"(b) TIMING .-The Director shall determine whether to institute an inter partes review under this chapter pursuant to a petition filed under section 311 within 3 months after-
"(1) receiving a preliminary response to the petition under section 313; or
"(2) if no such preliminary response is filed, the last date on which such response may be filed.
"(c) NOTICE .-The Director shall notify the petitioner and patent owner, in writing, of the Director's determination under subsection (a), and shall make such notice available to the public as soon as is practicable. Such notice shall include the date on which the review shall commence.
"(d) NO APPEAL .-The determination by the Director whether to institute an inter partes review under this section shall be final and nonappealable."
35 U.S.C. § 315(b) :
" PATENT OWNER'S ACTION .-An inter partes review may not be instituted if the petition requesting the proceeding is filed more than 1 year after the date on which the petitioner, real party in interest, or privy of the petitioner is served with a complaint alleging infringement of the patent. The time limitation set forth in the preceding sentence shall not apply to a request for joinder under subsection (c)."
Justice GORSUCH, with whom Justice SOTOMAYOR joins as to Parts I, II, III, and IV, dissenting.
Today the Court takes a flawed premise-that the Constitution permits a politically guided agency to revoke an inventor's property right in an issued patent-and bends it further, allowing the agency's decision to stand immune from judicial review. Worse, the Court closes the courthouse not in a case where the patent owner is merely unhappy with the merits of the agency's decision but where the owner claims the agency's proceedings were unlawful from the start. Most remarkably, the Court denies judicial review even though the government now concedes that the patent owner is right and this entire exercise in property-taking-by-bureaucracy was forbidden by law.
It might be one thing if Congress clearly ordained this strange result. But it did not. The relevant statute, the presumption of judicial review, and our precedent all point toward allowing, not forbidding, inventors their day in court. Yet, the Court brushes past these warning signs and, in the process, carries us another step down the road of ceding core judicial powers to agency officials and leaving the disposition of private rights and liberties to bureaucratic mercy.
I
Our story stretches back to the 1990s, when Stephen DuVal invented a system for anonymizing telephone calls. Believing in the promise of his idea, Mr. DuVal hired an attorney to secure a patent and sought avenues to bring his invention to market. Initially, both efforts met with success. In 1998, Mr. DuVal was awarded a U.S. Patent, which he licensed to a company called InfoRocket.com, Inc.
But problems soon emerged. In 2001, InfoRocket accused Ingenio, Inc., a predecessor of today's petitioner Thryv, Inc., of infringing Mr. DuVal's patent. The case carried on in federal district court for more than a year before InfoRocket and Ingenio decided to merge. The companies then jointly persuaded the court to dismiss InfoRocket's lawsuit without prejudice.
Still, the quiet did not last long. Following the merger, the surviving entity-for simplicity, call it Thryv-sought to turn the tables on Mr. DuVal by asking the Patent Office to reconsider the validity of his patent in an ex parte reexamination. That agency-led process dragged on for four more years, and ended with a mixed verdict: The Patent Office canceled a few claims, but amended others and permitted Mr. DuVal to add some new ones too.
Even the ex parte reexamination wasn't enough to put the parties' disputes to rest. During the reexamination, Thryv terminated its license with Mr. DuVal and stopped paying him royalties. But it seems that Thryv continued using the patented technology all the same. So Mr. DuVal transferred his patent to respondent Click-to-Call Technologies LP (CTC), which swiftly took the patent back to court. CTC noted that Thryv couldn't exactly plead ignorance about this patent, given that the company or its predecessors had previously licensed the patent, been sued for infringing it, and asked the Patent Office to reexamine it. When it came to Mr. DuVal's patent, CTC alleged, Thryv had done just about everything one can do to a patent except invent it.
Thryv responded by opening another new litigation front of its own. One year after CTC filed its federal lawsuit, Thryv lodged another administrative petition with the Patent Office, this time seeking inter partes review. Echoing some of the same arguments that led to its push for an ex parte administrative reexamination nine years earlier, and adding other arguments too, Thryv (again) asked the agency to cancel Mr. DuVal's patent on the grounds that it lacked novelty and was obvious. At the same time, Thryv sought to stay proceedings in CTC's infringement suit. Thryv argued that the district court should defer to the newly initiated inter partes review. Like many district courts facing the prospect of parallel administrative proceedings, this one obliged.
Why at this late hour did Thryv prefer to litigate before the agency rather than a federal district court? The agency's ex parte reexamination years earlier hadn't helped Thryv much. But since then, Congress had adopted the Leahy-Smith America Invents Act (AIA), 35 U.S.C. § 100 et seq. That law created the inter partes review process, which provides a number of benefits to accused infringers such as Thryv. Like federal court litigation, inter partes review holds the advantage of allowing a private party attacking a patent's validity to participate in adversarial proceedings, rather than rely on the agency to direct its own investigation as it does in ex parte reexamination. Compare 35 U.S.C. § 316 with §§ 302, 304, 305. Inter partes review also allows a party challenging a patent all manner of discovery, including depositions and the presentation of expert testimony. § 316 ; 37 CFR §§ 42.51 - 42.65 (2019). At the same time, the burden of proof is lower-requiring challengers like Thryv to prove unpatentability only by a preponderance of the evidence, § 316(e), rather than under the clear and convincing standard that usually applies in court. Microsoft Corp. v. i4i L. P. , 564 U.S. 91, 131 S.Ct. 2238, 180 L.Ed.2d 131 (2011). Perhaps most appealing, proceedings take place before the Patent Trial and Appeal Board, rather than in an Article III court, so there is no jury trial before a tenure-protected judge, only a hearing before a panel of agency employees.
Some say the new regime represents a particularly efficient new way to "kill" patents. Certainly, the numbers tell an inviting story for petitioners like Thryv. In approximately 80% of cases reaching a final decision, the Board cancels some or all of the challenged claims. Patent Trial and Appeal Board, Trial Statistics 10 (Feb. 2020), https://www.uspto.gov
Question: What is the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed?
A. stay, petition, or motion granted
B. affirmed (includes modified)
C. reversed
D. reversed and remanded
E. vacated and remanded
F. affirmed and reversed (or vacated) in part
G. affirmed and reversed (or vacated) in part and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to or from a lower court
K. no disposition
Answer:
|
songer_jurisdiction
|
D
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What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the trial court level. These issues are only considered to be present if the court of appeals is reviewing whether or not the litigants should properly have been allowed to get a trial court decision on the merits. That is, the issue is whether or not the issue crossed properly the threshhold to get on the district court agenda. The issue is: "Did the court determine that it had jurisdiction to hear this case?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".If the opinion discusses challenges to the jurisdiction of the court to hear several different issues and the court ruled that it had jurisdiction to hear some of the issues but did not have jurisdiction to hear other issues, answer "Mixed answer".
UNITED STATES of America, Plaintiff-Appellee, v. David Ronald CHANDLER, a/k/a Ronnie Chandler, Defendant-Appellant.
Nos. 91-7466, 91-7577.
United States Court of Appeals, Eleventh Circuit.
July 19, 1993.
As Modified Sept. 30, 1993.
Rehearing and Suggestion for Rehearing En Banc Denied Sept. 30, 1993.
L. Drew Redden, Birmingham, AL, Redden, Mills & Clark, Paul M. Dodyk, Cravath, Swaine & Moore, New York City, for defendant-appellant.
Frank W. Donaldson, U.S. Atty., Harwell G. Davis, Asst. U.S. Atty., Birmingham, AL, Robert J. Erickson, Deputy Chief, Appellate Section, Criminal Div., U.S. Dept, of Justice, Washington, DC, for plaintiff-appellee.
Before FAY, EDMONDSON and BIRCH, Circuit Judges.
BIRCH, Circuit Judge:
This appeal challenges the first death sentence imposed under the Anti-Drug Abuse Act of 1988, 21 U.S.C. § 848(e) et seq. The defendant Ronald David Chandler appeals both his conviction and sentence on the capital charge as well as his convictions and sentences on other related counts. We VACATE Chandler’s conviction and sentence for conspiracy. We AFFIRM all other convictions and sentences, including Chandler’s death sentence.
I. BACKGROUND
On May 8, 1990, Charles Ray Jarrell Sr. and Marlin Shuler drove to Snow’s Lake in Piedmont, Alabama. At the lake, Jarrell and Shuler engaged in target practice with two pistols that Jarrell had brought along. Jar-rell turned his gun at Shuler and then shot and killed him.
Later that year the State of Alabama indicted Jarrell, Jarrell’s son Billy Joe, and Chandler for the murder of Shuler. These indictments were ultimately dismissed, but the state prosecutor handling those charges was appointed Special Assistant United States Attorney and assisted in this prosecution.
The United States issued a superseding indictment on January 9, 1991. Count One of the indictment charged Chandler, Jarrell and 14 other individuals with conspiracy to possess with intent to distribute and with distribution of over 1,000 kilograms of marijuana and 1,000 marijuana plants, in violation of 21 U.S.C. §§ 846 and 841(a)(1). Chandler was also indicted on eight other counts: Count Two, engaging in a continuing criminal enterprise, in violation of 21 U.S.C. § 848(a); Count Three, murder while engaged in and working in furtherance of a continuing criminal enterprise, in violation of 21 U.S.C. § 848(e); Counts Four and Five, aiding and abetting the use or carrying of a firearm in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c); and Counts Six, Seven, Eight, and Nine, money laundering in violation of 18 U.S.C. § 1956.
On January 17, 1991, Jarrell entered into a plea agreement with the government. Jar-rell pleaded guilty to the conspiracy charge in Count One of the indictment and agreed to testify on behalf of the government at Chandler’s trial. In exchange, Jarrell received immunity from prosecution for Shuler’s murder from the State of Alabama and the United States.
On January 30, 1991, the government served notice, pursuant to 21 U.S.C. § 848(h)(1), of its intention to seek the death penalty against Chandler for the murder of Shuler under Count Three. The notice stated that the government would attempt to prove the following aggravating factors as the basis for the death penalty: (1) Chandler did intentionally kill Shuler; (2) Chandler did intentionally engage in conduct intending that Shuler be killed; (3) Chandler procured the murder of Shuler by payment and promise of payment of money; and (4) Chandler committed the murder after substantial planning and premeditation.
Chandler’s trial was severed from the other co-conspirators’ trials and commenced on March 19, 1991. The government’s evidence consisted of over 40 witnesses, including a number of indicted and unindicted co-eon-spirators. Their testimony described the following events.
During the years of 1988 to 1990, Chandler developed an extensive marijuana growing and distribution operation that was centered in northeast Alabama, but operated in both Alabama and neighboring states. Chandler developed his supply of marijuana through the local farming of thousands of marijuana plants in northeast Alabama and the importation of marijuana from as far away as Texas. Chandler then used an extensive distribution network to generate substantial profits from his illegal activities. The profits were used in part to fund the growth of his operation and in part to purchase land and property.
The size of Chandler’s operation was significant. In 1989 and again in 1990, Chandler helped prepare and cultivate over 100 plots of land dedicated solely to marijuana plants. In 1989, Chandler harvested most of the several thousand marijuana plants that were originally planted. In 1990, the harvest was disturbed by government raids that seized over 500 marijuana plants from Chandler’s plots. In overseeing this operation, Chandler was not only actively involved in the cultivation of the plants, but he also hired several people to guard the plots during the growing season.
Chandler also arranged for supplies of marijuana from other locations, including a major source in Texas. In a four month period in 1990, Chandler engaged Jarrell as a courier to import approximately 245 pounds of marijuana from Texas in four deliveries. A fifth delivery was thwarted when a different courier was arrested with $106,000. Chandler also obtained supplies of marijuana in neighboring states.
Chandler developed a distribution system of couriers and dealers to facilitate his sale of marijuana. On occasion, Chandler gave his couriers firearms to provide protection for his marijuana. It was a perceived threat to this dealer network that caused Chandler to resort to murder.
One of Chandler’s dealers was Donna Shu-ler, the half-sister of both Chandler’s wife and Jarrell. On March 2, 1990, state law enforcement officers executed a search warrant on Donna Shuler’s home in Piedmont, Alabama, and uncovered several bags of marijuana totaling approximately one kilogram. The search warrant was based upon the affidavit of the local police chief. In the affidavit, the police chief stated that Shuler, the former husband of Donna Shuler, had complained on at least three occasions that Donna Shuler was dealing drugs from her home. Following the search, Donna Shuler was charged with drug trafficking.
Donna Shuler’s attorney, Bill Broome, waived the formal preliminary hearing in exchange for the opportunity to look through the local district attorney’s file, including the police report. On April 27, 1990, Broome made copies of the search warrant and the police chiefs affidavit and supplied copies of them to Donna Shuler. A subsequent search of Chandler’s residence on September 21, 1990, found a slip of paper which contained the words “Bill Broome” and “copy of police report.”
Following the search of Donna Shuler’s apartment, Chandler approached another of his dealers, Raymond Pointer, and asked him if he “was interested in making a little bit bigger money.” RVII-75. Chandler told Pointer that he would pay him $5,000 to kill Shuler because Shuler “had gone and busted somebody in Piedmont.” RVII-77. Chandler then opened a briefcase containing packets of hundred dollar bills and a nine millimeter pistol. Chandler also advised Pointer that he would pay him even more money if Pointer would kill the Piedmont Chief of Police. Pointer, however, declined Chandler’s offer.
On the morning of May 8, 1990, Chandler arrived at Jarrell’s house. Also present at the house was Shuler. Upon seeing Shuler, Chandler warned Jarrell, “He’s going to cause me and you a whole lot of trouble,” and “You need to go on and take care of him and I still got that $500.00.” RVII-10. Jarrell understood Chandler to be referring to a conversation Jarrell had with Chandler in January, 1990. In that conversation, which occurred before the search of Donna Shuler’s home, Chandler announced that Jarrell should eliminate Shuler due to all of the problems that Shuler had caused for Jarrell and his family, declaring that he would pay Jarrell $500 if Jarrell accomplished the task. At that time, Jarrell thought that Chandler was joking.
Chandler then left Jarrell’s house and Jar-rell and Shuler spent the morning drinking heavily. The two then drove to Snow’s Lake where they engaged in target practice with two guns Jarrell had brought: a .380 pistol owned by Jarrell and a nine millimeter pistol that Chandler had placed in Jarrell’s ear the previous evening. Jarrell then turned the nine millimeter pistol on Shuler, shot twice and killed him. Jarrell drove directly to Chandler’s home and advised Chandler that he had killed Shuler. Jarrell then returned to Snow’s Lake accompanied by Chandler, carried Shuler’s body to the other side of the mountain bordering Snow’s Lake, and buried the body near an abandoned moonshine still. Jarrell asked for the $500, but Chandler did not pay him.
At approximately the same time that Shu-ler was murdered, Chandler was also attempting to protect his operation from individuals who were stealing his marijuana crop. Chandler suspected that two individuals, Patrick Burrows and Jeffrey MeFry, were stealing his marijuana. Chandler warned several people that he would kill MeFry and Burrows if they continued to steal marijuana. Chandler later announced to one of his dealers that Burrows was dead and that MeFry would be next if McFry did not quit stealing Chandler’s marijuana. Neither Burrows nor McFry were seen after September 1990.
The defense argued that while Chandler may have been involved in individual marijuana transactions, he was not involved in a conspiracy with the 16 other individuals as charged in the superseding indictment. Further, under no interpretation of the evidence was Chandler the head of a continuing criminal enterprise.
The defense also introduced evidence that there was a history of animosity between Jarrell and Shuler that gave Jarrell an independent reason to kill Shuler. Donna Shu-ler, the half-sister of Chandler’s wife and Jarrell, was once married to Shuler. The couple lived for a time with Donna’s mother. During their marriage Shuler repeatedly abused his wife and his mother-in-law. Jar-rell and his sons frequently came to their defense and would argue and fight with Shu-ler. In 1989, during an argument between Shuler and Jarrell, Jarrell told Shuler that he was going to kill him, pointed a pistol at Shuler’s head, and pulled the trigger. Although the gun was loaded, it failed to fire.
Defense counsel also attacked the putative gaps in the government’s case. Chandler’s counsel emphasized that a number of the government’s key witnesses had entered into plea agreements in which testimony was exchanged for a recommendation of a lesser sentence.
On April 2, 1991, the jury found Chandler guilty on all nine counts. As provided under 21 U.S.C. § 848(i)(l)(A), the district court on the next day conducted a death penalty sentencing hearing before the same jury. The government resubmitted all of the evidence used at the guilt phase that was relevant to the death of Shuler or to the presence of aggravating or mitigating factors. The government and Chandler stipulated that Chandler had no prior convictions on any felony or drug charge and that state murder charges against Jarrell and Jarrell’s son in connection with the Shuler murder had been dismissed and that neither the United States nor Alabama would prosecute either one for murder. Chandler’s mother and wife testified for the defense.
Following detailed instructions from the district court, a unanimous jury found that the government had established two aggravating factors: (1) Chandler intentionally caused the death of Shuler and (2) Chandler procured the murder by promising the payment of money. The jury unanimously recommended that Chandler be sentenced to death. On May 14, 1991, the district court sentenced Chandler to life imprisonment on Counts One and Two, two consecutive five year sentences on Counts Four and Five, and six years of imprisonment on Counts Six, Seven, Eight and Nine. Based on the jury recommendation, the district court sentenced Chandler to death, on Count Three as mandated by 21 U.S.C. § 848(0-
Chandler moved for a new trial as to both phases of his trial. These motions assigned numerous errors to both the guilt and sentencing phases of the trial. Some arguments renewed previous attacks and others were made for the first time. The district court denied the motions, but stayed enforcement of the capital sentence pending appeal. Chandler filed two appeals to this court. The first challenged the capital sentence under Count Three. The second contested his conviction on Count Three and his convictions and sentences on the non-capital counts. • We consolidated the two appeals under 21 U.S.C. § 848(q)(l).
II. THE STATUTORY SCHEME
A. Overview Of Section 848
The Anti-Drug Abuse Act of 1988 establishes as a capital offense the intentional killing of a person in connection with the commission of a continuing criminal enterprise. The Act details procedures to be followed before a defendant may be sentenced to death.
Initially, the government must serve notice “a reasonable time before trial” of its intent to seek the death penalty. 21 U.S.C. § 848(h)(1). If a defendant is found guilty of violating Section 848(e)(1)(A), a separate sentencing hearing must be conducted, generally before the same jury that determined guilt. 21 U.S.C. § 848(i)(l)(A). The purpose of the hearing is to permit consideration of any aggravating and mitigating factors relevant to whether the defendant should be sentenced to death. 21 U.S.C. § 848(j). The information presented at sentencing need not conform to the Federal Rules of Evidence, so long as the district court is convinced that its pi’obative value is not substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading to the jury. Id.
The process by which a jury is to consider sentencing factors is specific. The government must prove beyond a reasonable doubt and to the unanimous satisfaction of the jury at least two of the aggravating factors expressly set forth in the statute. 21 U.S.C. § 848(j), (k). It must advise the defendant a reasonable time before trial of those aggravating factors it intends to prove. 21 U.S.C. § 848(h)(1). One of these must be from among the four listed in Section 848(n)(l). The other must be from among those listed in Section 848(n)(2)-(12). Absent a finding of these aggravating factors, a jury cannot impose the death penalty. 21 U.S.C. § 848(k).
If a jury makes the required findings of aggravating factors, it then considers any mitigating factors established by the defendant. 21 U.S.C. § 848(k), (m). Mitigating factors need only be established by a preponderance of the evidence, and any juror persuaded of a mitigating factor may consider it in reaching a sentencing decision; unanimity as to what factors are mitigating is not required. 21 U.S.C. § 848(j), (k).
A jury that finds the required aggravating factors must consider whether these factors so outweigh any mitigating factors as to justify a sentence of death. 21 U.S.C. § 848(k). Absent any mitigating factors, a jury must still unanimously find that the aggravating factors are themselves sufficient to justify a sentence of death. Id. Invidious factors, such as race or sex, cannot influence a jury’s recommendation of the death penalty. Each juror must sign a certificate attesting that neither the defendant’s nor the victim’s “race, color, religious beliefs, national origin, or sex” played any part in the deliberations. 21 U.S.C. § 848(o)(l).
Although a jury cannot vote for the death penalty absent the required findings just detailed, a jury is never required to impose a death sentence even if it finds sufficient grounds to do so under the applicable law. Indeed, a court must specifically so instruct the jury. 21 U.S.C. § 848(k). Although the statute denominates a jury’s finding in favor of the death penalty a “recommendation,” it is determinative, for upon such a “recommendation” the trial court “shall sentence the defendant to death.” 21 U.S.C. § 848(i).
Appellate review of a death sentence is expressly provided by the statute. 21 U.S.C. § 848(q)(l). Such appeal may be consolidated with a challenge to the judgment of conviction, and the case is to be given priority on the appellate docket. Id.
B. Standard Of Review
Section 848 contains two provisions that address our review of death sentences imposed under Section 848(e). Section 848(q)(2) states:
On review of the sentence, the court of appeals shall consider the record, the evidence submitted during trial, the information submitted during the sentencing hearing, the procedures employed in the sentencing hearing, and the special findings returned under this section.
Section 848(q)(3) provides:
The court shall affirm the sentence if it determines that—
(A) the sentence of death was not imposed under the influence of passion, prejudice, or any other arbitrary factor; and
(B) the information supports the special finding of the existence of every aggravating factor upon which the sentence was based, together with, or the failure to find, any mitigating factors as set forth or allowed in this section.
There is nothing in these sections altering our ordinary standards of review. Instead, these sections serve to emphasize the serious nature of capital cases and the importance of careful review.
III. DISCUSSION
A. Challenges To The Death Sentence
1. Jury power to recommend a sentence other than death
Section 848(k) provides that, if the jury finds certain aggravating factors, the jury must then weigh the aggravating factors against any mitigating factors to determine whether to recommend “that a sentence of death shall be imposed rather than a sentence of life imprisonment without possibility of release or some other lesser sentence.” At Chandler’s sentencing, the district court instructed the jury that, in the event that it did not recommend a sentence of death, it should not be concerned with the question of what sentence he might receive. The district court also stated that the judge alone would decide Chandler’s sentence if the jury did not recommend death.
Chandler contends that the district court violated Section 848(k) as well as the Fifth and Eighth Amendments by withholding from the jury the authority to impose a sentence other than death. However, at a pre-sentencing hearing, Chandler’s counsel asserted that “I don’t think they [the jurors] make a recommendation of a sentence if they don’t recommend death.” XIV-40. The proposed jury instructions submitted by Chandler advised that, if the jury did not recommend a death sentence, the responsibility for imposition of a non-death sentence rested with the district court. Because Chandler both argued for and submitted jury instructions stating that the district court alone was responsible for sentencing Chandler if the jury did not recommend death, Chandler invited the alleged error and cannot now, on appeal, complain that the instruction was erroneous. Leverett v. Spears, 877 F.2d 921, 924 (11th Cir.1989).
Had Chandler not invited the instruction, the district court properly construed Section 848(k). When the language of a statute is clear, the language controls any interpretation of the statute absent a legislative intent to the contrary. United States v. Turkette, 452 U.S. 576, 580, 101 S.Ct. 2524, 2527, 69 L.Ed.2d 246 (1981); Harper v. Better Business Servs., Inc., 961 F.2d 1561, 1563 (11th Cir.1992). We must look to the language and design of the statute as a whole in interpreting the language at issue. McCarthy v. Bronson, — U.S. -, -, 111 S.Ct. 1737, 1740, 114 L.Ed.2d 194 (1991).
The language of Section 848(k) is not perfectly clear, and the legislative history of the Anti-Drug Abuse Act of 1988 consists of only a few debates on the Senate floor. Nevertheless, Section 848(k) can be confidently interpreted when it is read in the context of the statute as a whole. Several provisions of Section 848 suggest that Chandler’s interpretation is flawed. Section 848(i) provides:
Upon the recommendation that the sentence of death be imposed, the court shall sentence the defendant to death. Otherwise the court shall impose a sentence, other than death, authorized by law.
The second sentence of this section instructs that the district court determines the sentence if the jury does not recommend death. Similarly, Section 848(p) provides:
If a person is convicted for an offense under subsection (e) of this section and the court does not impose the penalty of death, the court may impose a sentence of life imprisonment without the possibility of parole.
Thus, the statute grants the district court the discretion to sentence a defendant to life without parole if a death sentence is not recommended. These sections preclude an interpretation of Section 848(k) that gives the jury the authority to impose a non-death sentence. Correspondingly, the responsibility for- sentencing has historically resided with the trial court. In the absence of clear language in a statute to lodge the sentencing responsibility with the jury, we are reluctant to interpret the statute in a strained manner to reach that result. Hence, we find that Section 848 grants the district court the power to sentence the defendant where the jury does not recommend death.
Chandler next insists that our interpretation of Section 848(k) violates the Fifth and Eighth Amendments. Chandler relies on Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980). In Beck, the Court held that a jury in a capital ease must be permitted to consider a verdict of guilty on a lesser included non-capital offense where the evidence would support such a verdict. The jury will thus not be put in a position of choosing between guilt on a capital offense and acquittal. Chandler argues that the jury at his sentencing was put in a similar position.
However, Beck is not directly applicable in capital sentencing hearings. California v. Ramos, 463 U.S. 992, 1007-09, 103 S.Ct. 3446, 3457, 77 L.Ed.2d 1171 (1983). In Chandler’s case, prior to sentencing the jury found Chandler guilty of murder in connection with a continuing criminal enterprise. Therefore, the jury was not choosing between guilt of a capital crime and acquittal. It was choosing between a penalty of death and some other sentence yet to be determined by the trial judge.
Chandler also invokes Hicks v. Oklahoma, 447 U.S. 343, 100 S.Ct. 2227, 65 L.Ed.2d 175 (1980). In Hicks, the Court held that due process requires that a jury must be informed of all sentences that the statute allows it to impose when exercising sentencing power. Id. at 346, 100 S.Ct. at 2229. In Hicks, the jury was vested with the power to determine the defendant’s sentence, capital or otherwise. In this case, Hicks provides no guidance. The issue before us is whether Section 848 gives the jury the power to recommend a sentence other than death. Unless that question is answered in the affirmative, Hicks provides no guidance.
The Court has ruled that there is no single correct way to structure a death sentencing procedure. Morgan v. Illinois, — U.S. -, -, 112 S.Ct. 2222, 2228, 119 L.Ed.2d 492 (1992); Spaziano v. Florida, 468 U.S. 447, 464, 104 S.Ct. 3154, 3164, 82 L.Ed.2d 340 (1984). Indeed, there is also no constitutional requirement that juries be allowed to participate in capital sentencing. Id. at 459, 104 S.Ct. at 3161-62. Accordingly, there is nothing unconstitutional with the procedure Congress established in Section 848. The jury has the sole power to recommend a sentence of death. If the jury does not recommend a death sentence, the trial judge has the responsibility to impose a sentence other than death. Hicks is inapplicable to Chandler’s case because the jury, in this ease, was instructed on the full range of its sentencing power; that is, the power to recommend a death sentence.
2. Jury should have been informed of other sentences
Chandler contends that even if the jury did not have the power to recommend a sentence other than death, under Section 848(k) and applicable precedent, the jury should have been informed of the possible sentences Chandler would face if the jury did not recommend death. We review jury instructions de novo to determine whether they misstate the law or mislead the jury to the prejudice of the objecting party. United States v. Myers, 972 F.2d 1566, 1572 (11th Cir.1992), cert. denied, — U.S. - — , 113 S.Ct. 1813, 123 L.Ed.2d 445 (1993). The instructions must be viewed as a whole in the context of the trial record. Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973); Peek v. Kemp, 784 F.2d 1479, 1492 n. 13 (11th Cir.1986), cert. denied, 479 U.S. 1047, 107 S.Ct. 912, 93 L.Ed.2d 862 (1987). Further, an error occurs only when there is a reasonable likelihood that the jury applied the instruction in an improper manner. Boyde v. California, 494 U.S. 370, 380, 110 S.Ct. 1190, 1198, 108 L.Ed.2d 316 (1990); see Estelle v. McGuire, — U.S.-,-, 112 S.Ct. 475, 482 n. 4, 116 L.Ed.2d 385 (1991).
Initially, Chandler asserts that Section 848(k) requires that the jury be informed that he would face some other sentence, including the possibility of a life sentence without parole, if the jury did not recommend the death penalty. Section 848(k) instructs that after weighing the aggravating and mitigating factors and determining that the aggravating factors sufficiently outweigh the mitigating factors, the jury may then exercise its option to
recommend that a sentence of death shall be imposed rather than a sentence of life imprisonment without possibility of release or some other lesser sentence.
At sentencing the district court instructed the jury:
In deciding what recommendation to make, you are not to be concerned with the question of what sentence the defendant might receive in the event you determine not to recommend a death sentence. That is a matter for me to decide in the event you conclude that a sentence of death should not be recommended.
RXV-85. The district court also instructed:
If you do not make such a recommendation, the court is required by law to impose a sentence other than death, which sentence is to be determined by the court alone.
RXV-87. Chandler’s argument, in effect, is that the district court’s instruction was inadequate because it did not inform the jury that the “sentence other than death” included the possibility of life without parole.
We find that the district court’s instructions adequately informed the jury under Section 848(k). The statutory scheme created by Section 848 provides that the jury alone has the power to recommend a sentence of death. If the jury does not make such a recommendation, the district court sentences the defendant. Nothing in Section 848 requires the jury to be informed of what sentence the defendant might receive in the absence of death. The district court’s instructions were proper.
Chandler also suggests that applicable precedent, mandating that a defendant be allowed to introduce evidence relating to mitigating factors, requires that the jury be informed of the possibility that Chandler would receive a life sentence without parole if death was not recommended. The Supreme Court has defined mitigating factors as “any aspect of a defendant’s character or record and any of the circumstances of the offense.” Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2965, 57 L.Ed.2d 973 (1978); see Skipper v. South Carolina, 476 U.S. 1, 4, 106 S.Ct. 1669, 1670-71, 90 L.Ed.2d 1 (1986). The range of possible sentences that Chandler might receive in the event the jury did not recommend death does not fall within this definition. Accordingly, the district court was not required to inform the jury of the possible sentences Chandler might face.
3. Return of mitigating findings
Chandler urges us to rule that the district court should have required the jury to return written findings of mitigating factors it did or did not find to exist. At no time, however, did Chandler request that the jury be instructed to return written findings of mitigating factors or object to the lack of such an instruction. Chandler did submit proposed jury charges that instructed the jury that they should find two mitigating factors: (1) that Chandler lacked a criminal record, and (2) that an equally culpable defendant would not receive the death penalty. These requested instructions did not adequately bring to the district court’s attention the issue now presented on appeal. Thus, we review for plain error. Fed.R.Crim.P. 52(b).
The finding of plain error is a three step process: (1) there must be an error, (2) the error must be plain, i.e. clear or obvious, and (3) the error must affect substantial rights. United States v. Olano, — U.S.-,--, 113 S.Ct. 1770, 1777-78, 123 L.Ed.2d 508 (1993). In most cases, the third prong of this test is met only when the defendant demonstrates that the error affected the outcome of the proceedings before the district court. Id. at --, 113 S.Ct. at 1778. If, however, the error affects the basic protections of a criminal trial without which a criminal trial cannot reliably serve its function, an effect on the outcome will be presumed. Id.; see Arizona v. Fulminante, 499 U.S. 279,-, 111 S.Ct. 1246, 1264-65, 113 L.Ed.2d 302 (1991) (distinguishing between trial type errors and errors which undermine the entire trial). If the defendant satisfies all three prongs, then we have the discretionary power to correct an error which seriously affects the fairness, integrity or public reputation of judicial proceedings. Olano, — U.S. at-, 113 S.Ct. at 1778-79.
We first determine whether an error occurred. We disagree with Chandler’s interpretation of Section 848 that the jury is required to return written findings of mitigating factors that the jury has either found to exist or found not to exist. Instead we interpret Section 848 as providing the jury with the option of returning written findings of mitigating factors. Because the district court’s instructions and verdict form foreclosed the jury’s exercise of this option, the district court committed error.
Section 848(k) is entitled “Return of Findings.” It provides that the jury “shall return special findings identifying any aggravating factors set forth in subsection (n) of this section, found to exist.” The section also states:
A finding with respect to a mitigating factor may be made by one or more of the members of the jury, and any member of the jury who finds' the existence of a mitigating factor may consider such a factor established for purposes of this subsection, regardless of the number of jurors who concur that the factor has been established.
The statute mentions special findings only in relation to aggravating factors. Also, the permissive language concerning the return of written mitigating factors, “may be made,” contrasts with the mandatory language.concerning the return of written aggravating findings, “shall.” The jury .is required to return aggravating findings and is permitted to return mitigating findings. Therefore, we find that Section 848 requires that the jury be instructed that it has the option to return written findings of mitigating factors if it so chooses, but that it does not require the return of such findings.
Section 848(q) does not require a different result. This section states that on review of a death sentence, “the court of appeals shall consider ... the special findings .returned under this section.” 21 U.S.C. § 848(q)(2). The section also instructs, in pertinent part, that we shall affirm a death sentence if
the information supports the special finding of the existence of every aggravating factor upon which the sentence was based, together
Question: Did the court determine that it had jurisdiction to hear this case?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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sc_lcdisposition
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B
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the treatment the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed, that is, whether the court below the Supreme Court (typically a federal court of appeals or a state supreme court) affirmed, reversed, remanded, denied or dismissed the decision of the court it reviewed (typically a trial court). Adhere to the language used in the "holding" in the summary of the case on the title page or prior to Part I of the Court's opinion. Exceptions to the literal language are the following: where the Court overrules the lower court, treat this a petition or motion granted; where the court whose decision the Supreme Court is reviewing refuses to enforce or enjoins the decision of the court, tribunal, or agency which it reviewed, treat this as reversed; where the court whose decision the Supreme Court is reviewing enforces the decision of the court, tribunal, or agency which it reviewed, treat this as affirmed; where the court whose decision the Supreme Court is reviewing sets aside the decision of the court, tribunal, or agency which it reviewed, treat this as vacated; if the decision is set aside and remanded, treat it as vacated and remanded.
GUARDIANS ASSOCIATION et al. v. CIVIL SERVICE COMMISSION OF THE CITY OF NEW YORK et al.
No. 81-431.
Argued November 1, 1982 —
Decided July 1, 1983
Christopher Crowley argued the cause for petitioners. With him on the briefs was Kenneth Kimerling.
Leonard Koerner argued the cause for respondents. With him on the brief was Frederick A. 0. Schwarz, Jr.
Briefs of amici curiae urging reversal were filed by Arthur N. Eisen-berg and E. Richard Larson for the American Civil Liberties Union et al.; and by Vilma S. Martinez, Morris J. Bailer, and Roger L. Waldman for the Asian American Legal Defense and Education Fund et al.
Robert E. Williams, Douglas S. McDowell, and Thomas R. Bagby filed a brief for the Equal Employment Advisory Council as amicus curiae urging affirmance.
Thomas I. Atkins and Michael H. Sussman filed a brief for the NAACP as amicus curiae.
Justice White
announced the judgment of the Court and delivered an opinion, in Parts I, III, IV, and V of which Justice Rehnquist joined.
The threshold issue before the Court is whether the private plaintiffs in this case need to prove discriminatory intent to establish a violation of Title VI of the Civil Rights Act of 1964, 78 Stat. 252, as amended, 42 U. S. C. §2000d et seq., and administrative implementing regulations promulgated thereunder. I conclude, as do four other Justices, in separate opinions, that the Court of Appeals erred in requiring proof of discriminatory intent. However, I conclude that the judgment below should be affirmed on other grounds, because, in the absence of proof of discriminatory animus, compensatory relief should not be awarded to private Title VI plaintiffs; unless discriminatory intent is shown, declaratory and limited injunctive relief should be the only available private remedies for Title VI violations. There being four other Justices who would affirm the judgment of the Court of Appeals, that judgment is accordingly affirmed.
This class action involves a challenge by black and Hispanic police officers, petitioners here, to several written examinations administered by New York City between 1968 and 1970 that were used to make entry-level appointments to the city’s Police Department (Department) through October 1974. The District Court found that the challenged examinations had a discriminatory impact on the scores and pass-rates of blacks and Hispanics and were not job-related. These findings were not disturbed in the Court of Appeals.
Each member of the plaintiff class seeking relief from discrimination achieved a passing score on one of the challenged examinations and was hired as a police officer. Since appointments were made in order of test scores, however, the examinations caused the class members to be hired later than similarly situated whites, which lessened the petitioners’ seniority and related benefits. Accordingly, when the Department laid off police officers in June 1975 on a “last-hired, first-fired” basis, those officers who had achieved the lowest scores on the examinations were laid off first, and the plaintiff black and Hispanic officers were disproportionately affected by the layoffs.
On April 30, 1976, petitioners filed the present suit against the Department and other New York City officials and entities, the respondents here. Petitioners’ amended complaint alleged that the June 1975 layoffs violated their rights under Titles VI and VII of the Civil Rights Act of 1964, 42 U. S. C. § 2000d et seq., and § 2000e et seq., under 42 U. S. C. § 1983, and under various other state and federal laws. The primary allegation of the complaint was that but for the discriminatory impact of the challenged examinations upon minorities, petitioners would have been hired earlier and therefore would have accumulated sufficient seniority to withstand the layoffs.
After a hearing, the District Court held that, although petitioners had failed to prove that the respondents had acted with discriminatory intent, the use of the examinations violated Title VII, because the tests had a disparate impact upon minorities and were not proved by respondents to be job-related. The court therefore granted petitioners’ motion for a preliminary injunction restraining the Department from firing or recalling any police officers until seniority lists were reordered to accord petitioners the seniority they would have had but for respondents’ discriminatory practices. 431 P. Supp. 526 (SDNY 1977). In light of its holding under Title VII, the District Court deemed it unnecessary to decide the merits of petitioners’ claims under Title VI. Id., at 530, n. 2.
On respondents’ appeal, the Second Circuit vacated the District Court’s decision and remanded the case for reconsideration in light of our holding in Teamsters v. United States, 431 U. S. 324 (1977), in which we ruled that a bona fide seniority system that merely perpetuates the effects of pre-Title VII discrimination is protected by § 703(h) of that statute, 42 U. S. C. §2000e-2(h). 562 F. 2d 38 (1977). On remand, the District Court found that Teamsters had rendered its previous holding untenable to the extent that it granted relief with respect to discrimination occurring prior to March 24, 1972, the date on which Title VII became applicable to municipalities. See Pub. L. 92-261, § 2(1), 86 Stat. 103. This meant that, under Title VII, class members hired prior to the effective date were not entitled to any relief, and that the remaining members of the class were only entitled to back seniority awards that did not take into account time periods prior to that date. 466 F. Supp. 1273, 1280 (SDNY 1979).
The court then turned to Title VI, which has been applicable to municipalities since its enactment in 1964, to see if it would provide relief for the time periods prior to March 24, 1972. After considering Cort v. Ash, 422 U. S. 66 (1975), and the various opinions in University of California Regents v. Bakke, 438 U. S. 265 (1978), the District Court concluded that an implied private right of action exists under Title VI. 466 F. Supp., at 1281-1285. Then, citing Lau v. Nichols, 414 U. S. 563 (1974), and Title VI administrative interpretative regulations adopted by several federal agencies, the court reasoned that proof of discriminatory effect is enough to establish a violation of Title VI in a private action, thereby rejecting respondents’ contention that only proof of discriminatory intent could suffice. 466 F. Supp., at 1285-1287. Finally, turning to the question of relief, the court held that the same remedies available under Title VII should be available under Title VI, unless they would conflict with some purpose peculiar to Title VI. “In the instant case, back seniority, approved as a Title VII remedy in Franks v. Bowman Transportation Co., 424 U. S. 747 . . . (1976), is just as necessary to make discriminatees ‘whole’ under Title VI.” Id., at 1287.
Accordingly, relief was granted to the entire class pursuant to Title VI. In a subsequent order, the court set forth a detailed plan for the determination of the constructive seniority to which each individual member of the class would be entitled, and the corresponding monetary and nonmonetary entitlements that would be derived therefrom. The court also ordered respondents to meet and consult with petitioners on the preparation and use of future examinations. App. A99-A107.
Respondents appealed once again to the Second Circuit, which affirmed the relief under Title VII but reversed as to Title VI. 633 F. 2d 232 (1980). All three members of the panel agreed that the award of Title VI relief could not be sustained, but the panel divided on the rationale for this conclusion. Two judges held that the trial court erred by concluding that Title VI does not require proof of discriminatory intent. They believed that this Court’s decision in Lau v. Nichols, supra, which held that proof of discriminatory impact could suffice to establish a Title VI violation, had been implicitly overruled by the judgment and supporting opinions in Bakke, supra. 633 F. 2d, at 270 (Kelleher, J.); id., at 274-275 (Coffrin, J.).
The third member of the panel, Judge Meskill, declined to reach the question whether Title VI requires proof of discriminatory intent. Instead, he concluded that the “compensatory remedies sought by and awarded to plaintiffs in the case at bar are not available to private litigants under Title VI.” Id., at 255. Nothing in the legislative history, Judge Meskill observed, indicated that Title VI was intended to compensate individuals excluded from the benefits of a program receiving federal assistance, and in his view a compensatory private remedy would work at cross-purposes with the administrative enforcement mechanism expressly provided by §602 of Title VI, 42 U. S. C. §2000d-l, and with the objectives of the federal assistance statutes. 633 F. 2d, at 255-262.
After the Second Circuit denied petitions for rehearing from both sides, 633 F. 2d 232 (1980), we granted the plaintiffs’ petition for certiorari, 454 U. S. 1140, which claimed error solely on the basis that proof of discriminatory intent is not required to establish a Title VI violation.
r-H HH
The Court squarely held m Lau v. Nichols, supra, that Title VI forbids the use of federal funds not only in programs that intentionally discriminate on racial grounds but also in those endeavors that have a disparate impact on racial minorities. The Court of Appeals recognized this but was of the view, as are respondents, that University of California Regents v. Bakke, supra, had confined the reach of Title VI to those programs that are operated in an intentionally discriminatory manner. For two reasons, I disagree with this reading of Bakke.
A
First, I recognize that in Bakke five Justices, including myself, declared that Title VI on its own bottom reaches no further than the Constitution, which suggests that, in light of Washington v. Davis, 426 U. S. 229 (1976), Title VI does not of its own force proscribe unintentional racial discrimination. The Court of Appeals thought these declarations were inconsistent with Lau’s holding that Title VI contains its own prohibition of disparate-impact racial discrimination. The issue in Bakke, however, was whether Title VI forbids intentional discrimination in the form of affirmative action intended to remedy past discrimination, even though such affirmative action is permitted by the Constitution. Holding that Title VI does not bar such affirmative action if the Constitution does not is plainly not determinative of whether Title VI proscribes unintentional discrimination in addition to the intentional discrimination that the Constitution forbids.
It is sensible to construe Title VI, a statute intended to protect racial minorities, as not forbidding those intentional, but benign, racial classifications that are permitted by the Constitution, yet as proscribing burdensome, nonbenign discriminations of a kind not contrary to the Constitution. Although some of the language in the Bakke opinions has a broader sweep, the holdings in Bakke and Lau are entirely consistent. Absent some more telling indication in the Bakke opinions that Lau was being overruled, I would not so hold.
B
Even if I am wrong in concluding that Bakke did not overrule Lau, as so many of my colleagues believe, there is another reason for holding that disproportionate-impact discrimination is subject to the Title VI regime. In Lau, the Court was unanimous in affirming a holding that the school district there involved was forbidden by Title VI to practice unintentional as well as intentional discrimination against racial minorities. Five Justices were of the view that Title VI itself forbade impact discrimination. Lau, 414 U. S., at 566-569. Justice Stewart, joined by The Chief Justice and Justice Blackmun, concurred in the result. The concurrence stated that it was not at all clear that Title VI, standing alone, would prohibit unintentional discrimination, but that the Title VI implementing regulations, which explicitly forbade impact discrimination, were valid because not inconsistent with the purposes of Title VI. Id., at 569-571. Even if Bakke must be taken as overruling Lau’s holding that the statute itself does not reach disparate impact, none of the five Justices whose opinions arguably compel this result considered whether the statute would permit regulations that clearly reached such discrimination. And no Justice in Bakke took issue with the view of the three concurring Justices in Lau, who concluded that even if Title VI itself did not proscribe unintentional racial discrimination, it nevertheless permitted federal agencies to promulgate valid regulations with such effect. The upshot of Justice Stewart’s opinion was that those charged with enforcing Title VI had sufficient discretion to enforce the statute by forbidding unintentional as well as intentional discrimination. Nothing that was said in Bakke is to the contrary.
Of course, this leaves the question whether The Chief Justice, Justice Stewart, and Justice Blackmun were correct in their reading of the statute. I am convinced that they were. The language of Title VI on its face is ambiguous; the word “discrimination” is inherently so. It is surely subject to the construction given the antidiscrimination proscription of Title VII in Griggs v. Duke Power Co., 401 U. S. 424 (1971), at least to the extent of permitting, if not requiring, regulations that reach disparate-impact discrimination. As Justice Stewart pointed out, the federal agency given enforcement authority had consistently construed Title VI in that manner. Lau, supra, at 570 (opinion concurring in result). Moreover, soon after the passage of Title VI, the Department of Justice, which had helped draft the legislation, assisted seven agencies in the preparation of regulations incorporating the disparate-impact standard of discrimination. These regulations were early interpretations of the statute by the agencies charged with its enforcement, and we should not reject them absent clear inconsistency with the face or structure of the statute, or with the unmistakable mandate of the legislative history. Zenith Radio Corp. v. United States, 437 U. S. 443, 450 (1978). I discern nothing in the legislative history of Title VI, and nothing has been presented by respondents, that is at odds with the administrative construction of the statutory terms. The Title, furthermore, has been consistently administered in this manner for almost two decades without interference by Congress. Under these circumstances, it must be concluded that Title VI reaches unintentional, disparate-impact discrimination as well as deliberate racial discrimination.
I — I I — I
Although the Court of Appeals erred in construing Title VI, it does not necessarily follow that its judgment should be reversed. As an alternative ground for affirmance, respondents defend the judgment on the basis that there is no private right of action available under Title VI that will afford petitioners the relief that they seek. I agree that the relief denied petitioners under Title VII is unavailable to them under Title VI, at least where no intentional discrimination has been proved, as is the case here.
A
I deal first with the matter of a private cause of action under Title VI. In Lau v. Nichols, non-English-speaking Chinese students sought relief against the San Francisco School District, claiming that they should be taught the English language, that instruction should proceed in Chinese, or that some other way should be provided to afford them equal educational opportunity. This Court, reversing the Court of Appeals, gave relief under Title VI. The existence of a private cause of action under that Title, however, was not disputed in that case.
Four years later, the Court decided University of California Regents v. Bakke, which also involved a private suit seeking relief under Title VI against state educational authorities. Four Justices assumed, but did not decide, that a private action was available under Title VI. A fifth Justice was of the view that no private cause of action could be implied under the Title. The four remaining Justices concluded that a private action was available.
Still later, in Cannon v. University of Chicago, 441 U. S. 677 (1979), the Court, applying the factors specified in Cort v. Ash, 422 U. S. 66 (1975), held that private parties could sue to enforce the prohibitions of Title IX of the Education Amendments of 1972, 20 U. S. C. § 1681 et seq., against gender-based discrimination in any educational program supported by federal funds. A major part of the analysis was that Title IX had been derived from Title VI, that Congress understood that private remedies were available under Title VI, and that Congress intended similar remedies to be available under Title IX. 441 U. S., at 694-703. Furthermore, it was the unmistakable thrust of the Cannon Court’s opinion that the congressional view was correct as to the availability of private actions to enforce Title VI. Id., set 710-716. Two Justices, in dissent, were of the view that private remedies under Title VI itself were not available and that the same was true under Title IX. Those Justices, however, asserted that 42 U. S. C. § 1983 was available to enforce the proscriptions of Title VI and Title IX where the alleged discriminatory practices were being carried on under the color of state law. Id., at 717-730 (White, J., dissenting, joined by Blackmun, J.). Thus at least eight Justices in Cannon were of the view that Title VI and Title IX could be enforced in a private action against a state or local agency receiving federal funds, such as the respondent Department. See also Maine v. Thiboutot, 448 U. S. 1 (1980).
B
Petitioners, however, are not entitled to a “make whole” remedy for respondents’ Title VI violations. Whether a litigant has a cause of action “is analytically distinct and prior to the question of what relief, if any, a litigant may be entitled to receive.” Davis v. Passman, 442 U. S. 228, 239 (1979). The usual rule is that where legal rights have been invaded and a cause of action is available, a federal court may use any available remedy to afford full relief. Bell v. Hood, 327 U. S. 678, 684 (1946). The general rule nevertheless yields where necessary to carry out the intent of Congress or to avoid frustrating the purposes of the statute involved.
For example, in Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U. S. 11 (1979), the Court found that a private right of action for only limited relief could be implied under the Investment Advisers Act of 1940, 15 U. S. C. §80b-l et seq., which prohibits certain practices in connection with investment advisory contracts. Section 215 of the Act declared that contracts whose formation or performance would violate the Act were void, and the Court concluded that Congress intended “that the customary legal incidents of voidness would follow, including the availability of a suit for rescission or for an injunction against continued operation of the contract.” 444 U. S., at 19. But the Court refused to allow recovery of monetary relief in a private suit alleging violations of the Act, stating that, in the absence of a contrary legislative intent, “where a statute expressly provides a particular remedy or remedies, a court must be chary of reading others into it.” Ibid.
We have also indicated that “make whole” remedies are not ordinarily appropriate in private actions seeking relief for violations of statutes passed by Congress pursuant to its “power under the Spending Clause to place conditions on the grant of federal funds.” Pennhurst State School and Hospital v. Halderman, 451 U. S. 1, 15 (1981). This is because the receipt of federal funds under typical Spending Clause legislation is a consensual matter: the State or other grantee weighs the benefits and burdens before accepting the funds and agreeing to comply with the conditions attached to their receipt. Typically, before funds are advanced, the appropriate federal official will determine whether the grantee’s plan, proposal, or program will satisfy the conditions of the grant or other extension of federal funds, and the grantee will have in mind what its obligations will be. When in a later private suit brought by those for whose benefit the federal money was intended to be used it is determined, contrary to the State’s position, that the conditions attached to the fluids are not being complied with, it may be that the recipient would rather terminate its receipt of federal money than assume the unanticipated burdens.
Thus, the Court has more than once announced that in fashioning remedies for violations of Spending Clause statutes by recipients of federal funds, the courts must recognize that the recipient has “alternative choices of assuming the additional costs” of complying with what a court has announced is necessary to conform to federal law or of “not using federal funds” and withdrawing from the federal program entirely. Rosado v. Wyman, 397 U. S. 397, 420-421 (1970). Although a court may identify the violation and enjoin its continuance or order recipients of federal funds prospectively to perform their duties incident to the receipt of federal money, the recipient has the option of withdrawing and hence terminating the prospective force of the injunction. Pennhurst State School and Hospital v. Halderman, supra, reiterated the Rosado approach: Remedies to enforce spending power statutes must respect the privilege of the recipient of federal funds to withdraw and terminate its receipt of federal money rather than assume the further obligations and duties that a court has declared are necessary for compliance. 451 U. S., at 29-30, 30, n. 23; id., at 53-55 (White, J., dissenting in part). The Court noted that “in no [Spending Clause] case . . . have we required a State to provide money to plaintiffs, much less required” a State to assume more burdensome obligations. Id., at 29.
> HH
Since the private cause of action under Title VI is one implied by the judiciary rather than expressly created by Congress, we should respect the foregoing considerations applicable in Spending Clause cases and take care in defining the limits of this cause of action and the remedies available thereunder. Because it was found that there was no proof of intentional discrimination by respondents, I put aside for present purposes those situations involving a private plaintiff who is entitled to the benefits of a federal program but who has been intentionally discriminated against by the administrators of the program. In cases where intentional discrimination has been shown, there can be no question as to what the recipient’s obligation under the program was and no question that the recipient was aware of that obligation. In such situations, it may be that the victim of the intentional discrimination should be entitled to a compensatory award, as well as to prospective relief in the event the State continues with the program.
However that may be, the Court of Appeals in this case did not disturb the District Court’s finding that there was no intentional discrimination on racial grounds. The discrimination was unintentional and resulted from the disproportionate impact of the entry-level tests on racial minorities. In this and similar situations, it is not immediately obvious what the grantee’s obligations under the federal program were and it is surely not obvious that the grantee was aware that it was administering the program in violation of the statute or regulations. In such cases, proof of discriminatory impact does not end the matter. If the grantee can bear the burden of proving some “business necessity” for practices that have discriminatory impact, it has a complete affirmative defense to claims of violation. Griggs v. Duke Power Co., 401 U. S., at 431. In the typical case where deliberate discrimination on racial grounds is not shown, the recipient will have at least colorable defenses to charges of illegal disparate-impact discrimination, and it often will be the case that, prior to judgment, the grantee will not have known or have had compelling reason to know that it had been violating the federal standards. Hence, absent clear congressional intent or guidance to the contrary, the relief in private actions should be limited to declaratory and injunctive relief ordering future compliance with the declared statutory and regulatory obligations. Additional relief in the form of money or otherwise based on past unintentional violations should be withheld.
The foregoing considerations control decision in this case. I note first that Title VI is spending-power legislation:
“It is not a regulatory measure, but an exercise of the unquestioned power of the Federal Government to ‘fix the terms on which Federal funds shall be disbursed.’ Oklahoma v. Civil Service Commission, 330 U. S. 127, 143 (1947). No recipient is required to accept Federal aid. If he does so voluntarily, he must take it on the conditions on which it is offered.” 110 Cong. Rec. 6546 (1964) (Sen. Humphrey).
Accord, id., at 1527 (memorandum by Rep. Celler) (validity of Title VI “rests on the power of Congress to fix the terms on which Federal funds will be made available”); id., at 6562 (Sen. Kuchel); id., at 7063 (Sen. Pastore). Title VI rests on the principle that “taxpayers’ money, which is collected without discrimination, shall be spent without discrimination.” Id., at 7064 (Sen. Ribicoff). Accord, id., at 7054-7055, 7062 (Sen. Pastore); id., at 7102 (Sen. Javits); id., at 6566 (memorandum by the Republican Members of the House Committee on the Judiciary). The mandate of Title VI is “[v]ery simple. Stop the discrimination, get the money; continue the discrimination, do not get the money.” Id., at 1542 (Rep. Lindsay). Title VI imposes no obligations but simply “ ‘extends an option’” that potential recipients are free to accept or reject. Id., at 1527 (memorandum by Rep. Celler) (quoting Massachusetts v. Mellon, 262 U. S. 447, 480 (1923)). This legislative history clearly shows that Congress intended Title VI to be a typical “contractual” spending-power provision.
Since Title VI is Spending Clause legislation, it is presumed that private litigants seeking to enforce compliance with its terms are entitled to no more than the limited remedy deemed available to the plaintiffs in Pennhurst. The inquiry is not at this point complete, however, because, like all rules of statutory construction, the Pennhurst presumption must “yield ... to persuasive evidence of contrary legislative intent.” Transamerica, 444 U. S., at 20. As in Trans-america, however, the relevant legislative history of Title VI reveals that “what evidence of intent exists in this case, circumstantial though it may be, weighs against the implication of a private right of action for a monetary award in a case such as this,” ibid., at least absent proof of intentional discrimination.
Title VI does not explicitly allow for any form of a private right of action. This fact did not go unnoticed by Senators Keating and Ribicoff, who unsuccessfully proposed an amendment adding to Title VI a provision expressly allowing the institution of “a civil action or other proper proceeding for preventive relief, including an application for a permanent or temporary injunction, restraining order, or other order, . . . by the person aggrieved.” 109 Cong. Rec. 15375 (1963). Senator Keating explained that, under this proposal, if someone violated Title VI, funds could be denied or “a suit for specific performance of the nondiscrimination requirement could be brought... by the victim of the discrimination.” Id., at 15376. The relevant language of the proposed amendment was identical to that of § 204(a) of the Civil Rights Act of 1964, 42 U. S. C. § 2000a-3(a), the provision creating a private right of action to enforce Title II of the Act, which deals with discrimination in public accommodations. Suits under § 204(a) are “private in form only. When a plaintiff brings an action under that Title, he cannot recover damages. If he obtains an injunction, he does so not for himself alone but also as a ‘private attorney general/ vindicating a policy that Congress considered of the highest priority.” Newman v. Piggie Park Enterprises, 390 U. S. 400, 401-402 (1968). Senator Keating thought that elementary fairness required that victims of Title VI-proscribed discrimination be accorded the same private right of action as allowed in the “proposed education and public accommodations titles of the [Civil Rights] bill.”
The Keating-Ribicoff proposal was not included in Title VI, but the important point for present purposes is that even the most ardent advocates of private enforcement of Title VI contemplated that private plaintiffs would only be awarded “preventive relief.” Like the drafters of Title II, they did not intend to allow private plaintiffs to recover monetary awards. Although the expressed intent of Senators Keating and Ribicoff is alone not determinative of whether a compensatory remedy may be obtained in a private action to enforce Title VI, “it is one more piece of evidence that Congress did not intend to authorize a cause, of action for anything beyond limited equitable relief.” Transamerica Mortgage Advisors, Inc. v. Lewis, supra, at 22. Surely, it did not intend to do so where intentional discrimination is not shown.
The remaining indications of congressional intent are also circumstantial, but they all militate in favor of the conclusion that only prospective relief ordering compliance with the terms of the grant is appropriate as a private remedy for Title VI violations in cases such as this. The “greatest possible emphasis” was given to the fact that the “real objective” of Title VI was “the elimination of discrimination in the use and receipt of Federal funds.” 110 Cong. Rec. 6544 (1964) (Sen. Humphrey). See also id., at 7062 (Sen. Pastore). The remedy of termination of assistance was regarded as “a last resort, to be used only if all else fails,” because “cutoffs of Federal funds would defeat important objectives of Federal legislation, without commensurate gains in eliminating racial discrimination or segregation.” Id., at 6544, 6546 (Sen. Humphrey).
To ensure that this intent would be respected, Congress included an explicit provision in § 602 of Title VI that requires that any administrative enforcement action be “consistent with achievement of the objectives of the statute authorizing the financial assistance in connection with which the action is taken.” 42 U. S. C. §2000d-l. Although an award of damages would not be as drastic a remedy as a cutoff of funds, the possibility of large monetary liability for unintended discrimination might well dissuade potential nondiscriminating recipients from participating in federal programs, thereby hindering the objectives of the funding statutes. See 633 F. 2d, at 261-262 (opinion of Meskill, J.).
In summary, there is no legislative history that in any way rebuts the Pennhurst presumption that only limited injunc-tive relief should be granted as a remedy for unintended violations of statutes passed pursuant to the spending power. What little evidence there is evinces an intent not to allow any greater relief. I conclude that compensatory relief, or other relief based on past violations of the conditions attached to the use of federal funds, is not available as a private remedy for Title VI violations not involving intentional discrimination.
V
If the relief unavailable under Title VII and ordered under Title VI is the kind of relief that should be withheld in enforcing a Spending Clause statute, the Court should affirm the judgment of the Court of Appeals without more. Only if all or some of this relief is the kind of declaratory or prospective relief that private enforcement of Title VI properly contemplates should the Court of Appeals be reversed in whole or in part. To resolve this matter, I now consider the items of relief ordered by the District Court to determine if any element is a permissible injunctive remedy.
Although the Eleventh Amendment cases are not dispos-itive here, in holding that only prospective relief is available to remedy violations of federal law by state officials, the Court in Edelman v. Jordan, 415 U. S. 651, 667 (1974), observed that the difference between permissible and impermissible relief “will not in many instances be that between day and night.” It seems as patent here as in the Eleventh Amendment context that the relief cannot include a monetary award for past wrongs, even if the award is in the form of “equitable restitution” instead of damages. See id., at 665-667. However, prospective relief need not be “totally without effect on the [defendant’s] revenues”; injunctive relief is permissible even if it means that the defendants, in order to shape their conduct to the mandate of the court’s decree, will have to spend more money “than if they had been left free to pursue their previous course of conduct.” Id., at 667-668. The key question for present purposes is whether the decree requires the payment of funds or grants other relief, “not as a necessary consequence of compliance in the future with a substantive federal-question determination, but as a form of compensation” or other relief based on or flowing from violations at a prior time when the defendant “was under no court-imposed obligation to conform to a different standard.” Id., at 668.
The District Court in the present case granted a number of relatively discrete items of relief. First, each class member was awarded constructive seniority, which included the right to: (1) “all monetary entitlements which [the class members] would have received had they been appointed on their constructive seniority date,” including backpay and back medical and insurance benefits; and (2) all other entitlements relative to the award of constructive seniority, including salary, benefits, and pension rights. Also, respondents were directed to give a sergeant’s examination to those class members whose constructive seniority would have entitled them to take the last such examination. Finally, in an effort to insure that future hiring practices would be nondiscriminatory, respondents were ordered to consult with petitioners on the preparation and use of future police officer examinations for the next two years, and to provide petitioners with race and ethnicity information regarding the scores of the next scheduled examination. App. A99-A107.
On the one hand, it is obvious that the award of backpay and back benefits constitutes relief based upon past conduct no longer permissible; it therefore should not stand. On the other hand, it is without doubt that the portion of the order requiring consultation to insure that future examinations will not have discriminatory effects constitutes permissible injunc-tive relief aimed at conforming respondents’ future conduct to the declared law.
This leaves the award of constructive seniority for purposes of future entitlements: the right to take the special sergeant’s examination ordered by the District Court and the right to an increase of salary and benefits to the level warranted by the constructive seniority. Because such an award affects only the future conduct of a defendant, it arguably could be categorized as permissible prospective relief. I conclude, however, that an award of constructive seniority, for any purpose whatsoever, must be deemed impermissible retroactive relief.
In Franks v. Bowman Transportation Co., 424 U. S. 747, 766-767 (1976), we identified two types of seniority — “benefit” and “competitive status.” The first of these, “which determines pension rights, length of vacations, size of insurance coverage and unemployment benefits, and the like, is analogous to backpay. . .
Question: What treatment did the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed?
A. stay, petition, or motion granted
B. affirmed
C. reversed
D. reversed and remanded
E. vacated and remanded
F. affirmed and reversed (or vacated) in part
G. affirmed and reversed (or vacated) in part and remanded
H. vacated
I. petition denied or appeal dismissed
J. modify
K. remand
L. unusual disposition
Answer:
|
sc_lcdisposition
|
I
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the treatment the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed, that is, whether the court below the Supreme Court (typically a federal court of appeals or a state supreme court) affirmed, reversed, remanded, denied or dismissed the decision of the court it reviewed (typically a trial court). Adhere to the language used in the "holding" in the summary of the case on the title page or prior to Part I of the Court's opinion. Exceptions to the literal language are the following: where the Court overrules the lower court, treat this a petition or motion granted; where the court whose decision the Supreme Court is reviewing refuses to enforce or enjoins the decision of the court, tribunal, or agency which it reviewed, treat this as reversed; where the court whose decision the Supreme Court is reviewing enforces the decision of the court, tribunal, or agency which it reviewed, treat this as affirmed; where the court whose decision the Supreme Court is reviewing sets aside the decision of the court, tribunal, or agency which it reviewed, treat this as vacated; if the decision is set aside and remanded, treat it as vacated and remanded.
NASH v. FLORIDA INDUSTRIAL COMMISSION et al.
No. 48.
Argued November 9, 1967.
Decided December 5, 1967.
Michael H. Gottesman argued the cause for petitioner. With him on the briefs were Bernard Kleiman, Elliot Bredhoff, George H. Cohen, Jerome Cooper and Neal Rutledge.
Glenn L. Greene, Jr., argued the cause and filed a brief for respondents Stanley Works et al.
Solicitor General Marshall, Robert S. Rifkind, Arnold Ordman, Dominick L. Manoli and Norton J. Come filed a memorandum for the National Labor Relations Board, as amicus curiae, urging reversal.
Mr. Justice Black
delivered the opinion of the Court.
Section 10 of the National Labor Relations Act, 49 Stat. 453, as amended, 29 U. S. C. § 160, authorizes the National Labor Relations Board to initiate unfair labor practice proceedings whenever some person charges that another person has committed such practices. The Board cannot start a proceeding without such a charge being filed with it. See, e. g., National Labor Relations Board v. National Licorice Co., 104 F. 2d 655 (C. A. 2d Cir.), modified on other grounds, 309 U. S. 350; Local 138, Operating Engineers (Skura), 148 N. L. R. B. 679, 681. The crucial question presented here is whether a State can refuse to pay its unemployment insurance to persons solely because they have preferred unfair labor practice charges against their former employer.
The facts are stipulated and need not be stated at length. The petitioner, Mrs. Nash, who previously had been out on strike against her employer, the Stanley Works and Stanley Building Specialties, was, pursuant to union-management agreement, reinstated to her former job on April 14, 1965. Approximately five weeks later, on May 16, 1965, she was laid off by the company because of alleged “slow production,” meaning that the company had insufficient work to warrant her retention. Mrs. Nash was unemployed from this time until October 5, 1965, when the company voluntarily called her back to work. She has been allowed unemployment compensation, under Florida Statutes, chapter 443, from the time of her discharge on May 16, up to June 17, but denied any compensation from June 17 to October 5. The reason given for this denial was that on June 17 she filed an unfair labor practice charge against her employer seeking reinstatement and back pay on the ground that the employer had actually laid her off because of her union activities in violation of the National Labor Relations Act, and that this charge was still pending on October 5 when she resumed work. In making this ruling the Florida Industrial Commission relied on § 443.06 of the Florida Unemployment Compensation Law which provides:
“An individual shall be disqualified for [unemployment] benefits .... (4) For any week with respect to which the commission finds that his total or partial unemployment is due to a labor dispute in active progress which exists at the factory, establishment or other premises at which he is or was last employed . . .
The Commission held that the filing of the unfair labor practice charge brought petitioner within the wording of the Act in that her “unemployment” then became “due to a labor dispute.” Thus the sole reason that petitioner was disqualified from compensation was that she filed an unfair labor practice charge. According to the Commission, the act of filing was the determinative factor under Florida law which rendered petitioner ineligible for unemployment compensation. The District Court of Appeal of Florida, Third District, denied per curiam petitioner’s application for writ of certiorari to review the determinations of the Florida Industrial Commission Unemployment Compensation Board of Review. Since such denial by the Florida District Court of Appeal apparently precludes further state review, we granted certiorari because of the important constitutional question involved, specifically whether the Commission’s ruling violates the Supremacy Clause of the Constitution (Art. VI, cl. 2) because it allegedly “frustrates” enforcement of the National Labor Relations Act, 49 Stat. 449, 29 U. S. C. § 151 et seq.
The National Labor Relations Act is a comprehensive code passed by Congress to regulate labor relations in activities affecting interstate and foreign commerce. As such it is of course the law of the land which no state law can modify or repeal. Implementation of the Act is dependent upon the initiative of individual persons who must, as petitioner has done here, invoke its sanctions through filing an unfair labor practice charge. Congress has made it clear that it wishes all persons with information about such practices to be completely free from coercion against reporting them to the Board. This is shown by its adoption of § 8 (a) (4) which makes it an unfair labor practice for an employer to discriminate against an employee because he has filed charges. See John Hancock Mutual Life Insurance Co. v. National Labor Relations Board, 89 U. S. App. D. C. 261, 263-264, 191 F. 2d 483, 485-486; National Labor Relations Board v. Lamar Creamery Co., 246 F. 2d 8, 9-10 (C. A. 5th Cir.); National Labor Relations Board v. Syracuse Stamping Co., 208 F. 2d 77, 80 (C. A. 2d Cir.). And it has been held that it is unlawful for an employer to seek to restrain an employee in the exercise of his right to file charges. National Labor Relations Board v. Clearfield Cheese Co., 213 F. 2d 70 (C. A. 3d Cir.); National Labor Relations Board v. Gibbs Corp., 308 F. 2d 247 (C. A. 5th Cir.); Roberts v. National Labor Relations Board, 121 U. S. App. D. C. 297, 350 F. 2d 427.
We have no doubt that coercive actions which the Act forbids employers and unions to take against persons making charges are likewise prohibited from being taken by the States. The action of Florida here, like the coercive actions which employers and unions are forbidden to engage in, has a direct tendency to frustrate the purpose of Congress to leave people free to make charges of unfair labor practices to the Board. Florida has applied its Unemployment Compensation Law so that an employee who believes he has been wrongly discharged has two choices: (1) he may keep quiet and receive unemployment compensation until he finds a new job or (2) he may file an unfair labor practice charge, thus under Florida procedure surrendering his right to unemployment compensation, and risk financial ruin if the litigation is protracted. Even the hope of a future award of back pay may mean little to a man of modest means and heavy responsibilities faced with the immediate severance of sustaining funds. It appears obvious to us that this financial burden which Florida imposes will impede resort to the Act and thwart congressional reliance on individual action. A national system for the implementation of this country’s labor policies is not so dependent on state law. Florida should not be permitted to defeat or handicap a valid national objective by threatening to withdraw state benefits from persons simply because they cooperate with the Government’s constitutional plan.
In holding that this Florida law as applied in this case conflicts with the Supremacy Clause of the Constitution we but follow the unbroken rule that has come down through the years.
In McCulloch v. Maryland, 4 Wheat. 316, 436, decided in 1819, this Court declared the States devoid of power “to retard, impede, burden, or in any manner control, the operations of the constitutional laws enacted by Congress to carry into execution the powers vested in the general government.” In Davis v. Elmira Savings Bank, 161 U. S. 275, decided in 1896, this Court declared that a state law cannot stand that “either frustrates the purpose of the national legislation or impairs the efficiency of those agencies of the Federal government to discharge the duties, for the performance of which they were created.” Id., at 283. And again in Hill v. Florida, 325 U. S. 538, 542-543, decided in 1945, this Court struck down a labor regulation saying it stood “ 'as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. . . .’ ” Id., at 542.
All of the cases just cited and many more support our invalidation under the Supremacy Clause of the Florida Unemployment Compensation Law as here applied.
Reversed.
Mr. Justice Marshall took no part in the consideration or decision of this case.
The Florida Supreme Court seems to have decided that it lacks jurisdiction by appeal to consider per curiam denials of certiorari by the Florida District Court of Appeal. Callendar v. State, 181 So. 2d 529. While it is true that a district court of appeal may certify a question “of great public interest” to the Florida Supreme Court, this is done upon the district court of appeal's own motion, and although litigants may file a suggestion that a particular question be certified, such suggestion has been declared to have “no legal effect.” See Whitaker v. Jacksonville Expressway Authority, 131 So. 2d 22 (1st D. C. App. Fla. 1961). Thus, it is impossible for us to say that under Florida law petitioner here had any right to call upon the State Supreme Court for review. In these circumstances, we therefore are unable to say that the District Court of Appeal was not the highest court in Florida wherein a decision could be had as required by 28 U. S. C. § 1257 (3).
Because of our disposition of the case on Supremacy Clause grounds, we need not consider petitioner’s alternative argument that such ruling violates her privileges and immunities of United States citizenship in contravention of the Fourteenth Amendment.
Although § 10 (a) of the Act empowers the Board to prevent unfair labor practices, and thus to protect the employees’ § 7 rights, § 10 (b) conditions the exercise of that power on the filing of charges; the Board cannot initiate its own processes.
Respondents suggest that petitioner might enjoy a windfall if she was paid compensation and was subsequently awarded back pay by the Labor Board. This argument is unresponsive to the issue in dispute, however, since a State is free to recoup compensation payments made during any period covered by a back-pay award. See National Labor Relations Board v. Gullett Gin Co., 340 U. S. 361, 365, n. 1.
Question: What treatment did the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed?
A. stay, petition, or motion granted
B. affirmed
C. reversed
D. reversed and remanded
E. vacated and remanded
F. affirmed and reversed (or vacated) in part
G. affirmed and reversed (or vacated) in part and remanded
H. vacated
I. petition denied or appeal dismissed
J. modify
K. remand
L. unusual disposition
Answer:
|
songer_circuit
|
F
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case.
Boyce E. CHUMBLER, Plaintiff-Appellant, v. Marguerite Wallace McCLURE, Executrix of the Estate of Dr. C. C. McClure, Jr., and Ayerst Laboratories, Defendants-Appellees.
No. 74-1169.
United States Court of Appeals, Sixth Circuit.
Oct. 23, 1974.
Franklin D. Brabson, W. Gary Blackburn, Malcolm L. McCune, Blackburn & McCune, Nashville, Tenn., Joseph W. Bolin, Clinton, Ky., for plaintiff-appellant.
W. A. Moody, Carrol D. Kilgore, William J. Harbison, Nashville, Tenn., for defendants-appellees.
Before PHILLIPS, Chief Judge, McCREE, Circuit Judge, and RUBIN , District Judge.
Honorable Carl B. Rubin, United States District Judge for the Southern District of Ohio, sitting by designation.
OPINION
CARL B. RUBIN, District Judge.
This matter comes before the Court as a diversity case alleging medical malpractice against Marguerite Wallace McClure, Executrix of the Estate of Doctor C. C. McClure, Jr., and product liability against Ayerst Laboratories, Inc. The trial was to a jury and the trial judge directed a verdict in favor of defendant Ayerst at the conclusion of the plaintiff’s ease and directed a verdict in favor of the defendant Estate of Dr. C. C. McClure, Jr. at the conclusion of all evidence. We affirm.
The factual background of this case indicates that in April, 1971, the plaintiff consulted Dr. C. C. McClure, a neurosurgeon in Nashville, Tennessee, in connection with injuries sustained by Chumbler in an electrical explosion. Dr. McClure diagnosed Chumbler’s illness as cerebral vascular insufficiency and prescribed a female hormone known as Estrogen, produced and marketed commercially as Premarin by defendant Ayerst Laboratories. Dr. McClure also prescribed Pavabid, a drug which dilates blood vessels. Known side effects of Premarin include an enlargement of the breasts and a loss of libido. While plaintiff also sought damages for impotence and menopausal symptoms, that issue need not be reached.
Plaintiff’s appeal raises issues of whether the District Court acted properly in directing verdicts for the defendants on whether Dr. McClure violated the accepted medical standards in his community in his treatment of Chumbler and whether defendant Ayerst acted negligently in the production or sale of Pre-marin. Further, the plaintiff-appellant asserts that the District Court erred in excluding all testimony on the issue of plaintiff’s informed consent to his drug treatments.
The law is well settled in this circuit and elsewhere that in a diversity case, the trial judge is bound by state law as to the sufficiency of evidence. Moskowitz v. Peariso, 458 F.2d 240 (6th Cir. 1972); Thompson v. Illinois Central Railroad Company, 423 F.2d 1257 (6th Cir. 1970); Dean v. Southern Railway Co., 327 F.2d 757 (6th Cir. 1964). This Court, in Wallace v. Louisville & N. R. Co., 332 F.2d 97 (6th Cir. 1964), found that the rule in Tennessee required the court:
“to look to all the evidence, to take as true the evidence for the plaintiff, to discard all countervailing evidence, to take the strongest legitimate view of the evidence for the plaintiff, to allow all reasonable inferences from it in his favor; and if then there is any dispute as to any material determinative evidence, or any doubt as to the conclusion to be drawn from the whole evidence, the motion for a directed verdict must be denied.” Poe v. Atlantic Coast Line Railroad Co., 205 Tenn. 276, 284, 326 S.W.2d 461, 464 (1958); Baggett v. Louisville & Nashville Railroad Co., [51 Tenn.App. 175] 365 S.W.2d 902, 904-905 (1960).
Accord, Osborne v. Frazor, 58 Tenn. App. 15, 425 S.W.2d 768, 774 (1968); Goings v. Aetna Cas. & Sur. Co., 491 S.W.2d 847 (Tenn.App.1972). The rule remains the same in Tennessee today and has recently been summarized in other terms. See, e. g., Phelps v. Magnovox Co., 497 S.W.2d 898 (Tenn.App.1972) (no evidence in the entire record from which a jury could have based a verdict for the plaintiff); Keller v. East Tennessee Prod. Credit Ass’n., 501 S.W.2d 810 (Tenn.App.1973) (where a reasonable mind could only draw one conclusion from the evidence).
Against this standard, we find that the trial court did not err in directing a verdict for defendant Ayerst Laboratories. Plaintiff failed to prove participation of Ayerst in any alleged experiments by Dr. McClure, any over-promotion, or a lack of warning concerning side effects of Premarin. From the evidence adduced at trial, we find that taking the strongest legitimate view of the evidence for the plaintiff and resolving all inferences in his favor, reasonable minds could only have found in favor of defendant Ayerst Laboratories. Based upon the foregoing conclusion, we find that the District Court acted properly in directing a verdict for defendant Ayerst.
We reach the same conclusion concerning the directed verdict for the Estate of Dr. McClure. Since Dr. McClure was deceased, the plaintiff was confronted with the Tennessee Dead Man’s Statute, Tenn.Code Ann. § 24-105 , see Worthington Corp. v. Lease Management, Inc., 352 F.2d 24 (6th Cir. 1965), cert. den. 383 U.S. 937, 86 S.Ct. 1068, 15 L.Ed.2d 854 (1967). Its applicability to tort cases in Tennessee is well established, See, e. g., Christofiel v. Johnson, 40 Tenn.App. 197, 290 S.W.2d 215 (1956) While the general approach is to construe narrowly the exclusion of testimony, McDonald v. Allen, 67 Tenn. 446 (1874); Christofiel v. Johnson, supra, “transactions” encompass a large range of excludable testimony on things done in the deceased’s presence to which he might testify from his own personal knowledge. Waggoner v. Dorris, 17 Tenn.App. 420, 68 S.W.2d 142 (1933).
We hold that the trial court did not err in excluding all testimony on the alleged lack of informed consent by the plaintiff-appellant concerning his drug treatment. Such testimony would inevitably relate to conversations with the deceased doctor or to transactions involving that doctor. The testimony which plaintiff sought to proffer as to his state of mind as it bore on informed consent also falls well within the bounds of proscribed testimony and well outside the “independent facts” exception to the Dead Man’s Statute.
Plaintiff asserted that proof of his informed consent is an affirmative defense and, consequently, that the burden lies upon the defendant. The trial court properly found that the burden rested on the plaintiff. Since consent does not ordinarily relieve a physician from liability where he has not conformed to accepted medical standards for treatment and since the party offering testimony barred by the Dead Man’s Statute has the burden of proving competency, we believe the trial judge was correct. Martin v. Morris, 163 Tenn. 186, 42 S.W.2d 207 (1931); Meadows v. Patterson, 21 Tenn.App. 283, 109 S.W.2d 417 (Tenn.Sup.Ct.1937); Story v. Saunders, 27 Tenn. 663 (1848). The harshness of this statute may be as severe as plaintiff argues in effectively making it impossible to obtain a judgment against any deceased doctor. While not deciding this issue, this Court must point out that relief lies not with the courts but with the Legislature of the State of Tennessee.
As the trial court properly refused to admit testimony barred by the Dead Man’s Statute, we may now consider plaintiff’s third ground for appeal — that a directed verdict in favor of the doctor’s estate was erroneous. Deviation from accepted medical practices and community standards is a prerequisite for maintenance of a medical malpractice suit. Campbell v. Oliva, 424 F.2d 1244 (6th Cir. 1970); Perkins v. Park View Hospital, Inc., 61 Tenn.App. 458, 456 S.W.2d 277 (1970); Ison v. McFall, 55 Tenn.App. 326, 400 S.W.2d 243 (1964); Wooten v. Curry, 50 Tenn. App. 549, 362 S.W.2d 820 (1961); Beech v. Hunter, 14 Tenn.App. 88 (1931).
The record in this case is devoid of evidence of such deviation. The most favorable interpretation that may be placed on the testimony adduced at trial below is that there is a division of opinion in the medical profession regarding the use of Premarin in the treatment of cerebral vascular insufficiency, and that Dr. McClure was alone among neurosurgeons in Nashville in using such therapy. The test for malpractice and for community standards is not to be determined solely by a plebiscite. Where two or more schools of thought exist among competent members of the medical profession concerning proper medical treatment for a given ailment, each of which is supported by responsible medical authority, it is not malpractice to be among the minority in a given city who follow one of the accepted schools. Gresham v. Ford, 192 Tenn. 310, 241 S.W.2d 408 (1951); Perkins v. Park View Hosp. Inc., supra; Ison v. McFall, supra; Ball v. Mallinkrodt Chem. Works, 53 Tenn. App. 218, 381 S.W.2d 563 (1964); Wooten v. Curry, supra.
Were this not true, an anomaly might occur where nine neurosurgeons in Memphis, Tennessee, prescribed Premarin for cerebral vascular insufficiency and where nine neurosurgeons in Nashville prescribed other treatment. Should one Memphis neurosurgeon move to Nashville and continue to prescribe Premarin, he might be liable for malpractice. Such a result would impose a standard of practice upon the medical profession which would be totally unsupported by logic and unreasonable in concept. See the cases cited, supra.
Scrutiny of the testimony below leads to no other conclusion. The doctors who testified asserted only that Dr. McClure was alone in Nashville among neurosurgeons in prescribing Premarin. Accompanying testimony as to the medical acceptability of this practice and of the drug itself leave no other possible outcome other than plaintiff’s failure to present even a prima facie case of malpractice. Under Tennessee law on directed verdicts, we find that the trial court acted properly in directing a verdict for the doctor’s estate at the close of all the evidence. Accordingly, for this and reasons mentioned before, the actions of the trial court, both as to defendant Estate of Dr. C. C. McClure, Jr. and defendant Ayerst Laboratories, Inc. are hereby affirmed.
APPENDIX
Testimony of Dr. Ray W. Hester, p. 78:
Q. Do you of your knowledge know of anyone in this community that’s a neurosurgeon or a neurologist that prescribes Premarin in the treatment of cerebral vascular insufficiency other than Dr. McClure?
A. Well, Dr. McClure did, and of my own personal knowledge, I don’t know of any of the other neurosurgeons who do, No, sir.
Page 91:
Q. Now, based on that, and based on your knowledge and based on reasonable medical certainty, etc. should that drug [Premarin] have been used on Boyce Chumbler for anything other than pro-static carcinoma?
A. Again, that’s a difficult question to answer. First of all, we have just quoted two articles that one is for and the other is against. Now there are other articles in the literature where the drug has been used and has been tried and they also have conflicting evidence.
BY THE COURT: Are you saying there is a split of opinion in the medical profession as to whether or not this drug should or should not be used for a vascular insufficiency or vascular accident?
A. Yes, sir. At least at one time there was and I think the physician must come to his own conclusion from what, you know, has been read and his medical knowledge at the time . . .
Page 98:
Q. . . . As I understand and you correct me if I am wrong, there are two schools of thought in medicine as to the use of Premarin in the treatment of a possible vascular situation ?
A. Yes, sir.
Q. All right. One school of thought promotes and uses Premarin, another school of thought to which you belong does not believe in the use of Premarin ?
A. That’s correct.
Page 104:
Q. Now, as you are a neurosurgeon and as you do meet with a group of neurosurgeons, do you have knowledge of the standard that is followed by internists, general practitioners, general surgeons and family doctors in this area with regard to the diagnosis and treatment of symptoms similar to Mr. Chum-bler’s . . .
BY THE COURT: Just let me ask him — -Dr., is this condition we are talking about, is it a medical condition which based on the local standards of this community falls primarily in the field of neurosurgery ?
A. No, sir.
Q. Then I believe I asked you, are you familiar with the standard that is followed by internists, by general surgeons and family practitioners, just plain old doctors in this area, in treating these conditions and prescribing Premarin ?
A. I am not nearly so familiar with that and .
BY THE COURT: Well, now, Doctor, I don’t mean to be abrupt about this matter, but in this matter I think you are going to have to say either you are or you are not.
A. Well, I am not.
Page 119:
Q. Dr. Hester, you didn’t intend to tell the jury, did you, that Dr. McClure didn’t use the standard of care requisite for neurosurgeons in this community in diagnosing the man’s condition, did you ?
A. No, sir, I did not.
Q. . Now, he had a different idea about the medication that might be used from your own ideas, I understand it?
A. Yes, he did.
Q. Are you saying he was violating the professional standards in the community in prescribing it [Premarin], doctor ?
A. Well, I think I have already answered that question earlier when I said the standard in our community was not to prescribe Premarin for cerebral vascular insufficiency and to my knowledge none of us do. Now whether this is just opinions or whether you are going to call this the standard, I don’t know how you are going to arrive at that. In Memphis, maybe the neurosurgeons do, I don’t know, but here we don’t go so far except for Dr. McClure.
Q. All right, but now you are aware that it is widely used by many doctors for many different things, aren’t you ?
A. Yes, sir.
Q. All right, isn’t it a matter of medical judgment which drug to prescribe in the last analysis?
A. It certainly is.
Testimony of Dr. Gerald Feniehel, p. 309:
Q. Doctor, is it your opinion and within that, that Premarin is accepted therapy for cerebral vascular insufficiency?
A. No, it is not.
Q. Is there anyone in this community of neurologists or neurosurgeons that you have knowledge of that uses Premarin in the treatment of cerebral vascular in-sufficiencies ?
A. I can only speak for the neurologists in the city. There are nine. At our last society meeting, of which seven were present, all said they had never used • Premarin for the treatment of cerebral vascular insufficiency . . .
BY THE COURT: ... Are you saying, doctor, that it’s ineffective, is that what you are saying?
A. It has never been demonstrated to be effective as a treatment for cerebral vascular insufficiency.
Page 334:
Q. In the treatment of cerebral vascular problems as it existed beginning in April, 1971, am I correct in assuming there was an honest difference of opinion as to the various approaches among the specialists at that time?
A. Are you referring to all the treatments or just the estrogen therapy?
Q. Any kind of treatment.
A. There have been — that is correct, there is no specific established treatment for cerebral vascular disease.
Q. And especially, some general practitioners honestly disagree as to whether or not there was one proper approach to it?
A. I think they all agreed there was no one established approach.
Page 336:
BY THE COURT: All right, based on the standard that existed in this community in April of 1971, now go ahead and finish your question.
(By Mr. Brabson, continuing)
Q. Was Premarin a drug to use in cerebral vascular insufficiency?
A. ... to the best of my knowledge, Dr. McClure was the only person in the community using Premarin in the treatment of cerebral vascular disease.
Testimony of Dr. Oscar F. Nowell, p. 401:
Q. In your opinion, has Premarin been or can it be an effective medication for the prevention of strokes?
A. In xny way of thinking, yes.
Q. Have you ever used Premarin?
A. Oh, yes, I’ve used it for many years.
Q. And have you—
A. But not for that purpose.
Q. All right, sir, have you ever used Premarin for heart problems?
A. No, I am not a cardiologist . . but I do know it has been recommended for this purpose.
Q. And you do know that it is being used locally for this pux-pose?
A. Yes, sir.
Page 399:
BY THE COURT: Doctor, do you know the standard of medicine in this area with reference to whether or not —I mean with reference to the standard in the medical practice in Nashville, Tennessee ?
A. Yes, sir.
BY THE COURT: All right.:
(By Mr. Moody, continuing)
Q. Doctor, do you know whether or not, basing your knowledge upon the factors that you know about in the practice of medicine in Davidson County, Tennessee, is Premarin used for the treatment of cerebral vascular insufficiency ?
A. Yes, sir.
Q. How is it used and why is it used for that purpose?
A. . .Now the important thing is to enlarge the diameter of these blood vessels so that more blood can get through and at the same time use some kind of drug that will decrease the physiological age of these blood vessels.
Q. Is Premarin one of the drugs?
A. And one of these drugs is Pre-marin to reduce the physiological age of the blood vessels in question . . .
. § 24r-105 states, in pertinent part:
In actions or proceedings by or against executors, administrators, or guardians, in which judgments may be rendered for or against them, neither party shall be allowed to testify against the other as to any transaction with or statement by the testator, intestate, or ward, unless called to testify by the opposite party ....
. See attached Appendix for the salient testimony relating to medical standards in Nashville and elsewhere.
Question: What is the circuit of the court that decided the case?
A. First Circuit
B. Second Circuit
C. Third Circuit
D. Fourth Circuit
E. Fifth Circuit
F. Sixth Circuit
G. Seventh Circuit
H. Eighth Circuit
I. Ninth Circuit
J. Tenth Circuit
K. Eleventh Circuit
L. District of Columbia Circuit
Answer:
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songer_geniss
|
G
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous".
RAINES v. LIGON et al.
Circuit Court of Appeals, Tenth Circuit.
January 15, 1930.
No. 109.
Wellington L. Merwine, of Okmulgee, Okl., for appellant.
Y. R. Biggers, of Wewoka, Okl. (Biggers, Wilson & Aldridge, Pryor & Stokes, and A. M. Fowler, all of Wewoka, Okl., on the brief), for appellees Ligón, Mainard, Gamer, Brixey, and Casey.
0. Dale Wolfe and W. M. Haulsee, both of Wewoka, Okl., for appellee Mathis.
Before LEWIS, PHILLIPS and MeDERMOTT, Circuit Judges.
PHILLIPS, Circuit Judge.
This is a suit in equity brought by Maceo Raines to cancel: (1) A warranty deed running from plaintiff and N. H. Raines, her husband, to J. A. ligón, conveying 120 acres of land in Seminole county, Oklahoma; (2) certain conveyances of undivided fractional interests in the oil, gas and mineral rights therein, from Ligón to W. E. Casey, J. D. Gamer, Mabel Gamer, Herman Shepard and J. L. Mainard; and (3) certain conveyances of undivided fractional interests in the oil, gas and mineral rights therein from Shepard to J. F. Remy and 0. Brixey.
The complaint alleged that the plaintiff is a resident of Springfield, Tennessee; that she had employed one J. A. Burrows, of lima, Oklahoma, as her agent, to sell such tract of land; that, on March 5,1926, an oil well was being drilled in the vicinity of such land; that such well was then producing some oil and gas and was giving indications that it would eome in as a commercial well; that plaintiff had no knowledge of the oil and gas development in the vicinity of such land; that, on March 5, 1926, the above named grantees, with the knowledge that Burrows was plaintiff’s agent, induced Burrows to go to Springfield and negotiate with plaintiff for the conveyance of such land to them for $10,-5Ó0; that such amount was a grossly inadequate consideration; that such grantees, in order to induce Burrows to violate his trust, agreed to pay him a large sum of money, as commission for his services, and to pay his traveling expenses from his home in Oklahoma to Springfield and return; that, pursuant to such agreement with such grantees, Burrows went to Springfield, advised plaintiff to sell such land for $10,500, induced her to execute and deliver a deed for such land to J. A. ligón and concealed from her the fact of the drilling of such well and of the increased value of such land on account thereof.
The complaint further alleged such conveyances of the oil, gas and other mineral rights in such land and that such grantees took such conveyances with the knowledge that Ligón had procured such deed to the land by fraud and deceit.
The complaint tendered a restoration of the amount paid for such land and prayed for cancellation of such deeds and conveyances.
Ligón filed an answer denying specifically the allegations of fraud and alleged that Burrows, as agent for the plaintiff, approached him on March 5,1926, and offered to sell such land to him; that he agreed to buy the land for $15,000; that Burrows thereupon went to the home of plaintiff and procured the deed; that such deed, with sight draft for $10,500 attached, was forwarded to the Farmers’ National Bank at Wewoka, Oklahoma; that plaintiff appeared in person at the bank, on the day the draft was presented to Ligón, and directed the bank not to deliver the deed until further notice from her; that plaintiff then entered into negotiations with Ligón for the sale of the land; that such negotiations eontinued for about fifteen days; that during such period plaintiff was in the immediate vicinity of the land and knew of the oil development near the land; that, as a result of such negotiations, plaintiff sold the land to Ligón for $15,000; that such sum was the reasonable market value of the land.
Each of the other grantees filed separate answers denying the allegations of fraud and alleging that they were bona fide purchasers for a valuable consideration, without notice of such alleged fraud. '
The evidence showed the following facts: Plaintiff was a Negro woman, twenty-five years of age. She resided with her husband, N. H. Raines, a negro physician, in Springfield, Tennessee. Plaintiff employed Burrows, a negro school teacher, who lived in the immediate vicinity of the land, to act as her agent in the sale of the land and authorized him to sell the land for $10,000 cash or $12,-000 — one-third cash and the balance in deferred payments. Burrows was to receive, as his commission, any amount he could sell the land for in excess of the prices above stated. On March 6, 1926, Burrows approached J. L. Mainard, who was acting for himself, Ligón, M. F. Mainard and E. C. Aldridge, and agreed to sell the land to them for $14,000. A deed, reciting a consideration of $10,500, running to Ligón, as grantee, was prepared and delivered to Burrows. J. L. Mainard instructed Burrows to proceed to plaintiff’s home and consummate the transaction at once before some one telegraphed a fabulous offer to plaintiff. Burrows immediately left Wewoka for Springfield and arrived there on March 8, 1926. He remained there one day discussing the trade with plaintiff and her husband. He represented to them that the oil prospects were not promising; that it might be five or six years before there would be any oil development, and that the oil and gas rights were worth only from $25 to $40 per acre, since there was no oil well being drilled near plaintiff’s land. Burrows left Springfield the evening of March 8, 1926, and returned to Wewoka. On March 11, 1926, plaintiff and her husband executed the deed and forwarded it, with a sight draft for $10,-500 attached, through a Springfield bank to the Farmers’ National Bank, together with instructions to deliver the deed upon payment of the draft. While Burrows was in Springfield, Chas. B. Williams approached J. L. Mainard and said that he had a better offer for the land; that he would wire Burrows to cancel the trade unless Mainard would raise the price $1,000. Mainard assented to this demand and agreed to pay $15,000 for the land. On March 11th, 1926, Burrows and Williams entered into a written contract with Ligón. This contract provided that Williams and Burrows should procure a warranty deed for the land from plaintiff and her husband to Ligón and cause it to be delivered, with sight draft attached for $10,500, to the Farmers’ National Bank; that Ligón should deposit $4,500 in the Security Bank of Wewoka; that the Security Bank should pay to Williams and Burrows the sum of $4,500 upon approval of the title to the land. On March 13, 1926, the plaintiff, having received information from Burrows that some question was being raised about the title to the land, left immediately for Lima, Oklahoma, where her uncle, G. V. Gross, lived, for the purpose of clearing the title to such land. Plaintiff arrived at Lima about March 15, '1926. She agreed with J. L. Mainard, who represented Ligón, M. F. Mainard and Aldridge, to have the Springfield bank reduce the draft from $10,500 to $9,000 and that the sum of $1,500 should be used in remedying the defects in the title to the land. J. L. Mainard and his associates paid the draft, after its reduction to $9,000. After some attempts to clear the title to the land, a further contract was entered into on March 25,1926, by which it was agreed that Burrows and Williams should receive $3,500 instead of $4,500; that plaintiff should refund $2,000 of the consideration received by her; that plaintiff should be released from the warranty contained in her deed; and that Burrows and Williams should be released from any claims against them under the contract of March 11. This contract was carried out. The terms of this contract were proposed by Burrows, Williams and plaintiff and the contract was prepared by their lawyer. Plaintiff then returned to Springfield.
Apparently the alleged defects in the title were substantial, because, at the time of the trial of this cause, three lawsuits were pending against Ligón and the other purchasers, by persons who claimed to own interests in the land.
In the latter part of February and the early part of March, 1926, an oil and gas well was being drilled approximately a mile and a quarter north of the tract of land in question. The producing sand was reached at a depthl of 3,982 feet, about February 28, 1926, and the well on that date produced at the rate of 95 barrels of oil per day. It was drilled further into the sand and, on March 6th, at a depth of 4,009 feet the well produced at the rate of 489 barrels of oil per day. The well was completed on March 12th at a depth of 4,012 feet and produced at the rate of 995 barrels of oil per day. .
During the time that plaintiff was in Oklahoma, she was in the vicinity of the land in question and this oil well, and the defendants in no wise concealed from her the drilling of such well and the increased value of the land on account thereof.
The trial court found the issues in favor of the defendants below and entered its decree denying plaintiff any relief. Plaintiff has appealed.
Fraud must he established by clear, satisfactory and convincing evidence. Lalone v. United States, 164 U. S. 255, 257, 17 S. Ct. 74, 41 L. Ed. 425; In re Locust Bldg. Co. (C. C. A. 2) 299 F. 756, 765, 766; United States v. Bucher (C. C. A. 8) 15 F.(2d) 783, 785; United States v. Hays (C. C. A. 10) 35 F.(2d) 948.
£2] When a court of equity has considered conflicting evidence and has made its findings and decree thereon, such findings and decree are presumptively correct and will not be disturbed, in the absence of a serious mistake in the consideration of the evidence or an obvious error in the application of the law thereto. Fienup v. Kleinman (C. C. A.) 5 F.(2d) 137, 141; State of Iowa v. Carr (C. C. A. 8) 191 F. 257, 263; New York L. I. Co. v. Griffith, Adm’r (C. C. A. 10) 35 F.(2d) 945; Youngblood v. Magnolia Petroleum Co. (C. C. A. 10) 35 F.(2d) 578, 579.
The evidence tended to establish that the agent, Burrows, was unfaithful to his trust, but it failed to establish, with the degree of certainty required, that the purchasers of such laud and mineral rights either participated in or had knowledge of any such fraud.
It does not appear that the trial court made any serious mistake in the consideration, of the evidence or any obvious error in the application of the law to the facts.
The decree is affirmed at plaintiff’s costs.
Question: What is the general issue in the case?
A. criminal
B. civil rights
C. First Amendment
D. due process
E. privacy
F. labor relations
G. economic activity and regulation
H. miscellaneous
Answer:
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songer_respond1_1_3
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D
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed 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.
Arnold S. WELLMAN, et al., Plaintiffs-Appellees, v. Fairleigh S. DICKINSON, Jr., Defendant-Appellant.
Nos. 39, 40, Dockets 80-6213, 80-6357.
United States Court of Appeals, Second Circuit.
Argued Dec. 9, 1981.
Decided June 24, 1982.
S. Lee Terry, Jr., Washington, D. C. (Jacob H. Stillman, Associate Gen. Counsel, Elisse B. Walter, Asst. Gen. Counsel, Ruth S. Epstein, Paul Gonson, Sol., Washington, D. C., of counsel), for appellee S. E. C.
Paul M. Bernstein and Kreindler & Kreindler, New York City, Lead Counsel for Stockholder Class and Liaison Counsel (Kaufman, Taylor & Kimmel, New York City, Co-Lead Counsel for Stockholder Class, Harvey Greenfield, New York City, Co-Counsel for Class Plaintiff Wellman, Pomerantz, Levy, Haudek & Block, New York City, Lead Counsel for debenture holder Class, Philips & Mushkin, P. C., New York City, Counsel for class plaintiff Polne, Rabin & Silverman, New York City, Counsel for class plaintiff Pupko, of counsel on the brief), for class plaintiffs and cross-appellants.
Sheldon Elsen, New York City (Orans, Elsen, Polstein & Naftalis, Leslie A. Lup-pert, Paul E. Summit, New York City, of counsel), for defendant-appellant.
Before LUMBARD, MOORE and VAN GRAAFEILAND, Circuit Judges.
LEONARD P. MOORE, Circuit Judge:
This appeal arises from seven separate actions brought against defendant-appellant, Fairleigh S. Dickinson, Jr., and eleven other defendants, for alleged violations of the federal securities laws, New Jersey state law, and the rules of the New York Stock Exchange. These seven actions include an enforcement action brought by the Securities and Exchange Commission (“SEC”), a private action filed by Becton, Dickinson & Company (“Becton”) and certain of its officers, and five class actions brought on behalf of certain Becton shareholders. All seven actions stem from the acquisition by Sun Company, Inc. of approximately 34% of the outstanding stock of Becton, a New Jersey corporation engaged in the manufacture of health care products and medical testing and research equipment. The actions were consolidated for a bench trial before the Honorable Robert L. Carter, District Judge of the Southern District of New York. By agreement of the parties, the consolidated trial was bifurcated on the issues of liability and damages.
On the issue of liability, Judge Carter held, inter alia, that Dickinson, in an effort to induce a third-party takeover or partial takeover of Becton, had violated Section 13(d) of the Securities Exchange Act of 1934, 15 U.S.C. § 78m(d) (1976), when he joined a group to sell more than 5% of the company’s common stock without making the requisite filings with the SEC, Becton, and the exchange on which the securities were traded. Wellman v. Dickinson, 475 F.Supp. 783, 837 (S.D.N.Y.1979). Before the trial on damages commenced, the SEC withdrew its request for relief from Dickinson other than a judicial declaration that Dickinson had violated Section 13(d). Accordingly, by order entered on February 19, 1980, Judge Carter adhered to the court’s findings concerning Dickinson’s liability and, with the SEC’s consent, terminated with prejudice its enforcement action against Dickinson.
On July 31, 1980, Judge Carter issued a final opinion addressing, inter alia, the class plaintiffs’ claims for damages or disgorgement of profits against Dickinson and other members of the group found to have violated Section 13(d). Wellman v. Dickinson, 497 F.Supp. 824, 834-36 (S.D.N.Y.1980). Judge Carter held that these plaintiffs had no right to monetary relief against Dickinson for a number of reasons, including their failure to demonstrate that the Section 13(d) violations directly caused any injury to the class. Thus, the district court entered a final judgment on September 29, 1980, denying the class plaintiffs’ claims for disgorgement and other monetary relief against Dickinson for his violation of Section 13(d).
Dickinson appeals from this final judgment and all prior orders in this case finding that he violated Section 13(d) of the Securities Exchange Act of 1934. Dickinson contends that plaintiffs have failed to prove either that the purported members of the Section 13(d) group had beneficial ownership of sufficient Becton stock to form a group with him, or that he had entered an agreement with anyone to dispose of Bec-ton stock either directly or indirectly through agents. The class plaintiffs cross-appeal from those portions of the September 29, 1980 judgment denying their claims for disgorgement and other monetary relief against Dickinson and from the dismissal of their claims for breach of fiduciary duty against Dickinson. On appeal, the class plaintiffs renew their argument that Dickinson breached his fiduciary duty to the shareholders of Becton, and that he must disgorge a portion of the profits he obtained as a result of his actions in violation of Section 13(d) and in breach of his fiduciary duty.
We reject the claims raised by both parties, and hold that Judge Carter did not err in finding that Dickinson violated Section 13(d) of the Securities Exchange Act of 1934 and in denying the claims of the class plaintiffs for damages or disgorgement from Dickinson. For the reasons set forth below, we affirm the district court’s judgment and orders in all respects.
“The prior findings and order of this Court shall remain in effect as to Dickinson and [the SEC’s enforcement action] as to Dickinson is otherwise terminated with prejudice.”
FACTS
Since the facts underlying this appeal are described in detail in the two opinions of the district court, Wellman v. Dickinson, 497 F.Supp. 824 (S.D.N.Y.1980); Wellman v. Dickinson, 475 F.Supp. 783 (S.D.N.Y.1979), we shall only summarize them briefly-
As Judge Carter observed: “The background and governing facts in this complex drama embrace personality conflicts, animosity, distrust, and corporate politics, as well as a display of ingenuity and sophistication by brokers, investment bankers and corporate counsel”. Wellman v. Dickinson, supra, 475 F.Supp. at 797-98.
One of the principal personalities was Fairleigh S. Dickinson, Jr., the son of a founder of Becton and a major stockholder of the company. He individually held 802,-138 shares of Becton stock (4.2% of the outstanding shares). In addition, Dickinson held 140,794 shares (.64%) as a co-trustee and at least 198,922 shares (1%) as a member of the Dickinson family.
Dickinson personally managed Becton for over twenty-five years. In 1974, Dickinson relinquished his management responsibilities and became Chairman of the Board. In late 1976, however, differences between the new management and Dickinson emerged. On April 20, 1977, after a bitter internal power struggle over the course of several months, the new management team prevailed, and the board of directors voted to remove Dickinson as its chairman.
The day following his removal as chairman, Dickinson met with representatives of Salomon Brothers (“Salomon”), a New York limited partnership engaged in the investment banking and brokerage business, to obtain advice on how to regain control of Becton. In attendance were Jerome Lipper, who was Dickinson’s attorney, Kenneth Lipper, brother of Jerome Lipper and a partner of Salomon, Richard Rosen-thal and John Gutfreund of Salomon, Martin Lipton, who was Salomon’s attorney, and two directors of Becton who were sympathetic to Dickinson. These men discussed several possible strategies. Dickinson ultimately agreed to a plan to vote with outside directors as a means of bringing pressure on Becton’s management and selling a block of the company’s shares, including his own, to a corporation interested in taking over Becton. Dickinson hired Salomon to assist him in locating a corporation that would be interested in purchasing his substantial holdings in Becton and those of his friends as the springboard for a complete or partial takeover of the company. Dickinson’s friends included Dr. J. H. Fitzgerald Dunning, a director of Becton, who personally owned 3,200 shares and served as one of two co-trustees for one of three family trusts which held 344,849 shares (1.8%). Each of his two brothers served as a co-trustee for one of the other two trusts, and Dunning’s personal lawyer served as the other trustee for all three trusts.
Shortly thereafter, Salomon was also contacted by Dan W. Lufkin who was concerned about his investment in Becton stock in light of Dickinson’s removal from the company’s chairmanship. Lufkin was a member of a partnership together with Edward L. Scarff which owned 93,000 shares of Becton stock. The partnership and three other individuals, Richard Drake, Charles Willock, and Robert Smith, were the principals of a kidney dialysis company acquired by Becton in 1977. As a result of that transaction, the partnership received 93,000 shares of Becton stock, Willock received 46,248 shares, and the two other men each received 140,148 shares (total 2.2%). After the acquisition of the dialysis company, Drake, Willock, and Smith continued to rely heavily on Lufkin’s partnership for investment advice.
Dickinson subsequently contacted Robert Zeller, chief executive officer of F. Eber-stadt & Company, Inc. (“Eberstadt”), a Delaware corporation engaged in investment banking, institutional stock brokerage, and the management of pension funds and advisory accounts. Eberstadt had acted for many years as Becton’s investment banker. Zeller had also advised Dickinson on the handling of some of his personal affairs. Moreover, an Eberstadt subsidiary, F. Eber-stadt & Company Managers & Distributors Inc. (“Eberstadt M & D”), served as investment advisor to two mutual funds (the “Funds”), the Chemical Fund and the Surveyor Fund, which along with a number of Eberstadt-managed discretionary brokerage accounts held 496,075 shares of Becton stock (2.6%). Dickinson informed Zeller that he was asking Salomon to involve Eberstadt in the effort to encourage a corporation to undertake a complete or partial takeover of Becton. Initially, Dickinson and Salomon and Zeller entered into merely an oral understanding. However, after Becton’s counsel threatened to sue if Dickinson continued to seek a buyer for a large percentage of Becton stock, Martin Lipton, Salo-mon’s attorney, advised Salomon to obtain written indemnification from Dickinson. By letter dated October 12, 1977, Dickinson confirmed his engagement of Salomon and agreed to indemnify the firm against all claims arising out of its representation of Dickinson in securing a buyer for his stock.
Beginning in the spring of 1977, Salomon and Eberstadt worked earnestly to interest a major corporation in acquiring a minority interest or in effecting a complete takeover of Becton. During the next eight months, Salomon and Eberstadt arranged meetings with several major corporations, including Avon, American Home Products Corp., and Squibb Corp., in an effort to induce these companies to acquire shares in Becton. Dickinson himself participated in these activities until late December, when he was hospitalized for approximately one month.
The presentations by Salomon and Eber-stadt to the corporations potentially interested in purchasing Becton stock were virtually identical. A representative from one of the two brokerage houses would inform the corporation that Salomon and Eberstadt were representing Dickinson. They would then describe Dickinson’s animosity toward Becton’s management and his desire to dispose of his stock in the company. They would also disclose that other stockholders shared Dickinson’s ill feelings and were interested in selling their shares. In each case, the corporation was advised that Dickinson’s stock and a block of stock that the brokerage houses represented were available if the corporation was interested in a takeover of Becton. This block of shares included those beneficially owned by the Eberstadt-managed funds and by Dickinson’s friends, Dunning and Lufkin. The representative would then outline a takeover plan, placing special emphasis on the number and availability of the shares controlled by Dickinson, the Funds, Dunning, and Lufkin’s partnership. They asserted that Dickinson and his family held approximately 1,200,000 shares and that the remaining three members of the group held approximately 1,300,000 shares. Although a portion of these shares were held in trust, the representative assured the potential purchaser that the approximately 2,500,000 shares (13%) were readily available. Moreover, the corporation was usually told that the group’s shares of Becton stock would provide a sufficient base from which to launch a more extensive acquisition program for additional shares and a complete takeover of the company.
The labors of the two brokerage houses eventually bore fruit when Sun Company, Inc. (“Sun”), a Pennsylvania corporation whose principal business involves oil and gas, entered the picture. On November 28, 1977, Kenneth Lipper of Salomon approached Horace Kephart, a senior vice president of Sun in charge of the company’s corporate development and diversification program, and suggested that Sun might want to consider Becton as a possible acquisition. Lipper informed Kephart that 15% of Becton’s stock was available and that this initial block included 1,200,000 shares owned by Dickinson, 300-400,000 shares owned by Dunning, 400,000 shares owned by Lufkin, and 500,000 shares owned by the Chemical Fund, one of the Eberstadt-man-aged mutual funds. Lipper also advised Kephart that Sun would be able to acquire quickly an additional 10-20% of Becton stock. Kephart was aware of the rift between Dickinson and Becton’s management and learned of Becton’s public announcement in June of its desire to remain independent.
At a meeting of Sun’s senior executives held in early December, Kephart mentioned Becton as a possible acquisition opportunity. A study of Becton and the health care industry in general was undertaken to determine the desirability of an investment in the company. After reviewing the results of this in-house study, Sun’s senior executives decided that the possibility of acquiring Becton should be explored more fully. Accordingly, a number of meetings were held between Dickinson’s and Sun’s representatives in late December 1977 and early January 1978 to discuss alternative strategies for acquiring Becton. Kephart was given a list of available holdings, including those of Dickinson, Dunning, and Lufkin. Kephart was already aware that a large percentage of Becton’s shares was held by institutions, and he was assured that the 500,000 shares of Becton stock held by the Funds and the Eberstadt-managed discretionary accounts were readily available to Sun. Four possible strategies were considered: (1) to seek shares sequentially, first from individuals, then from institutions; (2) to seek shares simultaneously from these two groups; (3) to tender immediately; and (4) to contact management directly. The consensus was that simultaneous purchases from large individual and institutional shareholders, undertaken with as much secrecy as possible, would be the best strategy. Sun would purchase the block held by Dickinson, Dunning, Lufkin and the Funds, and then would conduct a limited solicitation of Becton’s institutional holders to reach its target of acquiring 34% of the outstanding shares. This strategy would enable the acquisition to be carried out quickly and would permit Sun to acquire physical possession of the shares in the shortest possible time.
Presentations made to Sun’s board of directors on January 5 indicated that a 15% block of the Becton’s shares held by four non-management persons were available and additional shares representing 10-20% of the outstanding stock could be readily acquired. Sun executives understood that the block of shares in question belonged to Dickinson, the Funds, Dunning, and Lufkin. On January 11, recommendations concerning an acquisition strategy were presented to Sun’s senior officials.
On January 13, Sun’s Executive Committee approved the strategy of limited solicitation of large individual and institutional shareholders and authorized the purchase of approximately 34% of Becton’s outstanding shares, provided that the total expenditure not exceed $350 million. The transaction was contingent, however, upon Sun’s obtaining at least 25% (subsequently lowered to 20%) of the outstanding shares of Becton stock. Sun further agreed to a $700,000 fee to be divided equally between Eberstadt and Salomon, plus indemnification for all their out-of-pocket expenses, including attorneys’ fees, due and payable upon the acquisition of 20% of the shares.
The offer proposed a two tier price structure — a higher price of $45 per share with no recourse and a lower figure of $40 per share with a right to receive the highest price paid to any subsequent solicitee.
To complete the first step in effecting the acquisition, on January 14,1978, Lipper and Zeller went to Dickinson’s hospital room and formally presented Sun’s proposal to him. Lipper’s brother, Jerome Lipper, was also present. Dickinson was told that the matter must be kept confidential and that Sun was the purchaser. After the price options were outlined, Dickinson indicated that he was ready to accept the $45 price but only on the condition that the proposal would be presented to Dunning as well. After guaranteeing Dunning’s discretion, Dickinson called Dunning in Baltimore and informed him that Salomon and Eberstadt had presented him with an attractive proposal for the sale of his Becton stock and that he was conditioning his acceptance on the extension of the same offer to Dunning. Dickinson arranged for Dunning to meet with Zeller and Lipper in Baltimore on the following day. Kenneth Lipper then made the same offer given to Dickinson to Dickinson’s daughter, Ann Dickinson Turner, who was visiting her father in the hospital. At the request of Jerome Lipper, Turner-subsequently delivered her shares and those sold by her father to Sun in New York.
On January 15, Kenneth Lipper and Zel-ler met with Dunning in Baltimore and extended to him the same offer that they presented to Dickinson. Dunning responded favorably to the proposal and promised to advise them after he conferred with his two brothers and their co-trustee. Sun later purchased about 110,000 shares from each of the three Dunning trusts, for a total of 329,849 shares (1.7%).
On January 16, Kenneth Lipper and another representative of Salomon, met with Lufkin and made him the same offer extended to both Dickinson and Dunning. Although the identity of the purchaser was not disclosed, he was told that Dickinson favored the transaction and that the purchaser was an appropriate company. Luf-kin soon learned, however, that Sun was the purchaser. Lufkin indicated that he preferred the $45 price and was confident that he could commit the 93,000 shares of Becton stock that he and his partner, Edward L. Scarff, received after Becton acquired the partnership’s interest in a kidney dialysis company. Moreover, Lufkin stated that while he “could not speak for” Richard Drake, Charles Willock, and Robert Smith, the other three principals of the dialysis company who received Becton stock as a result of the takeover, he expected that they would tender their shares. Lufkin immediately telephoned Scarff, who promptly agreed that the partnership shares should be sold at the $45 price. In addition, Scarff promised to contact Richard Drake, Charles Willock, and Robert Smith, and inform them that they had the opportunity to sell their Becton stock at $45 per share to Sun. On January 17, Scarff collected the shares of the three other individuals, receiving their signatures on purchase agreement contracts and on their voting proxies. Scarff then flew to New York to deliver these shares, those of the partnership, and the executed contracts to Sun.
Eberstadt M & D was also offered the same proposal extended to Dickinson, Dunning, and Lufkin. On January 16, a representative of Eberstadt M & D recommended the $45 price to the director of the Funds and of the Eberstadt-managed discretionary accounts. Both groups of directors accepted this offer.
With the favorable response from Dickinson, Dunning, Lufkin, and the Funds, the time was ripe for Sun to commence the second stage of its plan for acquiring 34% of the outstanding stock of Becton. At 4:00 P.M. on January 16, the Sun solicitation team met in the trading room at Salomon’s New York offices and began telephone solicitations of additional tenders from institutional investors holding large blocks of Becton stock. The team worked in pairs of one caller and one lawyer, who monitored the caller’s side of the conversation. The caller solicited offers to sell Becton stock to an anonymous purchaser from at least 20 individuals representing 30 institutions, offering the same two-tier price structure as was extended to Dickinson, Dunning, Luf-kin, and Eberstadt M & D. Each solicitee was told that a non-disclosed purchaser was looking for 20% of Becton’s stock; that no transaction would be final unless 20% of the shares were acquired; that the $40 option could be accepted without fear of losing the opportunity to obtain a higher price in the event shares were later bought at a higher figure; and that the purchases necessary to reach the desired 20% goal were rapidly being made and that a hurried response was therefore essential. Each solicitee was asked to respond within one hour or less, although some were allowed to wait until the next day. Sun was identified as the purchaser to a few institutions, but in most cases, the purchaser’s specific identity was not revealed.
By 5:35 P.M., Kephart of Sun was advised that verbal commitments reached 20%, and Kephart was given authorization to seal the bargain with the institutions that had agreed to tender their shares. The closing price on the New York Stock Exchange for Becton shares on January 16 was $32% per share. Thus, Sun paid a premium of $12% per share over market price to those stockholders which accepted the $45 option. Before the end of the evening, Sun officials had realized their objective of obtaining at least 34% of Becton’s outstanding shares. On January 17 and 18, couriers were dispatched throughout the country to pay for the stock, to obtain signatures or collect prepared purchase agreements, to take physical possession of the stock certificates, and to have solicitees sign powers of attorney to allow Sun to vote their proxies.
On January 17, Salomon representatives contacted officials of the New York Stock Exchange and convinced them to halt trading in Becton stock on the ground that an unidentified client would be filing a statement pursuant to Section 13(d) filing two days later, on January 19. Dickinson and Turner, his daughter, also filed separate Section 13(d) statements on January 19. On January 24, the day after the trading ban on Becton stock was finally lifted, the Dunning trusts filed Schedule 13(d) statements.
Sun’s lightning strike triggered litigation starting on January 23, 1978. In his first opinion, Judge Carter ruled that Sun had made a tender offer without the requisite filings in violation of Section 14(d), 15 U.S.C. § 78n(d) (1976). Sun agreed to divest itself of its stake in Becton by issuing debentures of 10-25 years maturity which will be exchanged or redeemed for Sun’s Becton shares. This agreement, along with the settlement of various class action claims, was approved by Judge Carter on July 31,1980, and upheld by this court in an unpublished order, Wellman v. Dickinson, 647 F.2d 163 (2d Cir. 1981). Sun’s liability under Section 14(d) is not at issue in this appeal.
DISCUSSION
Section 13(d) of the Securities Exchange Act of 1934 requires a group that has acquired, directly or indirectly, beneficial ownership of more than 5% of a class of a registered equity security, to file a statement with the SEC, disclosing, inter alia, the identity of its members and the purpose of its acquisition. The central question on appeal is whether the district court erred in finding that Dickinson joined a group holding beneficial ownership of approximately 13% of the outstanding shares of Becton, and in finding that the members of this group agreed to dispose of the Becton stock under their control but failed to disclose this fact pursuant to Section 13(d). A group, under Section 13(d)(3), 15 U.S.C. § 78m(d)(3) (1976), is defined as an aggregation of persons or entities who “act .. . for the purpose of acquiring, holding or disposing of securities.. . . ” The statute contains no requirement, however, that the members be committed to acquisition, holding, or disposition on any specific set of terms. Instead, the touchstone of a group within the meaning of Section 13(d) is that the members combined in furtherance of a common objective. Bath Industries, Inc. v. Blot, 427 F.2d 97, 111 (7th Cir. 1970). See also Corenco Corp. v. Schiavone & Sons, Inc., 488 F.2d 207, 217 (2d Cir. 1973); Texasgulf Inc., v. Canada Development Corp., 366 F.Supp. 374, 403 (S.D.Tex.1973). Of course, the concerted action of the group’s members need not be expressly memorialized in writing. Securities and Exchange Commission v. Savoy Indus., Inc., 587 F.2d 1149, 1163 (D.C.Cir.1978), cert. denied, 440 U.S. 913, 99 S.Ct. 1227, 59 L.Ed.2d 462 (1979).
Dickinson contends that plaintiffs have not demonstrated that he entered into a formal or informal agreement with any other person to dispose of his Becton stock, or that the purported members of the Section 13(d) group had beneficial ownership of sufficient Becton stock to form a Section 13(d) group with him.
In evaluating Dickinson’s contentions, we must sift through the record to determine whether there is sufficient direct or circumstantial evidence to support the inference of a formal or informal understanding between Dickinson and others holding beneficial ownership of more than 5% of Becton stock for the purpose of disposing of the shares under their control. See id. The evidence in this ease supports the district court’s determination that as part of an effort to effectuate a shift in the corporate control of Becton, Dickinson and others holding beneficial ownership of approximately 13% of the company’s outstanding stock, reached an understanding to act in concert in disposing of their shares, but failed to disclose this fact as required by Section 13(d).
Ample evidence supports the district court’s finding that Dickinson, Eberstadt, Eberstadt M & D, Lufkin, and Dunning “were all part of a group formed to dispose of their shares to aid a third party acquisition of a controlling interest in [Becton].” Wellman v. Dickinson, supra, 475 F.Supp. at 830. In reaching its conclusion that an express or implied understanding existed between the group members, the district court relied to a great extent on the representations made by Dickinson and his representatives from Salomon and Eberstadt to potential purchasers concerning the availability of the shares controlled by Dickinson, Dunning, Lufkin, Eberstadt, and Eberstadt M & D.
One vivid example of testimony concerning the assurances made by Dickinson’s representatives to potential purchasers is that of William LaPorte, chairman of the board of directors of American Home Products Corporation, one of the companies approached with the Becton takeover proposal. LaPorte testified at trial that Kenneth Lipper of Salomon called to inform him that Dickinson was seeking a company interested in merging with Becton and that 16-17% of the outstanding shares were readily available for sale. Specifically, Lip-per indicated, according to LaPorte, that Eberstadt controlled 500,000 shares of Bec-ton and that the shares controlled by Dickinson and Dunning were available and would “go with [the] deal”.
John Whitehead, an investment banker for Monsanto Company, another corporation offered the Becton takeover proposal, also testified that Dickinson and his representatives provided assurances concerning the availability of outstanding shares of Becton. Whitehead testified at trial that he was asked “whether Monsanto was interested in buying around 3,000,000 shares [of Becton]” and that the 3,000,000 figure was composed in part of 1,200,000 shares controlled by Dickinson and his family and 1,300,000 shares controlled by Dickinson’s friends and associates. Moreover, Whitehead testified that Dunning was named as a principal owner of the latter group of shares.
Dickinson contends that the representations made by him and his representatives to potential purchasers are not probative of an understanding among the group members because the statements were simply “predictions” as to which Becton shareholders would sell. We reject Dickinson’s claim and conclude that, in light of all the facts, the district court could reasonably infer from the evidence that assurances, not mere predictions, were made by the group. See Securities and Exchange Commission v. Parklane Hosiery Co., Inc., 558 F.2d 1083, 1086 (2d Cir. 1977).
Additional direct and circumstantial evidence supports the district court’s finding of an agreement between Dickinson, Eberstadt, Eberstadt M & D, Dunning, and Lufkin. The record clearly demonstrates that Dickinson aggregated his family’s holdings of 1,200,000-1,300,000 shares of Becton stock and contacted Eberstadt and Salomon for the purpose of finding a corporation acceptable to him that would be interested in buying his substantial Becton holdings.Dickinson solicited Eberstadt to assist in his search for a buyer, aware that the Eberstadt-controlled discretionary accounts held 52,175 of Becton stock (.27%) and that the Funds managed by Eberstadt M & D held 443,200 shares (2.33%).
It is conclusively established that Eber-stadt agreed to join Dickinson’s effort to interest a corporate purchaser in a takeover or partial takeover of Becton. Executives of Eberstadt were apprised that the brokerage house’s fee of $350,000 was contingent on its successful delivery of 20% of the Becton stock to Sun. In an effort to reach this goal, representations concerning the number of group shares attributable to Eberstadt and Eberstadt M & D repeatedly included the discretionary account shares. Moreover, actions taken in connection with Sun negotiations indicate that prior to the receipt of Sun’s offer, a determination had already been made to sell the shares held by the discretionary accounts as part of the total shares of the group.
With respect to Eberstadt M & D, substantial evidence supports the district court’s finding that it also committed itself to the endeavor of effectuating a shift in the corporate control of Becton. Robert Zeller served as both chief executive officer of Eberstadt and vice-chairman of Eberstadt M & D. Moreover, Eberstadt owned 75% of Eberstadt M & D. Dickinson contends that this finding is erroneous because the court refused to credit the testimony of executives of Sun who stated that Zeller of Eberstadt had disclaimed authority to direct the disposition of shares held by the Funds and that the executives had believed these disclaimers. The court properly discredited this testimony in light of the fact that the notes of these executives taken during their meetings with Dickinson’s representatives reflect the executives’ understanding that the Funds’ shares managed by Eberstadt M & D were available for purchase. Moreover, the individuals who met with Zeller and Lipper, despite Zeller’s silence or disclaimer, departed from the meeting convinced that the shares held by the Funds were available with those of Dickinson, Dunning, and Lufkin. “Indeed, Lipper would tell the prospective acquisition clients that Chemical Fund was the bellweather of the institutions holding large blocks of [Becton] stock and that it would sell for the right price, implying that the others would follow suit. Zeller would agree to this statement.” Wellman v. Dickinson, supra, 475 F.Supp. at 828.
The evidence also supports the inference drawn by the district court that from the beginning, Dunning was a member of the undisclosed group formed to dispose of its shares of Becton. Dickinson kept Dunning abreast of any progress made in the search for a corporation interested in taking over Becton. Moreover, Dunning’s name was mentioned as one of the prospective sellers of Becton stock to nearly every company solicited by Dickinson’s representatives. In addition, when Lipper and Zeller formally presented Sun’s offer to Dickinson in his hospital room on January 14, Dickinson said that he would be interested only if the same offer were extended to Dunning. Dickinson contacted Dunning from his hospital room and arranged for Zeller and Lipper to meet with Dunning on the following day.
Finally, the evidence as to Lufkin’s participation with Dickinson supports the conclusion that Lufkin was a full participant in the search for a purchaser to take over Becton. On November 10,1977, Lufkin met with Dickinson, Kenneth Lipper of Salo-mon, and Jerome Lipper. Lufkin, according to Dickinson, informed them that “he represented a stock holding in [Becton] that grew out of the acquisition by [Becton] of a company on the West Coast”, and that he was concerned over the recent internal difficulties at Becton. Lufkin stated that he was “very much in [Dickinson’s] corner”. Thereafter, Dickinson’s representatives always included the approximately 400,000 shares held by the Lufkin partnership and Drake, Willock, and Smith among those who could be counted on as willing sellers. In addition, like Dickinson, his daughter, Dunning, and Eberstadt, the Lufkin partnership and the three other individuals received their offers prior to the extension of formal offers to other solicitees, and Lufkin appears to have been told the identity of the purchaser.
Dickinson, Dunning, Eberstadt, Eberstadt M & D, and Lufkin were linked by a desire to profit from a shift in the corporate control of Becton. The evidence clearly supports the district court’s finding that in an effort to achieve their common objective, Dickinson, Eberstadt, Dunning, Eberstadt M & D and Lufkin formed a group to dispose of the Becton shares under their control.
Dickinson also contends that the district court erred in finding that Eberstadt, Eber-stadt M & D, Dunning and Lufkin held beneficial ownership of sufficient Becton stock to form a
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_dissent
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0
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What follows is an opinion from a United States Court of Appeals.
Your task is to determine the number of judges who dissented from the majority (either with or without opinion). Judges who dissented in part and concurred in part are counted as dissenting.
UNITED STATES of America, Appellee, v. Victor SANTARPIO, a/k/a "Lefty”, Defendant, Appellant.
No. 76-1178.
United States Court of Appeals, First Circuit.
Argued Dec. 7, 1976.
Decided June 30, 1977.
Marting G. Weinberg, Joseph J. Balliro and Gerald Alch, Boston, Mass., with whom William J. Cintolo, Oteri & Weinberg, Joan C. Schmidt, Boston, Mass., Jeanne Baker, David J. Fine and Rosenberg, Baker & Fine, Cambridge, Mass., were on brief, for appellants in Nos. 76-1179, 76-1181, 76-1183 and 76-1201.
John J. Sylvester, Boston, Mass., by appointment of the court, for appellant in No. 76-1182.
Alan R. Hoffman, Boston, Mass., by appointment of the court, with whom Kaplan, Latti & Flannery, Boston, Mass., was on brief, for appellant in No. 76-1178.
Francis J. O’Rourke, Boston, Mass., by appointment of the court, and Maloney, Williams & Baer, Boston, Mass., for appellant in No. 76-1200.
William J. Carr, Boston, Mass., appearing for appellant in No. 76-1199.
Eugene X. Giroux, Boston, Mass., appearing for appellant in No. 76-1198.
Robert Y. Murray, Boston, Mass., by appointment of the court, and Moulton & Looney, Boston, Mass., appearing for appellant in No. 76-1180.
Frederick Eisenbud, Atty., Dept, of Justice, Washington, D. C., with whom James N. Gabriel, U. S. Atty., Boston, Mass., and William G. Otis, Atty., Dept, of Justice, Washington, D. C., were on brief, for appel-lee.
Before COFFIN, Chief Judge, ALDRICH and CAMPBELL, Circuit Judges.
Consolidated with the following Defendants-Appellants; Joseph S. Mastrullo, 76-1179; Thomas Hurley, 76-1180; Charles Palazzolo, 76-1181; Philip Cali, 76-1182; Andrew Schepi-ci, 76-1183; Richard Smith, 76-1198; Harry F. Hamperian, 76-1199; Albert F. Bruun, 76-1200; and John Bradanese, 76-1201.
LEVIN H. CAMPBELL, Circuit Judge.
The ten appellants were named in four indictments which charged them, and others, with operating an illegal gambling business and with conspiracy to commit that offense in violation of 18 U.S.C. §§ 1955 and 2. Following a jury-waived trial, all were convicted on one count of conducting an illegal gambling business.
The Government’s primary evidence consisted of stipulations of fact including transcripts of court authorized wire interceptions of telephone conversations conducted between December 19,1974 and February 3, 1975. An FBI bookmaking expert through stipulation and testimony explained how a bookmaking business works and gave his opinion based on the other evidence that each of the defendants was part of one gambling enterprise. The Government also introduced gambling paraphernalia seized in warrant-authorized searches of several locations used in defendants’ bookmaking operations. Seen in the light most favorable to the Government, this evidence revealed a gambling business unified by the exchange of line and other gambling information and layoff bets between bookmakers. Briefly the stipulated facts were as follows.
Thomas Hurley owned a bookmaking business the central office of which was managed by Victor Santarpio assisted by an office worker, Albert Bruun. Santarpio received and accepted layoff wagers on sports from Andrew Schepici, Joseph Mastrullo, Philip Cali, Richard Smith and Harry Hamperian. He also received and accepted layoff wagers on horses from Schepici. Santarpio exchanged line information on sporting events with Schepici and Mastrullo and received from Schepici line information which had been received from Charles Pa-lazzolo. John Brandanese was an office worker for Mastrullo.
Appellants, either in combination or individually, make numerous assignments of error. They challenge the indictments, the legality of the wiretaps, the sufficiency of the evidence, and, in one case, a condition of probation that was imposed! Because all challenge the legality of the three wiretap orders, we address that question first.
I
The wiretap orders were issued on December 4, 1974, December 19, 1974 and January 17, 1975, each on the basis of an application by Special Attorney Jeremiah T. O’Sullivan and an affidavit submitted by FBI Agent Thomas J. Daly. The telephone company was unable to effect the first taps and no evidence was obtained from the December 4 order. The information gained from the two other wiretaps led to search warrants and the seizure of bookmaking paraphernalia. The district court denied appellants’ motions to suppress the intercepted communications and derivative evidence.
Appellants assert that the applications were defective because they failed to demonstrate the inadequacy of normal investigative procedures, 18 U.S.C. § 2518(l)(c), and failed to establish probable cause that five or more persons were involved in an illegal gambling business, 18 U.S.C. § 2518(3)(a). Appellants further argue that the identity of three anonymous informants should have been revealed to the defendants or, alternatively, to the court in camera.
In United States v. Scibelli, 549 F.2d 222, 226 (1st Cir. 1977), cert. denied 431 U.S. 960, 97 S.Ct. 2687, 53 L.Ed.2d 278 (1977), we said that our role on review was “not to make a de novo determination of sufficiency . . . but to decide if the facts set forth in the application were minimally adequate to support the determination made.” We further observed that section 2518(l)(c) was not designed to force the Government to exhaust all other investigative procedures before resorting to wiretapping but rather serves “ ‘to assure that wiretapping is not resorted to in situations where traditional investigative techniques would suffice to expose the crime’.” Id., quoting United States v. Kahn, 415 U.S. 143, 153 n.12, 94 S.Ct. 977, 983, 39 L.Ed.2d 225 (1974). We have reviewed the applications and affidavits which led to the wiretaps in this case and, reading them in “a practical and commonsense manner”, United States v. Scibelli, supra, 549 F.2d at 226, we cannot say that the district court erred in finding them to comply with the requirement of “a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous”, 18 U.S.C. § 2518(l)(c). The applications show that they were preceded by a three month investigation which included surveillance and the gathering of information from informants. None of the informants was willing to testify for the Government. Agent Daly explained that although a pattern of conduct which reasonably suggested an illegal gambling business had been established, this would not be sufficient to convict under 18 U.S.C. § 1955. In deciding if other techniques were or were not promising, the court was entitled to take account of the fact that the alleged crime was essentially a telephone crime. See United States v. Scibelli, supra, 549 F.2d at 227; United States v. Steinberg, 525 F.2d 1126, 1130 (2d Cir. 1975), cert. denied, 425 U.S. 971, 96 S.Ct. 2167, 48 L.Ed.2d 794 (1976); In re Dunn, 507 F.2d 195, 197 (1st Cir. 1974).
Appellants laboriously analyze the contents of the first affidavit suspect by suspect and conclude that there was insufficient probable cause established with respect to four of the seven named suspects. Because the federal crime of conducting a gambling business requires that five or more individuals be involved, this insufficiency is said to be fatal to the affidavit. The second application is similarly dissected and is additionally attacked as insufficient because, it is argued, the requirements of 18 U.S.C." § 2518(l)(e) should have been, but were not met, and the demonstration of probable cause was not fresh. No direct attack is made on the third application which was largely based on evidence derived from implementation of the second wiretap order. It is argued, however, that if the second application violated the statute, information therefrom must be suppressed, including the derivative evidence resulting from the third tap.
The short answer to much of the foregoing is that it calls for reading the affidavits in a hypertechnical manner. They should not be so read. See United States v. Ventresca, 380 U.S. 102, 108-09, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965). A commonsense interpretation reveals that there was probable cause as to each of the persons named in each of the wiretap applications. Indeed, one reaches the same conclusion even if the affidavits are read in the refined manner urged. We find, moreover, no fatal absence of reliability in the statements made by gamblers to the informants. These admissions against penal interest by confessed bookmakers concerning gambling operations of which they were a part were certainly entitled to weight. See United States v. Harris, 403 U.S. 573, 583-84, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971) (plurality opinion); United States v. Bowser, 532 F.2d 1318, 1321 (9th Cir. 1976); United States v. Carmichael, 489 F.2d 983, 986-87 (7th Cir. 1973) (en banc); Fed.R.Evid. 804(b)(3). Reasonably viewed, we find none of the statements to be “hopelessly vague”, as alleged, nor insufficiently fresh. We reject the contention that collecting debts from delinquent accounts and settling with bettors does not show one to be an integral part of the conducting of business within section 1955. See, e. g., United States v. Sacco, 491 F.2d 995,1002-03 (9th Cir. 1974); United States v. Smaldone, 485 F.2d 1333, 1351 (10th Cir. 1973), cert. denied, 416 U.S. 936, 94 S.Ct. 1934, 40 L.Ed.2d 286 (1974). Finally, the second application was not an extension of the first but a new request covering phones different from those sought to be tapped pursuant to the first order. As such it complied with the requirements of 18 U.S.C. § 2518(l)(e). See United States v. Florea, 541 F.2d 568, 576 (6th Cir. 1976), cert. denied, 430 U.S. 935, 97 S.Ct. 1579, 51 L.Ed.2d 792 (1977).
The district court had no reason to require that the informants be identified. There was probable cause to issue the wiretap orders and there were no material misrepresentations in the affidavits; moreover, the district court heard the testimony of Agent Daly at the hearing on the motions to suppress and apparently was satisfied that the information received from the informers was reliable and the informants credible. See McCray v. Illinois, 386 U.S. 300, 304, 87 S.Ct. 1056,18 L.Ed.2d 62 (1967), quoting Aguilar v. Texas, 378 U.S. 108,114, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). Not only was there no requirement that the informants’ identities be revealed to appellants, see McCray v. Illinois, supra, 386 U.S. at 311-12 & n.11, 87 S.Ct. 1056, but the court had no reason based either on Agent Daly’s testimony or on the affidavits themselves to question the reliability of the informants. In camera identification was thus not required and the cases cited by appellants, United States v. Freund, 525 F.2d 873 (5th Cir. 1976); United States v. Anderson, 509 F.2d 724 (9th Cir. 1974), cert. denied, 420 U.S. 910, 95 S.Ct. 831, 42 L.Ed.2d 840 (1975); United States v. Hurse, 453 F.2d 128 (8th Cir. 1972), cert. denied, 414 U.S. 908, 94 S.Ct. 245, 38 L.Ed.2d 146 (1973), are simply inapposite.
Appellants’ remaining arguments that the wiretap evidence should have been suppressed are similarly without merit.
II
Palazzolo, Cali and Hamperian argue that the Government’s evidence was insufficient to establish that each of them conducted an illegal gambling business in violation of 18 U.S.C. § 1955.
In reviewing these assertions, we consider evidence in a light most favorable to the Government, United States v. Doran, 483 F.2d 369, 372 (1st Cir. 1973), cert. denied, 416 U.S. 906, 94 S.Ct. 1612, 40 L.Ed.2d 111 (1974).
We start with Palazzolo. Intercepted during the third wiretap, he contends that his laying off of bets with Schepici was not enough to establish that he was a participant in the larger Santarpio operation. He argues that the evidence shows that Palazzolo disseminated line information to Schepici only twice, and that the amount of business Schepici laid off to Palazzolo was “miniscule”. In fact, Palazzolo furnished to, and accepted from, Schepici layoff wagers on numbers and horses, and, on at least one occasion, Schepici then laid off to Santarpio bets he had received from Palazzolo. Palazzolo discussed with Schepici settlement of his account and, on a number of occasions, furnished line information on sports to Schepici who, on one occasion, in turn furnished the line to Santarpio. It was not necessary to show that Palazzolo knew that he was aiding Santarpio and others besides Schepici. See United States v. DiMuro, 540 F.2d 503, 508 n.5 (1st Cir. 1976), cert. denied, 429 U.S. 1038, 97 S.Ct. 733, 50 L.Ed.2d 749 (1977), citing United States v. Brick, 502 F.2d 219, 224 (8th Cir. 1974).
The stipulated evidence against Cali was that he received line information on sporting events from, furnished layoff wagers on sports and horses to, and discussed the settlement of his account with, Santarpio. Furthermore, Cali discussed with Mastrullo the fact that his, Cali’s, “makeup” on sports to Santarpio (that is, the amount owed) was $25,000. Cali contends that the evidence simply does not show a sufficiently regular and consistent type of connection with Santarpio to fuse Cali into the overall operation. The fact, however, that Cali gave line information to, and accepted layoff bets from Santarpio, is basis enough for the conviction; it could be determined that Cali’s participation was necessary and useful to Santarpio’s gambling enterprise. See United States v. DiMuro, supra, 540 F.2d at 508.
The stipulated evidence against Hamperian was that he furnished layoff wagers on numbers to Santarpio and Bruun and discussed the settlement of his account, on numbers, horses and sports with Santarpio. He also discussed with Santarpio his “commission and his pay-off of ‘hits’ on numbers to customers of the business” and his reimbursement by Thomas Hurley of monies paid out. The Government’s expert concluded from this that Hamperian was part of the unified gambling business involving the other defendants. To be sure, he did not describe and explain the relevancy of the factors upon which he rested his opinion; on the other hand, Hamperian chose not to cross-examine the expert, although offered the.opportunity. On cross-examination, Hamperian could have discovered the basis for the ultimate opinion, and attempted to show its inadequacy. Except for reserving an objection to the characterization of his bets as layoff wagers rather than personal bets, Hamperian did nothing to cast doubt on the validity of the opinion, see Fed.R.Evid. 705. Under the circumstances, the court was entitled to credit the expert’s conclusion. Hamperian’s contention that he did not know the identity of Santarpio and the others does not bear on the sufficiency of the evidence necessary to convict Hamperian under section 1955. See United States v. DiMuro, supra, 540 F.2d at 508 n.5.
Ill
Hamperian was sentenced to six months probation “with special conditions of probation that defendant pay a fine of $1500 and pay attorney fees during the probationary period at a rate to be determined by the probation department.” Hamperian’s trial counsel was court appointed, and he contends that the special condition requiring repayment of attorney’s fees exceeded the court’s powers.
The district court was entitled to place Hamperian on probation “upon such terms and conditions as the court deems best” and it could condition probation on “a fine in one or several sums.” 18 U.S.C. § 3651. That authority was sufficient to embrace this sort of condition which, if Hamperian is not indigent, might be thought to bear “ ‘a reasonable relationship to the treatment of the accused and the protection of the public’ ”, see, e. g., United States v. Pastore, 537 F.2d 675, 681 (2d Cir. 1976), quoting United States v. Alarik, 439 F.2d 1349, 1351 (8th Cir. 1971). However, the condition cannot be enforced so as to conflict with Hamperian’s sixth amendment rights; if Hamperian is unable to pay the fees, revocation of probation for nonpayment would be patently unconstitutional. See Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971); Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970).
In Fuller v. Oregon, 417 U.S. 40, 94 S.Ct. 2116, 40 L.Ed.2d 642 (1974), the Supreme Court upheld a state sentence in which the defendant was placed on probation conditioned, inter alia, on his payment of legal fees. The Supreme Court found that under Oregon’s recoupment statute there would be adequate safeguards for indigents. Re-coupment was necessary only when a party was able to pay or where payment would not constitute manifest hardship. Id. at 53, 94 S.Ct. 2116. Revocation of probation for failure to pay would conform to these standards, the Court reasoned, and thus would not impermissibly discriminate on the basis of wealth, there being no constitutional prohibition against imprisonment for nonpayment of a fine by one who has the necessary financial means. Id. at 53 n.12, 94 S.Ct. 2116, quoting Tate v. Short, supra, 401 U.S. at 400, 91 S.Ct. 668.
The federal recoupment statute, 18 U.S.C. § 3006A(c) and (f), provides that whenever a magistrate or court finds that funds are available for payment from or on behalf of a person furnished representation, it may, “as the interests of justice may dictate”, direct payment to the appropriate parties. Payment, however, may not be directed without a finding that the funds are available. See United States v. Bursey, 515 F.2d 1228, 1236 (5th Cir. 1975). See generally United States v. Kelly, 467 F.2d 262, 266 (7th Cir. 1972), cert. denied, 411 U.S. 933, 93 S.Ct. 1905, 36 L.Ed.2d 393, rehearing denied, 412 U.S. 923, 93 S.Ct. 2738, 37 L.Ed.2d 151 (1973). So long as it is understood that the special condition of probation may only be enforced with proper regard to the question of Hamperian’s ability to pay, and not otherwise, we see no difficulty. Cf. Fuller v. Oregon, supra, 417 U.S. at 53 n.12, 94 S.Ct. 2116; Tate v. Short, supra. See also ABA Standards Relating to Probation § 3.2(d) (Approved Draft 1970). Hamperian makes no claim on appeal that he is unable to pay; if that is the case he should address himself in the first instance to the district court. See generally United States v. Villarin Gerena, 553 F.2d 723, 727 n.10 (1st Cir. 1977).
Affirmed.
. The indictments charged appellants with having “conducted, managed, supervised, owned, and directed an illegal gambling business . .
(1) having a gross revenue of two thousand dollars ($2,000) on a single day, (2) remaining in substantially continuous operation in excess of thirty (30) days, (3) involving five persons in its conduct, financing, management, supervision, direction, and ownership, and (4) being in violation of Massachusetts General Laws, Chapter 271, Sections 7, 17 and 17(a) [17A]”, all in violation of 18 U.S.C. §§ 1955 and 2. Four appellants Cali, Hamperian, Smith and Santarpio, argue that the indictments are duplicitous and should have been dismissed because each of the cited sections of Mass.Gen. Laws c. 271 includes numerous separate state crimes and appellants were thus deprived of notice of what allegations they had to prepare to meet. The argument is without merit. The indictments adequately set out the elements of the federal crime; appellants were not misled nor prejudiced. Fed.R.Crim.P. 7(c)(3). See United States v. Morrison, 531 F.2d 1089, 1094 (1st Cir. 1976). We need not decide whether it would have been enough, as the Government suggests, for the indictment to state only that the operation was being carried out “in violation of state law”. Cf. Babb v. United States, 218 F.2d 538, 540 (5th Cir. 1955).
. There is no merit in appellants’ argument that the indictments should have been dismissed because they were not signed by the United States Attorney. Mr. O’Sullivan is “an attorney for the government” as required by Fed.R. Crim.P. 7(c). See United States v. Morrison, 531 F.2d 1089 (1st Cir. 1976). Insofar as his sole signature may have failed to comply with the Attorney General’s Guidelines Governing Interrelationships Between Strike Forces and U.S. Attorney’s Offices (reproduced in In re Persico, 522 F.2d 41, 70 (2d Cir. 1975)) it is only of concern, if at all, to the Justice Department; appellants may not raise the issue.
. Another argument made by Santarpio and adopted by Bruun, Hamperian and Smith, is quickly disposed of. Since oral argument was heard in this case the Supreme Court has stated that the
“provisions for mandatory and discretionary inventory notice [in 18 U.S.C. § 2518(8)(d)] . satisfy constitutional requirements. See Katz v. United States, 389 U.S. 347, 355-56 [88 S.Ct. 507, 513, 19 L.Ed.2d 576] and n.16 (1967); Berger v. New York, 388 U.S. 41, 60 [87 S.Ct. 1873, 1884, 18 L.Ed.2d 1040] (1967).”
United States v. Donovan, 429 U.S. 413, 429 n.19, 97 S.Ct. 658, 669, 50 L.Ed.2d 652 (1977). See generally United States v. Harrigan, 557 F.2d 879 (1st Cir. 1977).
. We find no merit in appellants’ contention that Agent Daly’s affidavits were infected by serious misrepresentations. Assuming that Agent Daly knew that informant number three was unwilling to testify but not precisely why, and that to this extent he misspoke when he said that none of the informants was willing to testify “for fear of his personal safety”, the error did not compel a finding of bad faith, nor was it of major materiality. As the Government was not obliged to pursue with its informants the possibility of protective custody, United States v. Scibelli, 549 F.2d 222, 228 n.5 (1st Cir. 1977), cert. denied, 431 U.S. 960, 97 S.Ct. 2687, 53 L.Ed.2d 278 (1977), its failure to do so did not undermine the representations in the affidavit.
Similarly there is no merit in the claim that the affidavits were fatally undermined because alternative investigative measures were not exhaustive enough.- The statute does not require that the Government try every possible technique before resorting to wiretapping. See infra.
. During the second set of wiretaps mention was made in the course of an intercepted conversation of “Freestone”. Agent Daly, in his affidavit in support of the third set of taps, stated that he knew “Freestone” to be Palaz-zollo’s nickname. Palazzollo was, however, not named as one the Government had probable cause to believe to be committing the offenses for which the second tap was sought, see 18 U.S.C. § 2518(l)(b)(iv), although he was subsequently intercepted during the third set of wiretaps. While not arguing that the failure to identify him was an effort to mislead the district court as to whether there was probable cause to tap, Palazzolo urges that the Government’s purported failure to comply with section 2518(l)(b)(iv) should lead to the suppression of the evidence against him.
It is true “that a wiretap application must name an individual if the Government has probable cause to believe that the individual is engaged in the criminal activity under investigation and expects to intercept the individual’s conversations over the target phone.” United States v. Donovan, 429 U.S. 413, 97 S.Ct. 658, 50 L.Ed.2d 652 (1977), but, where, as here, “the application provided sufficient information to enable the issuing judge to determine that the statutory preconditions were satisfied”, id. at 436, 97 S.Ct. at 672, the interceptions are not unlawful and the evidence will not be suppressed. Id. at 439, 97 S.Ct. 658.
. Rule 705 adopts the recent trend away from use of the hypothetical question. Notes of Advisory Committee on Proposed Rules, 28 U.S.C. Rule 705; see McCormick’s Handbook of the law of Evidence § 14 at 31 and § 16 at 37 (2d ed. 1972). Rule 705 was in force at the time of appellants’ trial in March 1976.
Question: What is the number of judges who dissented from the majority?
Answer:
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songer_district
|
F
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
ARNOLD PRODUCTIONS, INC., Plaintiff-Appellant, v. FAVORITE FILMS CORPORATION, and Nationwide Television Corporation, Defendants-Appellees.
No. 10, Docket 25995.
United States Court of Appeals Second Circuit.
Argued Sept. 28, 1961.
Decided Feb. 6, 1962.
See also 291 F.2d 94.
Samuel Gottlieb, New York City (Harry Giesow, Gainsburg, Gottlieb, Levitan & Cole, New York City, on the brief), for plaintiff-appellant.
Harold J. Sherman, New York City (Fitelson & Mayers, New York City, on the brief), for defendant-appellee Favorite Films Corp.
Winfield E. Aronberg, New York City, for defendant-appellee Nationwide Television Corp.
Before LUMBARD, Chief Judge, and FRIENDLY and SMITH, Circuit Judges..
LUMBARD, Chief Judge.
Arnold Productions, Inc., the owner of two motion pictures, “Hangmen Also-Die” and “It Happened Tomorrow,” on May 27, 1947 entered into a distribution-agreement with Favorite Films Corp., which granted Favorite “the sole and exclusive right to reproduce, lease, license, sub-license, exhibit, rent, distribute and exploit [the films] * * * for reissue-purposes, for a period of seven (7) years,” and similar rights for the same-period “to lease, license, sub-license, rent, distribute and exploit [the films] * * *• through and by television.” In return Favorite agreed “to use its best efforts-diligently and in good faith to exploit the-said photoplays and to obtain as wide a distribution thereof and as many exhibitions and bookings thereof as possible.”It was further provided that “This agreement is personal and cannot be assigned by the Licensee voluntarily, by operation of law or otherwise, without the consent in writing of the Licensor first obtained.” Favorite was to retain 62% percent of the receipts from the exploitation of the films, and Arnold was to receive the remainder.
On March 14, 1949, Favorite entered into an agreement with Nationwide Television Corp., co-defendant in this action, constituting Nationwide its “sole and exclusive agent for the television distribution of the films” on terms substantially the same as those of the Arnold-Favorite contract. Nationwide, in turn, orally subleased the television distribution rights to its wholly-owned subsidiary, Film Equities Corp., which was subsequently succeeded by another subsidiary of Nationwide called Unity, Inc. These subsidiaries handled the actual distribution of the films and accounted directly to Favorite, retaining 25 percent of all proceeds.
This is a diversity action brought by Arnold, a Delaware corporation, against Favorite and Nationwide, both New York corporations; New York law applies. Arnold claims that Nationwide was guilty of fraud against it, and that Favorite broke the contract in failing to use its “best efforts” in television distribution and in delegating the television distribution to Nationwide; it also seeks an accounting from Favorite. No question is raised of Favorite’s performance of that part of the contract covering the reissue of the films for theatre showings. Judge Murphy, in his opinion reported at 176 F.Supp. 862, granted judgment for Nationwide and for Favorite, except to the extent of requiring Favorite to account for its receipts from the licensing of the two films since the date of the last financial report to Arnold in 1955. We affirm the judgment.
Arnold’s only claim against Nationwide appears to be that it conspired with Favorite to defraud Arnold by withholding records relating to the licensing of the films and refusing to return the films on receipt of Arnold’s notice of termination of the contract. We agree with Judge Murphy that there was no evidence whatsoever suggesting any fraudulent intent on Nationwide’s part.
Arnold’s first claim against Favorite is that it committed a breach of the “best efforts” clause in that the methods of distribution used were not the most remunerative possible. It claims that its revenues would have been greater had the films been marketed individually rather than as parts of packages also including less desirable films owned by others. We see no reason to upset Judge Murphy’s finding of fact that there was no proof that individual promotion would have been more profitable or his alternative finding that in any event the claimed injury was not shown with sufficient definiteness to permit any calculation of damages, cf. Broadway Photoplay Co. v. World Film Corp., 225 N.Y. 104, 121 N.E. 756 (1919).
Second, Arnold argues that it was error for the court below to limit the accounting it required of Favorite to those proceeds received from the exploitation of the films since it had last rendered Arnold an account. Arnold claims that Favorite should be compelled to account to it for all receipts from the films during the entire period of their contractual relationship. We see no reason to impose such a requirement. Indeed, we see no justification for even the limited accounting granted by the court below. “Even though an accounting were required to ascertain the amount of damages, that fact would be insufficient to support a claim for equitable relief unless a fiduciary relationship were shown * * *” Terner v. Glickstein & Terner, Inc., 283 N.Y. 299, 28 N.E.2d 846 (1940). The relationship between Arnold and Favorite was one of simple contract. Arnold could, by means of familiar dis-covery devices, obtain any information in the hands of Favorite or others it needed to establish its allegations as to damages. Because there is no objection by Favorite, however, we do not disturb the allowance below of a limited accounting.
Arnold’s third assignment of error, and that with which we are here primarily concerned, is that Favorite violated the contract by delegating its performance to Nationwide rather than handling the distribution itself as agreed. We find no error in Judge Murphy’s holding that Favorite did not assign the contract to Nationwide or abandon its duties under it, and thus committed no breach.
It is clear that Favorite did not technically “assign” its contract in its entirety, but merely delegated a part (the extent of which we shall presently discuss) of its duties. Favorite did not purport to divest itself of its ultimate responsibility to Arnold. Although it made Nationwide its “sole and exclusive agent,” it maintained certain supervisory powers over it. It reserved “the right to designate * * * a Representative, to whom you agree to submit for approval or rejection, each and all of your proposed license or sub-license agreements with respect to the Photoplays,” and it appointed its president as such representative. Thus there was no breach of the specific covenant against assignment. Rather the question is whether the delegation of performance deprived Arnold of any right to Favorite’s own services which it may have acquired explicitly from the provision that “this agreement is personal” or implicitly from the “best efforts” clause and the inherent nature of the contract.
We do not find it necessary to consider whether New York would impose the same implied duty of personal service upon a contracting corporation as it would on an individual under the same circumstances, or whether this contract by its explicit terms gave Arnold the right to demand Favorite’s own services. Even if we assume that only Favorite was to give the performance called for by the contract, which was the “exploitation” of the films and the “obtaining” of bookings, we do not believe that this performance excluded such use of Nationwide’s services as Favorite made. The contract must be interpreted in light of what the record reveals about the practices of the business in which the parties were engaged, and especially what it reveals about the general understanding and course of dealings between them.
It is significant that under this contract Favorite’s duties with respect to reissue of the two films to theatres were exactly the same as the television distribution duties here in question. There is no dispute that it was understood that little if any of the actual theatre distribution (possibly that in New York City, at the most) was to be done by Favorite itself; most was to be delegated to various “franchise holders” in various parts of the country, who were to do the actual work of selling films to local exhibitors. There is no indication that Favorite’s supervision over these franchise holders was any greater than its supervision over Nationwide’s television distribution. Favorite maintained the right to reject any agreements suggested by Nationwide, and there was sufficient evidence that on occasion its president actually did so with respect to television distribution to justify Judge Murphy’s finding that there was no abdication of responsibility. There is no suggestion that Arnold was endangered by lack of financial responsibility on Nationwide’s part, or in any other way not having to do with the quality of the performance it received. In any event, the concession that under the same contract distribution through franchise holders was contemplated is sufficient to foreclose any inference that Favorite’s employees were expected to do all television distribution personally. There is, indeed, testimony which would support a finding that throughout most of the term of the contract Arnold acquiesced in Favorite’s delegation of sales duties.
Affirmed.
. Since Nationwide, Film Equities and Unity all had common ownership and common personnel, we shall treat them as one entity, as did the court below.
. “In a contract for a sales agency, the personal performance of the agent is practically always a condition precedent to the duty of the principal and employer,” and the agent cannot discharge his obligation by furnishing a substitute. 4 Corbin, Contracts 444-45 (1951); see, Paige v. Faure, 229 N.Y. 114, 127 N.E. 898, 10 A.L.R. 649 (1920); cf. Nassau Hotel Co. v. Barnett & Barse Corp., 162 App.Div. 381, 147 N.Y.S. 283 (1st Dept. 1914), aff’d mem., 212 N.Y. 568, 106 N.E. 1036 (1914). Plaintiff has made no claim that Favorite’s duty should be determined by principles of actual agency, and we see no reason to treat tbe duty as more than contractual.
. There is some reason to believe that the New York courts would not permit such an implication in the case of a corporation. Wetherell Bros. v. United States Steel Co., 200 F.2d 761 (1 Cir. 1953); New York Bank Note Co. v. Hamilton Bank Note Engraving & Printing Co., 180 N.Y. 280, 293, 73 N.E. 48, 52 (1905); New England Iron Co. v. Gilbert Elevated Ry. Co., 91 N.Y. 153, 166-167 (1883).
Question: From which district in the state was this case appealed?
A. Not applicable
B. Eastern
C. Western
D. Central
E. Middle
F. Southern
G. Northern
H. Whole state is one judicial district
I. Not ascertained
Answer:
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sc_issuearea
|
G
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states.
EDWARD J. DeBARTOLO CORP. v. NATIONAL LABOR RELATIONS BOARD et al.
No. 81-1985.
Argued March 22, 1983 —
Decided June 24, 1983
Lawrence M. Cohen argued the cause for petitioner. With him on the briefs were W. Reynolds Allen and Mark E. Levitt.
Norton J. Come argued the cause for respondents. With him on the brief for respondent National Labor Relations Board were Solicitor General Lee, Linda Sher, and Elinor Hadley Stillman. Richard H. Frank, Lawrence J. Cohen, Lawrence Gold, and George Kaufmann filed a brief for respondent Florida Gulf Coast Building Trades Council, AFL-CIO.
Briefs of amici curiae urging reversal were filed by Stephen A. Bokat for the Chamber of Commerce of the United States; by Harry L. Browne for the American Retail Federation; by G. Brockwel Heylin for the Associated General Contractors of America, Inc.; and by Edward J. Sack for the International Council of Shopping Centers, Inc.
Justice Stevens
delivered the opinion of the court.
As a result of a labor dispute between respondent union and the H. J. High Construction Company (High), the union passed out handbills urging consumers not to trade with a group of employers who had no business relationship of any kind with High. The question presented is whether that handbilling is exempted from the prohibition against secondary boycotts contained in § 8(b)(4) of the National Labor Relations Act, as amended, 29 U. S. C. § 158(b)(4), by what is known as the “publicity proviso” to that section.
High is a general building contractor retained by the H. J. Wilson Company (Wilson) to construct a department store in a shopping center in Tampa, Fla. Petitioner, the Edward J. DeBartolo Corporation (DeBartolo), owns and operates the center. Most of the 85 tenants in the mall signed a standard lease with DeBartolo providing for a minimum rent (which increases whenever a large new department store opens for business) plus a percentage of gross sales, and requiring the tenant to pay a proportionate share of the costs of maintaining the mall’s common areas, to pay dues to a merchants’ association, and to take part in four joint advertising brochures. Wilson signed a slightly different land lease agreement, but it also promised to pay dues to the merchants’ association and to share in the costs of maintaining the common areas. Under the terms of Wilson’s lease, neither DeBartolo nor any of the other tenants had any right to control the manner in which High discharged its contractual obligation to Wilson.
The union conducted its handbilling at all four entrances to the shopping center for about three weeks, while the new Wilson store was under construction. Without identifying High by name, the handbill stated that the contractors building Wilson’s Department Store were paying substandard wages, and asked the readers not to patronize any of the stores in the mall until DeBartolo publicly promised that all construction at the mall would be done by contractors who pay their employees fair wages and fringe benefits. The handbilling was conducted in an orderly manner, and was not accompanied by any picketing or patrolling. DeBartolo advised the union that it would not oppose this handbilling if the union modified its message to make clear that the dispute did not involve DeBartolo or any of Wilson’s cotenants, and if it limited its activities to the immediate vicinity of Wilson’s. When the union persisted in distributing handbills to all patrons of the shopping center, DeBartolo filed a trespass action in the state court and an unfair labor practice charge with the National Labor Relations Board. The Board’s General Counsel issued a complaint.
The complaint recited the dispute between the union and High, and noted the absence of any labor dispute between the union and DeBartolo, Wilson, or any of the other tenants of the East Lake Mall. The complaint then alleged that in furtherance of its primary dispute with High, the union “has threatened, coerced or restrained, and is threatening, coercing or restraining, various tenant Employers who are engaged in business at East Lake Square Mall, and who lease space from DeBartolo in East Lake Square Mall, by handbill-ing the general public not to do business with the above-described tenant Employers . . . .” Complaint ¶ 8(a). The complaint alleged that the object of the handbilling “was and is, to force or require the aforesaid tenant Employers in East Lake Square Mall... to cease using, handling, transporting, or otherwise dealing in products and/or services of, and to cease doing business with DeBartolo, in order to force DeBartolo and/or Wilson’s not to do business with High.” Complaint ¶ 8(b).
After the union filed its answer, the parties stipulated to the relevant facts and submitted the matter to the Board for decision. Without deciding whether the handbilling constituted a form of “coercion” or “restraint” proscribed by § 8(b)(4), the Board concluded that it was exempted from the Act by the “publicity proviso” and dismissed the complaint. Florida Gulf Coast Building Trades Council, AFL-CIO (Edward J. DeBartolo Corp.), 252 N. L. R. B. 702 (1980). The Board reasoned that there was a “symbiotic” relationship between DeBartolo and its tenants, including Wilson, and that they all would derive a substantial benefit from the “product” that High was constructing, namely Wilson’s new store. The Board did not expressly state that DeBartolo and the other tenants could be said to be distributors of that product, but concluded that High’s status as a producer brought a total consumer boycott of the shopping center within the publicity proviso.
The Court of Appeals agreed. 662 F. 2d 264 (CA4 1981). It observed that our decision in NLRB v. Servette, Inc., 377 U. S. 46 (1964), had rejected a narrow reading of the proviso and that the Board had consistently construed it in an expansive manner. Finding the Board’s interpretation consistent with the rationale of the National Labor Relations Act, it held that High was a producer and that DeBartolo and the other tenants were distributors within the meaning of the proviso. This holding reflected the court’s belief that in response to the union’s consumer handbilling, DeBartolo and the storekeepers would be able “in turn, to apply pressure on Wilson’s and High.” 662 F. 2d, at 271. Because the decision conflicts with that of the Court of Appeals for the Eighth Circuit in Pet, Inc. v. NLRB, 641 F. 2d 545 (1981), we granted certiorari. 459 U. S. 904 (1982).
The Board and the union correctly point out that DeBartolo cannot obtain relief in this proceeding unless it prevails on three separate issues. It must prove that the union did “threaten, coerce, or restrain” a person engaged in commerce, with the object of “forcing or requiring” someone to cease doing business with someone else — that is to say, it must prove a violation of § 8(b)(4)(ii)(B). It must also overcome both the union’s defense based on the publicity proviso and the union’s claim that its conduct was protected by the First Amendment. Neither the Board nor the Court of Appeals considered whether the handbilling in this case was covered by § 8(b)(4)(ii)(B) or protected by the First Amendment, because both found that it fell within the proviso. We therefore limit our attention to that issue.
The publicity proviso applies to communications “other than picketing,” that are “truthful,” and that do not produce either an interference with deliveries or a work stoppage by employees of any person other than the firm engaged in the primary labor dispute. The Board and the Court of Appeals found that these three conditions were met, and these findings are not now challenged. The only question is whether the handbilling “advis[ed] the public . . . that a product or products are produced by an employer with whom the labor organization has a primary dispute and are distributed by another employer.” The parties agree that this language limits the proviso’s protection to publicity that is designed to create consumer pressure on secondary employers who distribute the primary employer’s products. They do not agree, however, on what constitutes a producer-distributor relationship.
We have analyzed the producer-distributor requirement in only one case, NLRB v. Servette, Inc., supra. Servette involved a primary dispute between a union and a wholesale distributor of candy and certain other specialty items sold to the public by supermarkets. The union passed out handbills in front of some of the chainstores urging consumers not to buy any products purchased by the store from Servette. We held that even though Servette did not actually manufacture the items that it distributed, it should still be regarded as a “producer” within the meaning of the proviso. We thus concluded that the handbills advised the public that the products were produced by an employer with whom the union had a primary dispute (Servette) and were being distributed by another employer (the supermarket).
In reaching that conclusion, we looked to the legislative history of the Labor-Management Reporting and Disclosure Act of 1959, Pub. L. 86-257, 73 Stat. 519, which had simultaneously strengthened the secondary boycott prohibition and added the publicity proviso. We noted that a principal source of congressional concern had been the secondary boycott activities of the Teamsters Union, which for the most part represented employees of motor carriers who did not “produce” goods in the technical sense of the verb. The Teamsters’ activities were plainly intended to be covered by the new prohibitions in § 8(b)(4)(ii)(B), and we declined to hold that Congress, in using the word “produced,” had intended to exclude the Teamsters entirely from the offsetting protections of the proviso. “There is nothing in the legislative history which suggests that the protection of the proviso was intended to be any narrower in coverage than the prohibition to which it is an exception, and we see no basis for attributing such an incongruous purpose to Congress.” 377 U. S., at 55.
The focus of the analysis in Servette was on the meaning of the term “producer.” In this case, DeBartolo is willing to concede that Wilson distributes products that are “produced” by High within the meaning of the statute. This would mean that construction workers, like truckdrivers, may perform services that are essential to the production and distribution of consumer goods. We may therefore assume in this case that High, the primary employer, is a producer within the meaning of the proviso. Indeed, we may assume here that the proviso’s “coverage” — the types of primary disputes it allows to be publicized — is broad enough to include almost any primary dispute that might result in prohibited secondary activity.
We reject, however, the Board’s interpretation of the extent of the secondary activity that the proviso permits. The only publicity exempted from the prohibition is publicity intended to inform the public that the primary employer’s product is “distributed by” the secondary employer. We are persuaded that Congress included that requirement to reflect the concern that motivates all of § 8(b)(4): “shielding unof-fending employers and others from pressures in controversies not their own.” NLRB v. Denver Building & Construction Trades Council, 341 U. S. 675, 692 (1951). In this case, the Board did not find that any product produced by High was being distributed by DeBartolo or any of Wilson’s cotenants. Instead, it relied on the theory that there was a symbiotic relationship between them and Wilson, and that DeBartolo and Wilson’s cotenants would derive substantial benefit from High’s work. That form of analysis would almost strip the distribution requirement of its limiting effect. It diverts the inquiry away from the relationship between the primary and secondary employers and toward the relationship between two secondary employers. It then tests that relationship by a standard so generous that it will be satisfied by virtually any secondary employer that a union might want consumers to boycott. Yet if Congress had intended all peaceful, truthful handbilling that informs the public of a primary dispute to fall within the proviso, the statute would not have contained a distribution requirement.
In this case, DeBartolo is willing to assume that Wilson distributes products that are “produced” by High within the meaning of the statute. Wilson contracted with High to receive the construction services that are the subject of the primary dispute, and the cost of those services will presumably be reflected in the prices of the products sold by Wilson. But the handbills at issue in this case did not merely call for a boycott of Wilson’s products; they also called for a boycott of the products being sold by Wilson’s cotenants. Neither DeBartolo nor any of the cotenants has any business relationship with High. Nor do they sell any products whose chain of production can reasonably be said to include High. Since there is no justification for treating the products that the cotenants distribute to the public as products produced by High, the Board erred in concluding that the handbills came within the protection of the publicity proviso.
Stressing the fact that this case arises out of an entirely peaceful and orderly distribution of a written message, rather than picketing, the union argues that its handbilling is a form of speech protected by the First Amendment. The Board, without completely endorsing the union’s constitutional argument, contends that it has sufficient force to invoke the Court’s prudential policy of construing Acts of Congress so as to avoid the unnecessary decision of serious constitutional questions. See NLRB v. Catholic Bishop of Chicago, 440 U. S. 490, 500-501 (1979). That doctrine, however, serves only to authorize the construction of a statute in a manner that is “fairly possible.” Crowell v. Benson, 285 U. S. 22, 62 (1932). We do not believe that the Board’s expansive reading of the proviso meets that standard.
Nevertheless, we do not reach the constitutional issue in this case. For, as we noted at the outset, the Board has not yet decided whether the handbilling in this case was proscribed by the Act. It rested its decision entirely on the publicity proviso and never considered whether, apart from that proviso, the union’s conduct fell within the terms of §8(b)(4)(ii)(B). Until the statutory question is decided, review of the constitutional issue is premature.
The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
That section makes it an unfair labor practice for a labor organization or its agents
“(ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is:
“(B) forcing or requiring any person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor or manufacturer, or to cease doing business with any other person _” 61 Stat. 140, as amended, 29 U. S. C. § 158(b)(4).
That proviso reads as follows:
“Provided further, That for the purposes of this paragraph (4) only, nothing contained in such paragraph shall be construed to prohibit publicity, other than picketing, for the purpose of truthfully advising the public, including consumers and members of a labor organization, that a product or products are produced by an employer with whom the labor organization has a primary dispute and are distributed by another employer, as long as such publicity does not have an effect of inducing any individual employed by any person other than the primary employer in the course of his employment to refuse to pick up, deliver, or transport any goods, or not to perform any services, at the establishment of the employer engaged in such distribution.” 73 Stat. 543, 29 U. S. C. § 158(b)(4).
The handbills read:
“PLEASE DON’T SHOP AT EAST LAKE SQUARE MALL PLEASE
“The FLA. GULF COAST BUILDING TRADES COUNCIL, AFL-CIO is requesting that you do not shop at the stores in the East Lake Square Mall because of The Mall ownership’s contribution to substandard wages. “The Wilson’s Department Store under construction on these premises is being built by contractors who pay substandard wages and fringe benefits. In the past, the Mall’s owner, The Edward J. DeBartolo Corporation, has supported labor and our local economy by insuring that the Mall and its stores be built by contractors who pay fair wages and fringe benefits. Now, however, and for no apparent reason, the Mall owners have taken a giant step backwards by permitting our standards to be torn down. The payment of substandard wages not only diminishes the working person’s ability to purchase with earned, rather than borrowed, dollars, but it also undercuts the wage standard of the entire community. Since low construction wages at this time of inflation means decreased purchasing power, do the owners of East Lake Mall intend to compensate for the decreased purchasing power of workers of the community by encouraging the stores in East Lake Mall to cut their prices and lower their profits? “CUT-RATE WAGES ARE NOT FAIR UNLESS MERCHANDISE PRICES ARE ALSO CUT-RATE.
“We ask for your support in our protest against substandard wages. Please do not patronize the stores in the East Lake Square Mall until the Mali’s owner publicly promises that all construction at the Mall will be done using contractors who pay their employees fair wages and fringe benefits.
“IF YOU MUST ENTER THE MALL TO DO BUSINESS, please express to the store managers your concern over substandard wages and your support of our efforts.
“We are appealing only to the public — the consumer. We are not seeking to induce any person to cease work or to refuse to make deliveries.”
The Board concluded:
“In sum, we find that the mutual obligations between the parties and the benefits derived from participation in the mall enterprise reflect the symbiotic nature of the relationship between DeBartolo and its tenants, not unlike the relationship between the operations of a diversified corporation. High’s contribution to this enterprise is as an employer which applies its labor to a product, i. e., the Wilson’s store, from which DeBartolo and its tenants will derive substantial benefit. Consequently, we find as a result of its relationship with Wilson’s and the shopping center enterprise that High applies capital, enterprise, and service to that enterprise, and thus that it is a ‘producer’ in the sense that that term is used in the publicity proviso as interpreted by the Supreme Court in Servette, [377 U. S. 46 (1964)], and by this Board in Pet, [244 N. L. R. B. 96 (1979)].
“Having found High to be a producer within the meaning of Section 8(b)(4), we find that Respondent’s handbilling urging a total consumer boycott of DeBartolo and its tenants other than Wilson’s is protected by the publicity proviso of that section of the Act.” 252 N. L. R. B., at 705.
DeBartolo was successful in its trespass action in the state court. The handbilling at the East Lake Mall was enjoined and ceased on January 4, 1980. The parties agree, however, that the case is not moot. DeBartolo operates a number of shopping centers at various locations throughout the United States, and the union maintains that it has a right to engage in comparable handbilling in the future if a similar problem should again arise. That possibility, together with the fact that a cease-and-desist order would protect DeBartolo from a recurrence in the future, provides a sufficient basis for concluding that the case is not moot.
Cf. Local 712, IBEW (Golden Dawn Foods), 134 N. L. R. B. 812 (1961) (electrical and refrigeration work); Plumbers & Pipefitters, Local 1A2 (Shop-Rite Foods), 133 N. L. R. B. 307 (1961) (refrigeration work).
As the Board stated in International Brotherhood of Teamsters, Local 537 (Lohman Sales Co.), 132 N. L. R. B. 901, 907 (1961), “there is no suggestion either in the statute itself or in the legislative history that Congress intended the words ‘product’ and ‘produced’ to be words of special limitation.”
See also Longshoremen v. Allied International, Inc., 456 U. S. 212, 223 (1982); Carpenters v. NLRB, 357 U. S. 93, 100 (1958); H. R. Rep. No. 245, 80th Cong., 1st Sess., 24 (1947), 1 NLRB, Legislative History of the Labor Management Relations Act of 1947, p. 315 (1948).
The Board concedes in its brief that Congress intended this language to restrict the scope of the proviso. It acknowledges that the product must be “in some manner distributed by the employers at whose customers the nonpicketing publicity is immediately directed.” Brief for Respondent NLRB 9.
Concededly, “[t]he proviso was the outgrowth of a profound Senate concern that the unions’ freedom to appeal to the public for support of their case be adequately safeguarded.” NLRB v. Servette, Inc., 377 U. S. 46, 55 (1964). Indeed, several legislators referred to the First Amendment explicitly during the debates. E. g., 105 Cong. Rec. 6232 (1959), 2 NLRB, Legislative History of the Labor-Management Reporting and Disclosure Act of 1959, p. 1037 (1959) (Sen. Humphrey); 105 Cong. Rec., at 18135, 2 NLRB Legislative History, at 1722 (Rep. Udall). That fact, however, merely confirms in this case the presumption that underlies Catholic Bishop and Crowell: when Congress legislates in a fashion that restricts communicative activity, it expects the statutory language to be construed narrowly. See Catholic Bishop, 440 U. S., at 507. It does not, however, expect the statutory language to be deprived of substantial practical effect.
Cf. NLRB v. Retail Store Employees, 447 U. S. 607 (1980) (picket line advocating boycott of substantial portion of secondary employer’s business is proscribed); NLRB v. Fruit Packers, 377 U. S. 58 (1964) (“Tree Fruits”) (picket line advocating boycott of insubstantial portion of secondary employer’s business is not proscribed).
Question: What is the issue area of the decision?
A. Criminal Procedure
B. Civil Rights
C. First Amendment
D. Due Process
E. Privacy
F. Attorneys
G. Unions
H. Economic Activity
I. Judicial Power
J. Federalism
K. Interstate Relations
L. Federal Taxation
M. Miscellaneous
N. Private Action
Answer:
|
songer_constit
|
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 constitutionality of a law or administrative action, and if so, whether the resolution of the issue by the court favored the appellant.
UNITED STATES of America, Appellee, v. Patti Ann MEYER, Appellant.
No. 90-5085MN.
United States Court of Appeals, Eighth Circuit.
Submitted June 13, 1990.
Decided June 26, 1990.
Paul Engh, Minneapolis, Minn., for appellant.
Jeanne J. Graham, Asst. U.S. Atty., Minneapolis, Minn., for appellee.
Before JOHN R. GIBSON, MAGILL, and BEAM, Circuit Judges.
PER CURIAM.
Patti Ann Meyer appeals her conviction of making, and aiding and abetting the making of false statements in a passport application, in violation of 18 U.S.C. §§ 1542 and 2. Meyer argues that the government’s delay of over three years between the date of her offense and trial violated her sixth amendment right to a speedy trial, her fifth amendment right to due process and the Speedy Trial Act, 18 U.S.C. § 3161, et. seq. She further argues that the government’s proof at trial was insufficient as a matter of law to prove her guilt beyond a reasonable doubt. The district court rejected these arguments. We affirm.
I.
On September 6, 1985, Wilson George Simon (Simon), Meyer’s boyfriend, applied for a United States passport in the name of his deceased brother, Sayed George Simon (Sayed Simon). Because Simon did not have the necessary identification to prove he was Sayed Simon, he submitted an affidavit in Meyer’s name vouching for his identity. Despite her protestations to the contrary, through its verdict the jury found that Meyer personally signed the affidavit.
Over one year before this incident, Simon was tried and convicted in federal district court of possession with intent to distribute hashish and hashish oil, in violation of 21 U.S.C. § 841(a)(1), and of being a convicted felon in possession of two firearms, in violation of 18 U.S.C. § 922. Meyer attended the entire trial and, along with others, picketed outside the courthouse carrying signs declaring Simon’s innocence.
During the pendency of Simon’s appeal to this court, he remained free on bond. On August 15, 1985, Simon, Meyer and two others applied for passports. Simon listed his home address as 1811 Como Avenue S.E., Minneapolis, his travel plans as Europe and his date of departure as August 25, 1985. Meyer listed the same information on her application. In addition, Simon’s daughter and Takashi David Yoshino each completed a passport application, listing August 25, 1985 as their departure date and Europe as their destination.
Because neither Simon’s daughter nor Yoshino had sufficient forms of identification, Simon signed an affidavit of identifying witness vouching for his daughter’s identity and Meyer signed an affidavit vouching for Yoshino’s identity. Upon submitting the form, Meyer presented her driver’s license to Roger Walstead, a postal employee who processes passport applications. Walstead testified that on the affidavit he copied Meyer’s license number and its expiration date. Her driver's license number was listed as beginning with an “M” followed by twelve digits, the last three of which were “829”. The expiration date of her license was noted as October 27, 1988.
On August 19, 1985, over one month after we upheld his conviction, United States v. Simon, 767 F.2d 420 (8th Cir.), cert. denied, 474 U.S. 863, 106 S.Ct. 179, 88 L.Ed.2d 148 (1985), Simon was given notice to voluntarily surrender to United States Marshals on September 10, 1985. However, Simon had other plans. On September 6, 1985, Simon and a female companion went to the post office. Simon applied for another passport in his deceased brother’s name. Simon listed his address as 1019 Main Street N.E., Minneapolis, a departure date of September 20,1985, and destination as Europe. An affidavit in Meyer’s name vouching for Simon’s identity was submitted with the passport application. The affiant stated that she had known “Sayed Simon” for five years. The affiant also listed the same address Meyer had provided in her August 15, 1985 affidavit, vouching for Yoshino’s identity.
Alan Rodeberg, a postal employee, processed the applications. He testified that the affidavit was completed and signed in his presence. Although he testified he could not identify the affiant, he did recall that she was younger than Simon. Meyer is approximately eighteen years younger than Simon. Rodeberg further testified that the affiant produced a driver’s license, whose number and expiration date he copied onto the affidavit. Although Rodeberg noted the expiration date as October 27, 1958, he testified that he had mistakenly copied the date of birth from the license. October 27, 1958 is in fact Meyer’s date of birth. The driver’s license number he wrote down began with an “N” and was followed by twelve digits, the last three of which were “828”.
On September 6, 1985, Simon and his younger female companion also went to an American Automobile Association (AAA) office to purchase six photographs for an international driving permit and passport. He also applied for international driving permits under his and Meyer’s names. After being shown Meyer’s international driving permit photograph, the AAA representative stated that it appeared to be a picture of the woman who was with Simon.
Simon failed to voluntarily turn himself in to the marshals on September 10, 1985 as ordered. Local authorities received information that Simon was in an apartment in Fridley, Minnesota. A search warrant was then obtained. Later that day, when officers entered the apartment, they found Simon, Meyer and the apartment’s resident. The police seized a large number of documents, including two letters, one from the Seattle Passport Agency addressed to Sayed Simon, dated September 10, 1985, and one written to the Seattle Passport Agency purporting to be from Sayed Simon, dated September 15, 1985; microfilm copies of school records for Sayed Simon from 1953; an application for a Minnesota driver’s license; international driving permits in the names of Meyer and Simon, issued on September 17, 1985; and passports issued to Simon on August 19, 1985 and to Meyer on August 16, 1985.
On April 9, 1986, Meyer was indicted on one count of making, and aiding and abetting the making of false statements in a passport application on September 6, 1985. On May 21, 1986, pursuant to the government’s request, the district court dismissed the indictment without prejudice to permit additional investigation to confirm the passport affiant’s identity. After the dismissal, the government obtained from Meyer handwriting exemplars and signatures made in the ordinary course of business. These signatures were analyzed by an expert and compared with the passport document at issue in this case. The expert testified that she was certain the signature on the document was Meyer’s and not a forgery.
On April 18, 1989, the grand jury returned another indictment charging Meyer with the same offense. After making her initial appearance on July 17, 1989, she was released on a $5,000 unsecured bond. Trial was originally scheduled for September 11, 1989, but did not commence until the following month. On August 31, 1989, Meyer filed a pro se motion for continuance charging her counsel with ineffective assistance, collusion with the government, and otherwise unethical behavior. Counsel subsequently filed a motion to withdraw. The court appointed new counsel on September 11, 1989, and granted Meyer’s motion for a continuance, setting a new trial date of October 10, 1989. On several occasions before trial, Meyer unsuccessfully moved to dismiss the indictment on speedy trial grounds. On October 12, 1989, the jury returned a verdict finding Meyer guilty. She filed a motion for judgment of acquittal, arguing that the evidence was insufficient to support the verdict. In the alternative, she sought a new trial arguing that her due process and speedy trial rights had been violated. On October 31, 1989, the district court denied both motions.
II.
A.
Meyer first argues that the nature of the government’s prosecution violated her sixth amendment right to a speedy trial. Meyer’s sixth amendment claim is based on the three-year delay between the date of the offense and the date of the trial. Her claim is without merit because it ignores the intervening dismissal of the first indictment. The original indictment was dismissed without prejudice only two months after it was returned. She was not reindicted until nearly three years later. This three-year period between the dismissal of that indictment and Meyer’s reindictment for the same offense does not implicate her sixth amendment right to a speedy trial because that guaranty is not operative after charges have been formally dismissed. See United States v. MacDonald, 456 U.S. 1, 9-10, 102 S.Ct. 1497, 1502-03, 71 L.Ed.2d 696 (1982) (no speedy trial violation when defendant indicted on civilian charges four years after dismissal of military charge for same crime); United States v. Wallace, 848 F.2d 1464, 1469 (9th Cir.1988) (period between dismissal of original indictment and reindictment reviewed by due process preaccusation standard because speedy trial right inapposite). Such a delay implicates only the due process clause. Id.; see infra at 1251-52. Therefore, we reject Meyer’s speedy trial claim.
If Meyer is to successfully allege a violation of her sixth amendment right to a speedy trial, she must focus on either the approximate two-month period from her arrest to the dismissal of the first indictment or on the approximate three-month period from her first appearance on the second indictment to her trial. Because, however, Meyer does not argue that either delay violated her constitutional right to a speedy trial, we need not reach that issue. Nevertheless, we do note, and Meyer concedes, that the government’s delay did not violate the terms of the Speedy Trial Act. It is “an unusual case” in which the sixth amendment has been violated when the Act’s time limits have been met. United States v. Thirion, 813 F.2d 146, 154 (8th Cir.1987).
B.
Meyer next argues that the delay of over three years in bringing her to trial violated her right to due process because the government was able to obtain an unfair tactical advantage. Although statutes of limitations are the primary safeguard against prejudicial preaccusation delay, Meyer may establish a due process violation based upon preaccusation delay by showing that it resulted in actual prejudice and was intentional and improperly motivated. United States v. Marion, 404 U.S. 307, 324, 92 S.Ct. 455, 465, 30 L.Ed.2d 468 (1971). To meet her heavy burden of establishing actual prejudice, she must prove that the preaccusation delay substantially prejudiced her defense. United States v. Scott, 795 F.2d 1245, 1249-50 (5th Cir.1986) (mere passage of time plus unsubstantiated assertions of memory failure and loss of witness insufficient to establish prejudice). Furthermore, Meyer must demonstrate that the government intentionally delayed either to gain a tactical advantage or to harass her. United States v. Lovasco, 431 U.S. 783, 789-90, 97 S.Ct. 2044, 2048-49, 52 L.Ed.2d 752 (1977); United States v. Carlson, 697 F.2d 231, 236 (8th Cir.1983).
Although we would normally first inquire into whether Meyer was actually prejudiced by the delay, we need not do so in this case because Meyer does not even allege, nor does the evidence even come close to demonstrating, that the government intentionally delayed with the purpose of harassing her or gaining a tactical advantage. The government dismissed the first indictment in order to permit additional investigation into the offender’s identity. Merely because the police did not come up with substantial additional information does not demonstrate that the police intentionally delayed for an improper purpose. We therefore reject Meyer’s due process challenge. See Lovasco, 431 U.S. at 789-90, 97 S.Ct. at 2048-49 (no due process violation when defendant alleged prejudice because government properly delayed prosecution to discover identities of other participants in theft, not for tactical advantage); Marion, 404 U.S. at 324-25, 92 S.Ct. at 465-66 (1971) (no due process violation when defendant failed to prove delay intended to gain tactical advantage or harass defendant); United States v. Sebetich, 776 F.2d 412, 430 (3d Cir.1985) (no due process violation although government had enough information for indictment two years before defendant indicted when delay due to confusion between state and federal authorities), cert. denied, 484 U.S. 1017, 108 S.Ct. 725, 98 L.Ed.2d 673 (1988).
C.
Meyer further argues that the district court abused its discretion when it denied her motion to dismiss the indictment based upon a violation of the Speedy Trial Act. The Act requires, inter alia, that a defendant’s trial commence within seventy days from the filing of the indictment, or from the date the defendant has first appeared before a judicial officer, whichever is later, subject to enumerated periods of excludable delays including a defendant’s request for a continuance. Meyer prudently concedes that the government, in pursuing her prosecution, did not violate the terms of the Act. Instead, she argues the government violated the spirit of the Act. We reject her argument as completely without merit. United States v. Leone, 823 F.2d 246, 248-49 (8th Cir.1987).
III.
Finally, Meyer argues that the government’s proof at trial was insufficient as a matter of law to establish her guilt beyond a reasonable doubt. We must affirm her conviction if, viewing the evidence in the light most favorable to the government, there is substantial evidence to support the jury’s verdict. United States v. Marin-Cifuentes, 866 F.2d 988, 992 (8th Cir.1989). In making this determination, we must give the government the benefit of all inferences that may reasonably be drawn from the evidence. Id. The evidence need not exclude every reasonable hypothesis of innocence, but simply be sufficient to convince the trier of fact beyond a reasonable doubt that the defendant is guilty. Id. We will not lightly overturn the jury’s finding of guilt. United States v. Knife, 592 F.2d 472, 475 (8th Cir.1979).
This is not even a close case. The evidence in support of Meyer’s conviction was overwhelming. She was Simon’s live-in girlfriend. She knew about his upcoming incarceration because she had attended his entire trial in 1984. On August 15, 1985, she and Simon applied for passports together for a trip to Europe. They planned to depart shortly before Simon was scheduled to turn himself in to the marshals. On that date, she completed an affidavit vouching for Yoshino’s identity. A few weeks later, Simon went to the passport office, accompanied by a woman younger than himself. Meyer is eighteen years younger than Simon. A handwriting expert testified that in her opinion the signature on the fraudulent affidavit was definitely Meyer’s. Furthermore, the birth date written on the affidavit was the same as Meyer’s, and the driver’s license number was identical with the exception of the first letter and last digit. Finally, after completing the passport application and corresponding affidavit at the post office, Simon, accompanied by the younger woman, went to an AAA office and applied for two international driving permits in both his and Meyer’s names. The AAA representative identified the woman in Meyer’s international driving permit photograph as the woman who was with Simon on that date. There was substantial evidence upon which the jury could reasonably have convicted Meyer.
IV.
As a preliminary matter, we wish to extend our thanks to Meyer’s court-appointed counsel for his exemplary representation of his client on appeal. Despite counsel’s outstanding efforts, however, we conclude that Meyer has not stated a violation of the Speedy Trial Act, her sixth amendment right to a speedy trial, or her fifth amendment right to due process. Furthermore, the evidence introduced at trial was sufficient as a matter of law to sustain her conviction. Accordingly, we affirm.
. The Honorable Diana E. Murphy, United States District Judge for the District of Minnesota.
. Sayed Simon died in 1954 from burns suffered as a result of a car accident.
. This is the same month and day noted on Meyer's August 15, 1985 affidavit. However, the year is different.
. This number is identical to the number written down on the August 15, 1985 application except for the first letter and last number. The remaining eleven digits were identical.
.Meyer was initially charged by complaint on March 28, 1986.
. Meyer's claim that the government violated the spirit of the Speedy Trial Act will be briefly discussed later. See infra at 1252.
. Meyer attempts to impugn the credibility of the handwriting witness on appeal. The jury presumably heard this attack but nonetheless found the witness to be credible.
. We further note that we have carefully and thoroughly considered the arguments made in Meyer’s pro se brief and find them to be without merit.
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:
|
sc_casedisposition
|
E
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed. The information relevant to this variable may be found near the end of the summary that begins on the title page of each case, or preferably at the very end of the opinion of the Court. For cases in which the Court granted a motion to dismiss, consider "petition denied or appeal dismissed". There is "no disposition" if the Court denied a motion to dismiss.
WILLIAMS v. CALIFORNIA et al.
No. 534, Misc.
Decided April 15, 1963.
Petitioner pro se.
Stanley Mosk, Attorney General of California, Doris H. Maier, Assistant Attorney General, and Raymond M. Momboisse, Deputy Attorney General, for respondents.
Per Curiam.
The motion for leave to proceed in forma pauperis and the petition for writ of certiorari are granted. The judgment is vacated and the case is remanded for further consideration in light of Douglas v. California, 372 U. S. 353.
Mr. Justice Clark and Mr. Justice Harlan dissent for the reasons stated in their opinions in Douglas v. California, 372 U. S., at 358, 360.
Question: What is the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed?
A. stay, petition, or motion granted
B. affirmed (includes modified)
C. reversed
D. reversed and remanded
E. vacated and remanded
F. affirmed and reversed (or vacated) in part
G. affirmed and reversed (or vacated) in part and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to or from a lower court
K. no disposition
Answer:
|
songer_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".
JONES v. BIDDLE, Atty. Gen.
No. 12334.
Circuit Court of Appeals, Eighth Circuit.
Dec. 14, 1942.
Joseph E. Jones, pro se.
Otto Schmid, Asst. U. S. Atty., of Kansas City, Mo. (Maurice M. Milligan, U. S. Atty., of Kansas City, Mo., on the brief), for appellee.
Before STONE, SANBORN, and RID-DICK, Circuit Judges.
SANBORN, Circuit Judge.
The appellant (who will be referred to as petitioner) filed an application .for a writ of habeas corpus in the court below, naming Hon. Francis Biddle, Attorney General of the United States, as respondent. Petitioner is confined in the United States Medical Center for Federal Prisoners at Springfield, Missouri. His application, in substance, asserts that he is being illegally restrained of his liberty, because the commutation of his sentence, to which he is entitled for good behavior, has been wrongfully denied, and that he became entitled to release on August 26, 1941.
The respondent (appellee) made a motion to dismiss the application upon the ground that the petitioner was not, and had not been, in the respondent’s custody. This motion was granted, and the application was dismissed.
The petitioner has appealed from the order dismissing his application. In his brief he offers no explanation or justification for naming the Attorney General as respondent.
The appellant is mistaken in believing that he is in the actual physical custody of the respondent and that the court below has jurisdiction to require the respondent, who is not within the territorial jurisdiction of the court, to produce the body of the petitioner. The statutes relating to habeas corpus manifestly contemplate that the respondent named in an application, for Habeas corpus shall be the person, within the territorial jurisdiction of the court, who has the physical custody of the person of the petitioner and who is capable of producing him in court. Wales v. Whitney, 114 U.S. 564, 574, 5 S.Ct. 1050, 29 L.Ed. 277; Sanders v. Allen, 69 App. D.C. 307, 100 F.2d 717, 718. The power of a district court to grant a writ of habeas corpus is limited to its territorial jurisdiction. 28 U.S.C.A. § 452; Ex parte Gouyet, D.C., 175 F. 230, 233; Sanders v. Allen, 69 App.D.C. 307, 100 F.2d 717. Compare, In re Boles, 8 Cir., 48 F. 75, 76. “The writ shall be directed to the person in whose custody the party is detained.” 28 U.S. C.A. § 455. There must be a prompt return to the writ (28 U.S.C.A. § 456), and the person making the return must produce the body of the petitioner before the judge who granted the writ. 28 U.S.C.A. § 458.
While the prisons of the United States and the custody of federal prisoners under sentence are generally under the supervision of the Attorney General (Ponzi v. Fessenden, 258 U.S. 254, 256, 262, 42 S. Ct. 309, 66 L.Ed. 607, 22 A.L.R. 879), the actual management of such prisons and the care of prisoners is delegated to the Bureau of Prisons. 18 U.S.C.A. § 753a. It is, no doubt, true that, in a sense, all federal prisoners under sentence are in the custody of the Attorney General, but it is apparent that his custody of them is supervisory and regulatory, and that he does not have actual physical custody of a prisoner who is confined in a federal prison or other federal institution. See Galatas v. United States, 8 Cir., 80 F.2d 15, 18, 19.
The petitioner should have named the Warden of the Medical Center as respondent and should have alleged in the application for a writ of habeas corpus that he (petitioner) was in the custody of the Warden of that institution. See 28 U.S. C.A. § 454.
The order appealed from is affirmed.
Question: What is the general issue in the case?
A. criminal
B. civil rights
C. First Amendment
D. due process
E. privacy
F. labor relations
G. economic activity and regulation
H. miscellaneous
Answer:
|
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