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What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the constitutionality of a law or administrative action, and if so, whether the resolution of the issue by the court favored the appellant.
GROCERY MANUFACTURERS OF AMERICA, INC., a Delaware Corporation, Plaintiff-Appellee Cross-Appellant, v. Joseph GERACE, Commissioner, New York Department of Agriculture and Markets, and the New York Department of Agriculture and Markets, Defendants-Appellants Cross-Appellees, John R. Block, as Secretary of Agriculture of the United States and the Department of Agriculture of the United States, Margaret M. Heckler, as Secretary of Health and Human Services of the United States, and the Department of Health and Human Services of the United States, Additional Defendants on Counterclaim-Appellees.
Nos. 177, 388, Dockets 84-6141, 84-6149.
United States Court of Appeals, Second Circuit.
Argued Sept. 26, 1984.
Decided Feb. 14, 1985.
Thomas G. Conway, N.Y., Dept, of Agriculture and Markets, Albany, N.Y. (Robert Abrams, Atty. Gen., of the State of N.Y., New York City, of counsel), for defendant-appellant cross-appellee New York Dept, of Agriculture and Markets.
Franklin H. Stone, Asst. U.S. Atty., S.D. of N.Y., New York City (Rudolph W. Giuliani, U.S. Atty. for the S.D. of N.Y., Jane E. Booth, Asst. U.S. Atty., S.D. of N.Y., Beverly Sherman Nash, U.S. Dept, of Justice, Frederick H. Degnan, Food and Drug Admin., Thomas D. Edmundson, U.S. Dept, of Agriculture, Washington, D.C., of counsel), for defendants on counterclaim-appel-lees Block and Heckler.
George M. Burditt, Chicago, 111. (Robert G. Epsteen, Burditt, Bowles & Radzius, Ltd., Chicago, 111., Sheldon Oliensis, Richard A. DeSevo, Kaye, Scholer, Fierman, Hays & Handler, New York City, of counsel), for plaintiff-appellee cross-appellant Grocery Mfrs. of America.
Before FRIENDLY, MESKILL and PIERCE, Circuit Judges.
MESKILL, Circuit Judge:
This is an appeal from a judgment entered in the United States District Court for the Southern District of New York, Duffy, J, granting the motion of plaintiff-appellee Grocery Manufacturers of America (GMA) for preliminary and permanent injunctive relief. The district court, in a decision reported at 581 F.Supp. 658 (S.D. N.Y.1984), enjoined the enforcement of N.Y.Agric. & Mkts.Law § 63 (section 63), which it found invalid on federal preemption and Commerce Clause grounds.
We affirm in part and reverse in part.
Background
This litigation involves state and federal regulatory schemes that require descriptive labeling of cheese alternatives: products composed wholly or partly of food that looks, smells and tastes like cheese, but is not, in fact, cheese. The major focus of the dispute concerns the use and meaning of the modifier “imitation” as applied to these products. A brief discussion of cheese-making is in order.
Real cheese is made from milk with its milkfat content intact. Cheese alternatives may be made in two ways. One method begins with either milk from which the milkfat has been removed or casein, natural milk protein extracted from milk. The altered milk or casein is then combined with vegetable oil, which substitutes for milkfat. This type of alternative cheese is lower in calories and cholesterol than real cheese. It sells at prices fifty to sixty percent lower than real cheese. The other type of alternative cheese is chemically similar to real cheese but is made wholly or in part with substitute dairy products. This is presumably even less expensive to manufacture than the former. Vitamins and minerals may be added to raise the nutritional level of alternative cheese. Record of Administrative Rulemaking Proceedings in the Adoption of Imitation Cheese Labeling Regulations (before the New York Department of Agriculture and Markets), Record Doc. # 6 at 152-60.
Alleging that New York’s imitation cheese law was in conflict with federal labeling requirements and with the Commerce Clause, GMA commenced this litigation with a complaint requesting injunctive and declarative relief against defendants-appellants New York Department of Agriculture and Markets and the department’s Commissioner, Joseph Gerace (collectively New York). New York counterclaimed and included as additional defendants the United States Department of Agriculture (USDA); the United States Department of Health and Human Services (HHS), the bureaucratic parent of the Food and Drug Administration (FDA); and the respective department secretaries. The counterclaim sought to have 21 C.F.R. § 101.3 (1984), the federal regulation that defines the term “imitation” for purposes of food package labeling, declared invalid.
The text of New York’s section 63, enacted in 1982, is set out in the margin. 23Brief-ly, it requires that alternative cheese products feature labels that display prominently the descriptive term “imitation.” It also directs that anyone who sells prepared foods containing cheese alternatives, whether for carry out or for consumption on the premises, must display a sign that discloses in three inch letters those foods that contain “imitation cheese.” Further, it provides that restaurant menus must append the words “contains imitation cheese” to the item designation of any offering containing alternative cheese. And, finally, alternative cheese products available for use by customers on the premises — as, for example, something resembling grated par-mesan — must be conspicuously labeled as “imitation cheese.”
Section 63 does not define imitation. The regulations promulgated pursuant to the statute define “imitation cheese” as any food simulating “cheese” as described or standardized by regulation but failing to meet that description or standard. N.Y. Admin.Code tit. 1, § 18.1(c). Neither the statute nor any of its regulations is concerned with nutritional values.
The federal scheme implicated here, which establishes the requisite information content of package labels for foods shipped in interstate commerce, involves three federal statutes and two federal agencies. Food labeling generally is governed on the federal level by the Federal Food, Drug, and Cosmetic Act (FDCA), 21 U.S.C. § 301 et seq. (1982), and its regulations, which come under the administrative aegis of the FDA. The FDCA does not contain any express preemption language.
The labeling of meat and poultry products shipped in interstate commerce is specifically controlled by the Federal Meat Inspection Act (FMIA), 21 U.S.C. § 601 et seq. (1982), and the Poultry Products Inspection Act (PPIA), 21 U.S.C. § 451 et seq. (1982), and their respective regulations, 9 C.F.R. § 317 et seq. (1984). The FMIA and the PPIA are administered by the USDA. Both statutes contain substantially identical preemption language which permits some concurrent state enforcement but prohibits state “[m]arking, labeling, packaging, or ingredient requirements in addition to, or different than, those” mandated by federal law. 21-U.S.C. § 678 (FMIA); see also 21 U.S.C. § 467e (PPIA).
The FDCA specifically prohibits, among other things, misbranded foods. Under the FDCA, a food is misbranded if it is sold under the name of any other food, 21 U.S.C. § 343(b), or if it purports to be a food, such as cheese, for which a standard of identity has been prescribed by regulation and it does not conform exactly to that standard, 21 U.S.C. § 343(g). In addition, a food that “is an imitation of another food” is misbranded unless its label contains the word “imitation” in prominent letters immediately preceding the name of the food imitated. 21 U.S.C. § 343(c).
The FDCA does not define imitation; that task was accomplished by regulation in 1973. An imitation food is defined as a food which “is a substitute for and resembles another food but is nutritionally inferi- or to that food.” 21 C.F.R. § 101.3(e)(1). Nutritional inferiority is determined by comparing the percentages of so-called “essential nutrients” in the substitute to those in the food for which it substitutes. 21 C.F.R. § 101.3(e)(4). The essential nutrients are protein and the nineteen vitamins and minerals for which the federal government has established recommended daily allowances (U.S. RDAs). Id.; § 101.-9(c)(7)(iv). Basically, if the substitute contains less of any essential nutrient present to a measurable degree in the food substituted for, the substitute must be labeled with the word “imitation.”
A nutritionally equivalent or superior substitute food would be misbranded under federal law if it was labeled with the term “imitation.” Such foods must be identified by an appropriate common or usual name or, if none exists, a descriptive term. The fact that such foods are substitute foods would thus be evident from the foods’ labels, albeit less so than if the word “imitation” was used.
The FMIA and the PPIA contain mis-branding provisions essentially identical to the FDCA’s. Compare 21 U.S.C. § 453(h) (PPIA) and § 601(n) (FMIA) with 21 U.S.C. § 343 (FDCA). Unlike the FDCA, both the PPIA and the FMIA, to prevent misbrand-ing, require that all proposed labels be reviewed and approved by USDA agents prior to use. 21 U.S.C. § 457(c) & (d) (PPIA); § 607(d) & (e) (FMIA). Neither the text of nor the regulations under either the FMIA or the PPIA define imitation. However, the USDA avers that it has adopted the FDA’s definition.
Thus federal labeling requirements for alternative cheese products and for meat and poultry products containing cheese alternatives are uniform. If the product is nutritionally inferior to the food it resembles, it must be labeled “imitation.” If, however, it is nutritionally equivalent or superior to its model, it would be misbrand-ed if it was labeled “imitation.”
In the court below, the parties agreed and the district judge found that there were no unresolved material issues of fact. 581 F.Supp. at 661. The judge therefore deemed summary judgment as to GMA’s motion for preliminary and permanent in-junctive relief appropriate. Id. Accordingly, the court held that New York’s labeling requirements as applied to alternative cheese were preempted by the FDCA because the federal requirements, as applied in compliance with the FDA’s definition of imitation, and the state requirements were in actual conflict. Further, it held that the state labeling requirements as applied to meat and poultry products containing alternative cheese were preempted by the FMIA and the PPIA because the USDA’s adoption of the FDA’s definition of imitation created actual conflict between the state and federal schemes and, also, because of the express preemption language in the federal statutes. Finally, the district court held that the sign, menu and container provisions were invalid because they placed an undue burden on interstate commerce in violation of the Commerce Clause.
On appeal, New York challenges all three of the district court’s conclusions. It argues that the state labeling provisions are not preempted by the FDCA because the federal regulation defining imitation violates the meaning and purpose of the FDCA and is therefore invalid. Invalidation of the regulation, of course, would vitiate the actual conflict between the state and federal schemes. New York also maintains that even if the definition is valid under the FDCA, the USDA’s adoption of the definition was procedurally defective. Thus, New York reasons, the state statute is not in conflict with either the FMIA or the PPIA. Further, New York claims that the requirements of the state statute fall outside the reach of the preemption provisions of the FMIA and the PPIA. And finally, New York contends that the sign, menu and container provisions do not violate the Commerce Clause.
Discussion
I. Federal Preemption
A. Generally
The preemption doctrine is rooted in the Supremacy Clause of the United States Constitution, Art. VI, cl. 2. Its application compels judicial divination of congressional intent. Preemption is mandated in two general contexts: when a state legislates in a field that Congress intended to occupy totally and when the state and federal laws actually conflict.
Any state law intruding upon an area that Congress intended to control exclusively is preempted, “whether Congress’ command is explicitly stated in the statute’s language or implicitly contained in its structure and purpose.” Jones v. Rath Packing Co., 430 U.S. 519, 525, 97 S.Ct. 1305, 1309, 51 L.Ed.2d 604 (1977). Absent explicit preemption language, congressional intent to occupy the field regulated may nevertheless be inferred on the basis of the pervasiveness of the federal scheme, the dominance of the federal interest involved or because the federal statute in combination with the nature of its directives reveals the purpose to preclude state action. Fidelity Federal Savings & Loan Association v. de la Cuesta, 458 U.S. 141, 153, 102 S.Ct. 3014, 3022, 73 L.Ed.2d 664 (1982); Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947).
“Even where Congress has not entirely displaced state regulation in a specific area, state law is pre-empted to the extent that it actually conflicts with federal law.” Pacific Gas & Electric Co. v. State Energy Resources Conservation & Development Commission, 461 U.S. 190, 204, 103 S.Ct. 1713, 1722, 75 L.Ed.2d 752 (1983). An actual conflict exists “when it is impossible to comply with both state and federal law, Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-143 [83 S.Ct. 1210, 1217, 10 L.Ed.2d 248] (1963), or where the state law stands as an obstacle to the accomplishment of the full purposes and objectives of Congress, Hines v. Davi-dowitz, 312 U.S. 52, 67 [61 S.Ct. 399, 404, 85 L.Ed. 581] (1941).” Silkwood v. Kerr-McGee Corp., — U.S.-,-, 104 S.Ct. 615, 621, 78 L.Ed.2d 443 (1984).
Moreover, preemption is compelled not only when the conflict involves a federal statute, but also when it involves valid federal regulations. Provided that they are reasonable exercises of an agency’s duly authorized discretion and not in conflict with congressional intent, United States v. Shimer, 367 U.S. 374, 381-82, 81 S.Ct. 1554, 1559-60, 6 L.Ed.2d 908 (1961), “[f]ederal regulations have no less preemptive effect than federal statutes.” Fidelity Federal Savings & Loan, 458 U.S. at 153, 102 S.Ct. at 3022; accord Blum v. Bacon, 457 U.S. 132, 145-46, 102 S.Ct. 2355, 2363-64, 72 L.Ed.2d 728 (1982).
B. The FDCA
The preemptive effect of the FDCA depends entirely on whether the FDA’s definition of imitation is valid and therefore entitled to our deference. Characterizing 21 C.F.R. § 101.3(e) as an attempt to administratively amend the FDCA, New York argues that we should disregard the regulation and give the word imitation its ordinary meaning.
New York’s challenge to the FDA regulation is grounded in the language, legislative history and, most particularly, the pre-1973 (i.e., prior to the promulgation of 21 C.F.R. § 101.3(e)) judicial construction of the FDCA and its predecessor statutes. The fulcrum of the state’s argument is the United States Supreme Court decision in 62 Cases of Jam v. United States, 340 U.S. 593, 71 S.Ct. 515, 95 L.Ed. 566 (1951). That litigation involved a product labeled “Delicious Brand Imitation Jam” which the government claimed was misbranded because it resembled fruit jam but contained less than the federally standardized amount of fruit. The controversy actually involved a perceived conflict between the FDCA subsection deeming a food mis-branded if it substituted for and resembled another food but was not labeled “imitation” and the subsection deeming a food misbranded if it purported to be a food that had been standardized by regulation. In concluding that the product purported to be not fruit jam but imitation jam and, therefore, that it was not misbranded, the Court reasoned that “the ordinary meaning of the statute” should control. 340 U.S. at 600, 71 S.Ct. at 520.
The 62 Cases of Jam Court discussed and distinguished an earlier Supreme Court case relied on by New York and also decided under the FDCA, Federal Security Administrator v. Quaker Oats Co., 318 U.S. 218, 63 S.Ct. 589, 87 L.Ed. 724 (1943). 62 Cases of Jam, 340 U.S. at 598-99, 71 S.Ct. at 519. In upholding the government’s contention that a food was misbranded even though its label disclosed the presence of a nondeleterious substance that was not a standard ingredient, the Quaker Oats Court explained that the purposes of the FDCA went beyond mere prohibition of false and misleading labeling. Such prohibition alone could not
protect the consumer from “economic adulteration,” by which less expensive ingredients were substituted, or the proportion of more expensive ingredients diminished, so as to make the product, although not in itself deleterious, inferior to that which the consumer expected to receive when purchasing a product with the name under which it was sold.
318 U.S. at 230, 63 S.Ct. at 596. To guard the integrity of food products, the act authorized promulgation of standards of identity, requiring “informative labeling only where no such standard had been promulgated, where the food did not purport to comply with a standard, or where the regulations permitted optional ingredients and required their mention on the label.” Id.
New York also refers us to United States v. 651 Cases, More or Less, of Chocolate Chil-Zert, 114 F.Supp. 430 (N.D.N.Y. 1953) (Chil-Zert), which, drawing on the Supreme Court precedents, attempted to flesh out the judicial definition of imitation. “The word connotes inferiority in the sense that [the product] is cheapened by the substitution of ingredients[;]” the result is “something less than the genuine article.” Id. at 432 (citations omitted).
New York correctly notes that the FDA’s regulatory definition of imitation is at odds with the judicial gloss placed on the term. Consequently, the state avers, we should disregard the definition and follow the reasoning of Swift & Co. v. Walkley, 369 F.Supp. 1198 (S.D.N.Y.1973), decided under the FMIA. The Swift Court acknowledged that the USDA, in approving a label for a frankfurter-like product that did not contain the word “imitation,” had relied on the findings of the White House Conference on Food, Nutrition and Health Final Report 120 (1969), J.App. at 139 (White House Report), particularly that “[consumers are reluctant to purchase products labelled ‘imitation’ even though the products are very good and highly nutritious.” 369 F.Supp. at 1200 (quoting USDA official’s affidavit). Nevertheless, the court rejected the USDA’s position and upheld the state’s ban on the sale of the product because, lacking the modifying “imitation frankfurters,” the product was misbrand-ed.
If we were addressing the validity of the FDA regulation in or about 1973, the year of its promulgation, we might be inclined to reject it. But the regulation has been in effect for eleven years. Congress’ failure during this period to alter the relevant statutory language or to otherwise condemn the regulatory definition, while not a fail-safe guide, allows us at least to infer that it has acquiesced in the FDA’s construction. See, e.g., Haig v. Agee, 453 U.S. 280, 300, 101 S.Ct. 2766, 2778, 69 L.Ed.2d 640 (1981); United States v. Rutherford, 442 U.S. 544, 554 & n. 10, 99 S.Ct. 2470, 2470 & n. 10, 61 L.Ed.2d 68 (1979); Zemel v. Rusk, 381 U.S. 1, 11, 85 S.Ct. 1271, 1278, 14 L.Ed.2d 179 (1965); Norwegian Nitrogen Products Co. v. United States, 288 U.S. 294, 313, 53 S.Ct. 350, 357, 77 L.Ed. 796 (1933); Costanzo v. Tillinghast, 287 U.S. 341, 345, 53 S.Ct. 152, 153, 77 L.Ed. 350 (1932); but see SEC v. Sloan, 436 U.S. 103, 119-21, 98 S.Ct. 1702, 1712-13, 56 L.Ed.2d 148 (1978). Moreover, the two courts of appeals that have considered the regulation have upheld its validity. National Milk Producers Federation v. Harris, 653 F.2d 339 (8th Cir.1981); Federation of Homemakers v. Schmidt, 539 F.2d 740 (D.C.Cir. 1976).
We could scarcely improve on the D.C. Circuit’s perspicacious decision in Federation of Homemakers sustaining the FDA’s definition against a challenge brought by a national consumer group. Addressing arguments similar to those raised by New York, the court explained that the earlier and undeniably reasonable judicial construction of imitation did not “prevent the promulgation of an equally reasonable definition by the agency charged with administering the [FDCA].” 539 F.2d at 743. We concur with that court; “our deference to the enforcing agency’s interpretation limits our review to determining only whether the regulation violates the language of the statute or is arbitrary and capricious.” Id. The FDA’s regulation furthers the twin goals of “better informing consumers so that they may exercise a knowledgeable choice of differing foods within general categories” and “encouraging manufacture of nutritional food products;” it is both reasonable and within the ambit of the agency’s discretion. Id. at 744; accord White House Report at 120, J.App. at 139.
Unless contrary to the indications of the statute itself, see SEC v. Sloan, 436 U.S. at 117-19, 98 S.Ct. at 1711-12, the construction and application of a statute by the agency charged with its administration is entitled to substantial deference. Blum v. Bacon, 457 U.S. at 141, 102 S.Ct. at 2361; United States v. Rutherford, 442 U.S. at 553, 99 S.Ct. at 2475; Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965). The FDA’s definition of imitation is entitled to our deference.
Thus, as applied to alternative cheese, the New York labeling scheme is in direct conflict with its federal counterpart. Including the term “imitation” on the label of a nutritionally superior alternative cheese in order to comply with New York law, would render the product misbranded under federal law. Compliance with both the state and federal requirements is impossible. To the extent that it attempts to regulate the labeling of alternative cheese, the New York law is preempted.
C. The FMIA and the PPIA
Whether the New York law as applied to meat and poultry products that contain alternative cheese is also preempted requires us to determine whether the reach of the preemption provisions of the FMIA and the PPIA extends to the New York labeling requirements. This inquiry requires us to decide, also, whether the USDA’s adoption of the FDA’s regulatory definition of imitation was valid.
New York argues that the adoption was improper because it was not in accordance with the rulemaking provisions of the Administrative Procedure Act, 5 U.S.C. § 551 et seq. (1982). The district court determined, and the federal parties agree, “that the USDA’s imitation food policy is more akin to a statement of general policy or an interpretive rule than to a rule which requires formal notice and comment proceedings.” 581 F.Supp. at 665. The federal agencies also claim that the USDA’s action could be correctly characterized as an express adoption of a standing policy through adjudication.
It is well established that an agency may adopt prospective rules of general effect through either rulemaking or adjudication; the choice of method rests within the discretion of the agency. E.g., NAACP v. FPC, 425 U.S. 662, 668, 96 S.Ct. 1806, 1810, 48 L.Ed.2d 284 (1976); NLRB v. Bell Aerospace Co., 416 U.S. 267, 290-95, 94 S.Ct. 1757, 1769-72, 40 L.Ed.2d 134 (1974); SEC v. Chenery Corp., 332 U.S. 194, 202-03, 67 S.Ct. 1575, 1580, 91 L.Ed. 1995 (1947); New York State Commission on Cable Television v. FCC, 669 F.2d 58, 62 n. 9 (2d Cir.1982). In support of its claim of adoption through adjudication, the USDA cites In re Castleberry’s Food Co., 40 Agrie. Dec. 1262 (1981), a USDA adjudicative proceeding under the FMIA, which expressly adopted what it identified as agency practice: use of the FDA definition of imitation in the case-by-case approval of food labels. Id. at 1277-78. Indeed, as the court in Swift & Co. v. Walkley, 369 F.Supp. at 1200, indicated, the agency had begun narrowing the application of the term “imitation” as early as 1970, just after the issuance of the White House Report. Moreover, formal notice and comment rulemaking procedures concerning the practice were initiated on or about August 5, 1983. 48 Fed.Reg. 35,654 (1983). The initiating notice explained that
[t]he proposed disclosure requirement for substitute and imitation cheese ingredients would not affect current requirements for “imitation” labeling. Thus, for example, in addition to the disclosure statement concerning its cheese content, any standardized meat product whose required ingredients include “cheese” would still be required to bear “imitation” labeling, if the use of imitation cheese caused the product to be nutritionally inferior to the standardized product.
Id. at 35,658.
Even if it should be classified as an interpretive rule or a statement of general policy, rather than as a formal rule adopted via adjudication, the USDA’s practice of following the FDA definition of imitation when reviewing meat and poultry product labels is valid. The distinctions between formal rules and interpretive rules or general statements of policy are often vague. Noel v. Chapman, 508 F.2d 1023, 1029-30 (2d Cir.), cert. denied, 423 U.S. 824, 96 S.Ct. 37, 46 L.Ed.2d 40 (1975); Pacific Gas & Electric Co. v. FPC, 506 F.2d 33, 37-40 (D.C.Cir.1974). But we need not explore the nuances. If the USDA’s practice is merely interpretive, it is a reasonable interpretation and therefore entitled to judicial respect. Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 566, 100 S.Ct. 790, 797, 63 L.Ed.2d 22 (1980); National Nutritional Foods Association v. Weinberger, 512 F.2d 688, 696 (2d Cir.), cert. denied, 423 U.S. 827, 96 S.Ct. 44, 46 L.Ed.2d 44 (1975). And, while we recognize that we are not bound by interpretive rules, American Postal Workers Union v. United States Postal Service, 707 F.2d 548, 560 (D.C.Cir.1983), cert. denied, — U.S.-, 104 S.Ct. 1594, 80 L.Ed.2d 126 (1984); Board of Education v. Harris, 622 F.2d 599, 612-13 (2d Cir.1979), cert. denied, 449 U.S. 1124, 101 S.Ct. 940, 67 L.Ed.2d 110 (1981) , we discern no reason to reject the USDA’s longstanding interpretation of the FMIA and PPIA misbranding provisions. Cf. United States v. Clark, 454 U.S. 555, 565, 102 S.Ct. 805, 811, 70 L.Ed.2d 768 (1982) (“Although not determinative, the construction of a statute by those charged with its administration is entitled to great deference, particularly when that interpretation has been followed consistently over a long period of time.”). Consequently, the New York requirements are “different from” the federal requirements, as administered, and they are therefore preempted.
Notwithstanding the conflict created by its use of “imitation,” the New York law imposes other labeling requirements that are “in addition to[ ] or different than” the federal requirements. The preemption language of the. FMIA, essentially identical to that in the PPIA, was addressed by the Supreme Court in Jones v. Rath Packing Co., 430 U.S. at 528-32, 97 S.Ct. at 1311-13. The Court had before it the federal and California standards of accuracy for net weight labeling. California’s inspection sampling technique implicitly permitted the inevitable slight deviations resulting from the manufacturing process. But it did not allow for weight loss “resulting from moisture loss during the course of good distribution practice.” Id. at 531, 97 S.Ct. at 1312. In contrast, the USDA had interpreted the FMIA to permit reasonable variations, including such moisture loss. Id. at 529, 97 S.Ct. at 1311. Thus, the Court held that the California regulations were explicitly preempted by the FMIA. Id. at 532, 97 S.Ct. at 1313.
Analogously, New York’s section 63 mandates the precise size of the letters in and relative location of the word “imitation” on package labels. These requirements do not comport exactly with the federal specifications. Therefore, the state requirements are preempted.
II. Commerce Clause
Our preemption holdings make it unnecessary for us to determine whether the New York labeling provisions are invalid under the Commerce Clause as well. Accordingly, we direct our Commerce Clause analysis only to the New York sign, menu and container provisions, subsections 3, 4 and 5 of section 63.
The Supreme Court has mapped our course quite clearly:
Where [a state] statute regulates evenhandedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. Huron Cement Co. v. Detroit, 362 U.S. 440, 443 [80 S.Ct. 813, 815, 4 L.Ed.2d 852], If a legitimate local purpose is found, then the question becomes one of degree. And the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities.
Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 847, 25 L.Ed.2d 174 (1970).
The district court correctly determined that the New York law regulates evenhandedly. 581 F.Supp. at 670. The state requirements do not distinguish between alternative cheese products from in-state manufacturers and those from out-of-state manufacturers. And, to the extent that they indirectly advantage the dairy industry, that effect is not necessarily limited to in-state dairy producers.
Further, the local interest which the New York scheme
Question: Did the court's conclusion about the constitutionality of a law or administrative action favor the appellant?
A. Issue not discussed
B. The issue was discussed in the opinion and the resolution of the issue by the court favored the respondent
C. The issue was discussed in the opinion and the resolution of the issue by the court favored the appellant
D. The resolution of the issue had mixed results for the appellant and respondent
Answer:
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songer_respond1_3_3
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B
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "other agency, beginning with "A" thru "E"". Your task is to determine which specific federal government agency best describes this litigant.
AMERICAN AIRLINES, INC., Petitioner, and Allied Pilots Association, Intervenor-Petitioner, v. CIVIL AERONAUTICS BOARD, Respondent, and Master Executive Council of the Pilots of Trans Caribbean Airways, Intervenor-Respondent.
No. 1083, Docket 71-1610.
United States Court of Appeals, Second Circuit.
Argued July 14, 1971.
Decided July 23, 1971.
Joseph Barbash, Debevoise, Plimpton, Lyons & Gates, New York City (Gene E. Overbeck, New York City, of counsel), for petitioner.
Martin C. Seham, Surrey, Karasik, Greene & Seham, New York City (Fred C. Klein, New York City, of counsel), for intervenor-petitioner.
O. D. Ozment, Deputy Gen. Counsel (Richard W. McLaren, Asst. Atty. Gen., Howard E. Shapiro, Atty., Dept. of Justice, R. Tenney Johnson, Gen. Counsel, Warren L. Sharfman, Associate Gen. Counsel, Litigation and Research, Robert L. Toomey and Alan R. Demby, Attys., C.A.B., of counsel), for respondent.
Ronald B. Natalie, Verner, Liipfert, Bernhard & McPherson, Washington, D. C. (James M. Verner, John H. Wanner, Harry C. McPherson, Washington, D. C., of counsel), for intervenor-re-spondent.
Before FRIENDLY, Chief Judge, and LUMBARD and OAKES, Circuit Judges.
FRIENDLY, Chief Judge:
Every airline merger presents difficult human and financial problems of the relative privileges of the employees of the two carriers. Knowing that such problems would arise in the merger of Trans Caribbean Airways, Inc., (TCA) into American Airlines, Inc., which, indeed, had already been aired at the hearings, the Civil Aeronautics Board in its order of approval, effective December 31, 1970, announced that it would impose the labor protective provisions adopted in the United-Capital Merger Case, 33 CAB 307 (1961), which it had uniformly applied in every subsequent merger and route transfer case. Among these conditions, 33 CAB at 342-47, were the following:
Section 3. Insofar as the merger affects the seniority rights of the carriers’ employees, provisions shall be made for the integration of seniority lists in a fair and equitable manner, including, where applicable, agreement through collective bargaining between the carriers and the representatives of the employees affected. In the event of failure to agree, the dispute may be submitted by either party for adjustment in accordance with section 13.
******
Section 13. In the event that any dispute or controversy (except as to matters arising under sec. 9) arises with respect to the protection provided herein, which cannot be settled by the carrier and the employee, or his authorized representative, within 30 days after the controversy arises, it may be referred, by either party, to an arbitration committee for consideration and determination, the formation of which committee, its duties, procedure, expenses, etc., shall be agreed upon by the carriers and the employees, or the duly authorized representatives of the employees.
The merger was consummated on March 8, 1971.
Prior to that date the Master Executive Council of the pilots of TCA (TOA-ME C) filed a petition asking the Board to direct American, Allied Pilots Association (APA) (the bargaining agent for American’s pilots), and itself to submit the integration of the pilot seniority list to final and binding arbitration. Answers were filed by American, APA, and the Flight Engineers International Association (FEIA) representing American’s flight engineers. Later submissions revealed that on February 4, 1971, American and APA had entered into a memorandum of understanding on seniority list integration, which provided for signature on behalf of the TCA pilots but had not been signed by them. The TCA pilots considered unacceptable certain aspects of the proposed integration of the pilots still in service on a date-of-hire basis and, even more so, a provision with respect to the recall of furloughed pilots on the basis of “last furloughed, first recalled.” TCA-MEC claimed that the practical effect of the latter provision would be that all American’s pilots furloughed as of the date of the merger would be recalled before any of TCA’s furloughed pilots. It contended also that the proposed method of integration was simply an adoption by American of proposals made by APA and that the latter had “resolutely refused to adopt any procedures leading to a fixed period of negotiation, to be followed by arbitration failing a negotiated settlement.” APA and American opposed the petition, asserting that integration had already been accomplished “on a fair and equitable basis.” In an order dated May 7, 1971, the Board noted its “long standing policy” that matters encompassed in labor protective conditions of a merger “should be resolved by voluntary agreement between the carrier and the labor groups or employees involved, or, failing agreement, by arbitration”; judicial recognition “that the Board lacks expertise in labor matters and that seniority is basically a matter for negotiation or arbitration,” see Outland v. CAB, 109 U.S.App.D.C. 90, 284 F.2d 224, 228 (1960) (Burger, J.); and other judicial statements that, under the Interstate Commerce Commission’s labor protective provisions similar to those here imposed, either party has “ ‘the absolute right to select arbitration as a means for settling the dispute and when such selection [is] made then arbitration [is] mandatory upon the other party,’ ” quoting from New Orleans & N. E. Ry. v. Bozeman, 312 F.2d 264, 267 (5 Cir. 1963); Brotherhood of Locomotive Engineers v. Chicago & Nw. Ry., 314 F.2d 424, 433 (8 Cir.), cert. denied, 375 U.S. 819, 84 S.Ct. 55, 11 L.Ed.2d 53 (1963)’. Accordingly, it directed “[t]hat American shall within 30 days submit all pending disputes with respect to the seniority list integration of the American and TCA pilots and flight engineers to a neutral arbitrator or committee of arbitrators.”
On May 28, 1971, American filed with the Board a petition for reconsideration. It annexed to this a letter from APA advising American of the union’s position that no arbitration could change or vary the agreements already reached between American and APA and asking American to “[b]e assured that the pilots in the employ of American Airlines, as represented by the Allied Pilots Association, will use every means available to protect and insure the Company’s compliance with our Collective Bargaining Agreement.” Pointing to the dangers of labor strife implicit in the APA letter and alleging various difficulties in proceeding with the arbitration in the face of APA’s announced refusal to participate, American asked that the Board “appoint a hearing examiner to determine whether the Memorandum of Understanding dated February 4, 1971 between American and the Allied Pilots Association provides a fair and equitable method of seniority integration and, if not, to prescribe the manner in which disputes concerning the method of integration should be resolved.” In support of this proposal, it cited the Board’s attempt to resolve a seniority dispute by itself establishing a list in the North Atlantic Route Transfer Case, 12 CAB 422 (1951), aff’d sub nom. Kent v. CAB, 204 F.2d 263 (2 Cir.), cert. denied, 346 U.S. 826, 74 S.Ct. 46, 98 L.Ed. 351 (1953).
TCA-MEC responded that while it saw no reason justifying reconsideration, “as still another good faith effort at accommodating the dispute, it had no objection to the appointment of a hearing examiner for the same purpose as in the Kent case — namely, the creation of an integrated seniority list.” On the other hand, it vigorously objected to proceeding as American had proposed, namely, first considering whether the arrangement already worked out between American and APA was fair and equitable and, if and only to the extent that this was decided in the negative, prescribing still further procedures for resolving remaining issues.
APA also filed an answer which was labeled as in “support” of American’s petition for reconsideration. It conceded the Board’s power to determine whether the existing arrangement was “fair and equitable,” but challenged the Board’s authority to permit an arbitrator to order a departure from an agreement between a surviving carrier and the collective bargaining representative of its employees, and was conspicuously silent on whether the Board itself could do this — as distinguished from merely directing the dominant carrier and its union to try again.
On June 11, 1971, the Board denied reconsideration. It reiterated that it did “not consider it appropriate to entertain this dispute beyond directing compliance with the labor protective conditions imposed as a condition to our approval of the merger.” It found “no basis for assuming that the legal effect of an integration of the seniority lists by arbitration would be any different from that which would result from integration by the Board after what would undoubtedly be protracted evidentiary and other proceedings.” Further, while the Board expressed the “hope” that APA would take part in the arbitration proceeding, it concluded that “[i]f [APA] chooses not to do so, and the decision of the arbitral tribunal should be considered by it to be adverse to its interests, it would have no basis for complaint.” Also, it rejected American’s claims with respect to the difficulties of the arbitration, and emphasized that the question was not whether the American-APA plan fell within the range of what was “fair and equitable” but rather, since full agreement had not been reached, what plan of integration the arbitral tribunal determined to be most appropriate. It directed American to proceed to arbitration within ten days. American promptly filed this petition to review. Upon its representation that the Board was steering a collision course which entailed a serious risk of a strike on a major air carrier, we granted a stay, conditioned on an expedited appeal —a procedure which we are being compelled to employ with alarming frequency.
At first blush it would seem indeed, as it did to the panel that granted the stay, that for an administrative agency to decline to follow a procedure, admittedly fair and within its power, which was affirmatively urged by a carrier, reluctantly acquiesced in by the labor organization that might have been expected to object, and not opposed by its rival, was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordanee with law.” 5 U.S.C. § 706(2) (A). However, that would be too much of a keyhole view. Congress has vested the Board with the power to approve airline mergers “upon such terms and conditions as it shall find to be just and reasonable * * 49 U.S.C. § 1378 (b). The broad scope of a similar provision in the Interstate Commerce Act was recognized by the Supreme Court many years ago. United States v. Lowden, 308 U.S. 225, 60 S.Ct. 248, 84 L.Ed. 208 (1939). If the Board’s experience convinced it that the integration of seniority lists of employees of merging carriers was a function which it was not well suited to perform and which, in the absence of agreement, had best be left to arbitration, that was a judgment it was competent to make. The Board, like other agencies, operates on a limited budget, both of money and of time; it may properly decide that these scarce resources should be husbanded for the tasks for which it considers itself to be expert, rather than frittered away in an area more suitable for an experienced labor arbitrator. It is no matter that the policy announced in the United-Capital case represented a change from the course pursued in the North Atlantic Route Transfer case. As Judge Prettyman so wisely said, an agency’s “view of what is best in the public interest may change from time to time. Commissions themselves change, underlying philosophies differ, and experience often dictates changes.” Pinellas Broadcasting Co. v. FCC, 97 U.S.App.D.C. 236, 230 F.2d 204, 206 (D.C. Cir.), cert. denied, 350 U.S. 1007, 76 S.Ct. 650, 100 L.Ed. 869 (1956). It is far too late after the many decisions, including the two cited by the Board, that have recognized the validity of arbitrators’ decisions on seniority issues under the standard protective provisions imposed both by the Board and by the I.C.C., to argue successfully that prescribing an arbitration procedure for integrating seniority lists if negotiation fails is a delegation outlawed by 5 U.S.C. § 555(b). In any event, the time for challenging the legality of that provision in the order of December 31, 1970, had expired before the filing of this action. 49 U.S.C. § 1486(a).
Once the Board had made the determination that arbitration was the appropriate method of integrating seniority lists in cases in which the parties could not reach an agreement by negotiation, it was for it to decide, within the range of reason, whether the circumstances of this case dictated an exception to the general rule. Surely it was not irrational for the Board to rule that the dissatisfaction of and threats by an intransigent union and the acquiescence of a fearful employer were not a sufficient ground. To yield in one such case would be to invite repetition and thereby undermine a policy the Board had a right to establish. Moreover, we agree with the Board that American’s fears with respect to the conduct of the arbitration are exaggerated. The airline refers to the difficulties it will have in finding an arbitrator when one of the most important parties refuses — or at least says it will refuse — to participate in the selection. The Board answers that the National Mediation Board, whose duties under the Railway Labor Act have made it familiar with airline labor disputes, can supply one whose fairness and qualifications could hardly be challenged. American claims to be worried over the lack of standards the arbitrator is to follow. He must apply the same standard, “the integration of seniority lists in a fair and equitable manner,” by which an examiner of the Board would be bound. American professes concern with respect to the number of employee groups the arbitrator may have to hear; the same problem would occur before a hearing examiner. The contention that the arbitrator cannot lawfully alter the contract between American and APA is answered by what Judge Chase wrote for this court in Kent, supra,, 204 F.2d at 266:
A private contract must yield to the paramount power of the Board to perform its duties under the statute creating it to approve mergers and transfers of certificates, such as are here involved, only upon such terms as it determines to be just and reasonable in the public interest.
What the Board can do, an arbitrator appointed pursuant to its order can likewise do.
American’s real fear is that, despite all this, APA will refuse to recognize the decision of an arbitrator which it does not like. But APA could do this only at serious peril. Paragraph 5 of the Board’s order of May 7, 1971, prescribes
[t]hat the determination of the arbi-tral tribunal shall be final and binding upon all pilots and flight engineers of American Airlines as to which there exists a dispute with respect to seniority list integration, which has been the subject of the arbitration provisions provided for herein.
Refusal by APA to abide by the arbitral determination, in this case unless it has been challenged on a recognized ground, cf. 9 U.S.C. § 10, would be as much a contempt as refusal to abide by an integration of the seniority lists made by the Board itself. As already indicated, the Board has broad powers under 49 U.S.C. 1378(b) to deal with labor relation problems growing out of airline mergers. See Kent v. CAB, supra. No argument has been made to us that suggests that while the Board has power to order arbitration of unresolved seniority lists integration questions, it cannot bind all relevant parties by the determination of the arbitral tribunal. To say that the Board could direct an arbitral resolution but not make that resolution binding on all concerned parties would leave the Board with powers that would be more apparent than real. However, we need not here depend on so general a principle, for APA — as well as all other concerned parties — took an active part in the proceedings which resulted in the issuance of the Board’s order of May 7, 1971. As said in the ALI Restatement of Judgments, § 79, p. 356 (1942), “A person who intervenes as a contestant in a proceeding is a party to the judgment whether or not the court originally had jurisdiction over him, provided that before the judgment is finally rendered he appears as a party.” Cf. Rudolph v. City Manager of Cambridge, 341 Mass. 31, 167 N.E.2d 151, 157 (1960). The same principle applies to one who has become a party to a proceeding before an administrative agency. Cf. Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 401-04, 60 S.Ct. 907, 84 L.Ed. 1263 (1940); United States v. Utah Construction & Mining Co., 384 U.S. 394, 421-22, 86 S.Ct. 1545, 16 L.Ed.2d 642 (1966); Safir v. Gibson, 432 F.2d 137, 142-43 (2 Cir.), cert. denied, 400 U.S. 850, 942, 91 S.Ct. 241, 27 L.Ed.2d 246 (1970). The mere possibility of unlawful conduct by APA is surely not enough to make the Board’s adherence to its established policy “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2) (A).
The petitions for review are denied. The stay will be vacated on a date five days after the entry of this opinion.
. The International Brotherhood of Teamsters also submitted a pleading in support of Board action to ensure the propriety of seniority integration procedures.
. In many such cases, although not in this one, the briefs on such expedited appeals are inadequate. And the need for speedy decision tends against the “ample time and freshness of mind for private study and reflection in preparation for discussion” and the writing of helpful opinions, about which Mr. Justice Frankfurter spoke so eloquently in his dissent in Dick v. New York Life Ins. Co., 359 U.S. 437, 458-59, 79 S.Ct. 921, 3 L.Ed.2d 935 (1959).
. APA’s statement at argument that the country possesses only one labor arbitrator competent to integrate airline seniority lists and that APA cannot accept him because of his relations with the Air Line Pilots Association — of which it believes TCA-MEC to be a sub-division— verges on the absurd. While we entertain the highest respect for this gentleman, we are sure he would be the last to make any such assertion of indispensability.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "other agency, beginning with "A" thru "E"". Which specific federal government agency best describes this litigant?
A. Benefits Review Board
B. Civil Aeronautics Board
C. Civil Service Commission (U.S.)
D. Commodity Futures Trading Commission
E. Consumer Products Safety Commission
F. Copyright Royalty Tribunal
G. Drug Enforcement Agency
H. Environmental Protection Agency
I. Equal Employment Opportunity Commission
Answer:
|
songer_othadmis
|
E
|
What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule that some evidence, other than a confession made by the defendant or illegal search and seizure, was inadmissibile, (or did ruling on appropriateness of evidentary hearing benefit the defendant)?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless".
Denis P. KELLY, Petitioner, v. BUTLER COUNTY BOARD OF COMMISSIONERS, Board of Prison Managers, Butler County Correctional Institution, Thomas Hutchinson, Warden, Butler County Correctional Institution and their Agents.
Misc. No. 718.
United States Court of Appeals ' Third Circuit.
Submitted on Briefs July 17, 1967.
Decided Sept. 20, 1967.
See also, 3 Cir., 399 F.2d 133.
Denis P. Kelly, pro se.
Charles T. Chew, County Sol., County of Butler, Butler, Pa., for appellee.
Before BIGGS, MeLAUGHLIN and VAN DUSEN, Circuit Judges.
OPINION OF THE COURT
PER CURIAM.
This suit seeking money damages only and filed under 28 U.S.C. § 1343 and 42 U.S.C. §§ 1981 and 1983 is before this court on plaintiff’s application, supported by affidavit of poverty, to prosecute an appeal in this court in forma pauperis from an order of the District Court denying his application to proceed in forma pauperis in that court under 28 U.S.C. § 1915. The District Court opinion stated: “a more detailed pleading is necessary * * * for the purpose of informing any judge to whom resort is had that the claim is not frivolous.”
In view of these allegations, as summarized at pages 1-2 of the District Court opinion, and the terms of the Complaint, the request for permission to proceed in forma pauperis in this court will be granted:
“The plaintiff-petitioner alleges that his federal civil rights were violated by the named defendants in the following particulars: (1) the defendants interfered with and obstructed the plaintiff’s right to access to the Federal courts in that they did not permit him to file legal documents with the United States District Court at Pittsburgh in November 1965 and in February 1966, * * *; and (2) in June 1966, ‘after having been extradicted from the State of New York and returned to the Butler County Correctional Institution’, the plaintiff-petitioner was placed in solitary confinement and subjected to cruel and unusual conditions in order to coerce a guilty plea to the charges lodged against him. The allegedly cruel and unusual conditions which endangered the health and emotional well-being of the plaintiff-petitioner were a steel bunk without a mattress, lack of clothing, no facilities to wash himself, bad food, and foul air. The plaintiff-petitioner was also denied medical care.”
Our recent decision of June 16,1967, in Negrich v. Hohn et al., 379 F.2d 213 (3rd Cir.) is inapplicable to the issue now before this court, since that case involved an appeal from a dismissal of a complaint under the Civil Rights Act on the merits whereas the application now before the court is to proceed in forma pauperis so that the appeal may be considered by this court.
. Paragraphs 8 and 9 of the Complaint allege that attempts to send legal documents to the courts in November 1965 and February 1966 were denied. Paragraph 11 alleges that in June 1966, when in the Butler County Correctional Institution, “Plaintiff and a co-defendant were placed in solitary confinement under cruel and unusual conditions * * * for several weeks until they succumbed to the coercion of the defendants and/or their agents to submit guilty pleas to charges lodged against them.” Paragraph 12 contains this language, inter alia:
“Plaintiff was stripped of all clothing and was unable even to wash himself. The food served to plaintiff was approximately one third of the daily ration provided for other prisoners, and was so inadequately prepared that plaintiff suffered intermittent bouts of diarrhea and vomitting. After several days the air became unbearably foul, yet defendants and/or their agents refused to open a window despite 100 degree temperature.”
. The situation presented by this record is factually quite different from that before the courts in cases such as Ray v. Commonwealth of Pennsylvania, 263 F.Supp. 630 (W.D.Pa.1967); Cooper v. Hutchinson, 184 F.2d 119, 124-125 (3rd Cir. 1950), where equitable injunctive relief was sought and 28 U.S.C. § 1915 not involved; and Gaito v. Prasse, 312 F.2d 169 (3rd Cir. 1963), where equitable injunctive relief was sought. The past conditions about which plaintiff complains may no longer exist so that administrative relief would be useless.
Question: Did the court rule that some evidence, other than a confession made by the defendant or illegal search and seizure, was inadmissibile (or did ruling on appropriateness of evidentary hearing benefit the defendant)?
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer:
|
songer_geniss
|
G
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous".
Joe Albert LITTLEFIELD, also known as Joe A. Littlefield, and Bernadine M. Littlefield, Plaintiffs-Appellants, v. WALT FLANAGAN AND COMPANY, a/k/a Walt Flanagan & Co., Inc., et al., Defendants-Appellees.
No. 73-1661.
United States Court of Appeals, Tenth Circuit.
Argued March 18, 1974.
Decided June 18, 1974.
Wm. H. Hazlitt, Denver, Colo. (Weller, Friedrich, Hickisch & Hazlitt, Denver, Colo., on the brief), for plaintiffs-appellants.
Edward B. Towey, Denver, Colo., entered an appearance for the defendantsappellees but filed no brief and made no argument.
Before BREITENSTEIN, SETH and DOYLE, Circuit Judges.
BREITENSTEIN, Circuit Judge.
The issue is whether an action for rescission under the Truth in Lending Act, 15 U.S.C. § 1635, is barred by the one-year period of limitations contained in § 1640(e). The district court held that the action was barred. We reverse.
On November 25, 1970, plaintiffs-appellants contracted with defendant-appellee Perlmutter Associates, Inc., for the purchase of real property to be used by them as a residence. As part of the purchase price, purchasers gave to Perlmutter, the seller, a note for $9,260.-13 secured by a second deed of trust on the property. Perlmutter assigned these instruments to defendant-appellee Walt Flanagan and Company. Although the purchase and sale was a consumer credit transaction within the purview of the Truth in Lending Act, 15 U.S.C. § 1601 et seq., none of the disclosures required by the Act were made by the seller to the purchasers. After purchasers defaulted on payments, Flanagan threatened foreclosure. Purchasers learned of their statutory right to rescind on February 20, 1972, and on the next day notified Perlmutter, the seller, that they chose to exercise the right. Defendants ignored the notice and on March 3 notice of foreclosure was published on the demand of Flanagan. Purchasers filed this suit on April 7, 1972, and sought an injunction against foreclosure, recovery of the civil liability provided by 15 U.S. C. § 1640, and rescission under 15 U.S.C. § 1635.
The district court granted a preliminary injunction barring the foreclosure sale. The seller, Perlmutter, and its assignee, Flanagan, then filed in this court a petition for mandamus to require the vacation of the injunction and the dismissal of the district court action. The district court entered orders maintaining the status quo during the mandamus proceedings. On June 28, 1972, the petition for mandamus was denied. See No. 72-1350, Flanagan and Company v. Arraj. On July 12 default was entered against all defendants. On September 28 Judge Arraj vacated the default, ordered an answer on the merits only within five days, and forbade the assertion of any counterclaim. From the bench he sharply criticized what he called “the arrogance of counsel for the defendants” and said that if permissible he would assess $300 as a sanction against defendants. The answer then filed raised the bar of the § 1640(e) statute of limitations.
The case was heard by Judge Finesilver who held that as to both the civil liability and rescission claim jurisdiction was dependent on § 1640 and failed because of the one-year limitation which ran from the date of the transaction.
The statutory scheme of the Truth in Lending Act “is within the power granted to Congress under the Commerce Clause.” Mourning v. Family Publications Service, Inc., 411 U.S. 356, 377, 93 S.Ct. 1652, 1665, 36 L.Ed.2d 318. Section 1337, 28 U.S.C., gives the district courts “original jurisdiction of any civil action or proceeding arising under any Act of Congress regulating Commerce * * * .” It follows that jurisdiction lies under § 1337.
So far as pertinent here the Act provides in § 1635(a), that in a consumer credit transaction in which a security interest is retained or acquired on residence property, except a first lien to finance acquisition (see § 1635(e), the obligor has the right to rescind “until midnight of the third business day following the consummation of the transaction or the delivery of the disclosures required under this section * * *.” The creditor is required to “clearly and conspicuously” disclose to the obligor his rights under § 1635, and shall provide “an adequate opportunity to the obligor to exercise his right to rescind any transaction” subject to the section.
We have here a consumer credit transaction with an acquired security interest, a second lien on real property used as a residence. Regulation Z promulgated under the Act, 12 C.F.R. § 226.9, details rules relating to notification by the seller to the purchaser of his right to rescind. Defendants ignored these rules. When the purchasers notified the seller of their desire to rescind, the seller gave no reasonable opportunity for the exercise of that right.
The question then is whether the § 1635 claim is barred by § 1640(e). In its subsection (a), § 1640 creates a specified civil liability for failure to make the disclosures which the Act requires. Subsection (e) reads:
“Any action under this section may be brought in any United States District Court, or in any other court of competent jurisdiction, within one year from the date of the occurrence of the violation.”
In Stevens v. Rock Springs National Bank, 10 Cir., 497 F.2d 307, we said that “the disclosure requirements [of the Act] may be satisfied without penalty at any time prior to the contracting to extend credit, and no violation can occur until such a credit contract is executed,” and held that an action for § 1640 liability was barred when the action was brought more than one year after the closing of the purchase transaction. The Stevens opinion expressly left undecided any relationship between the right of rescission under § 1635 and the § 1640(e) limitation period. Wachtel v. West, 6 Cir., 476 F.2d 1062, cert. denied 414 U.S. 874, 94 S.Ct. 161, 38 L.Ed.2d 114, also enforced the one-year limitation in a § 1640 action and left open the application of that limitation to a § 1635 action.
Stevens v. Rock Springs National Bank disposes of the § 1640 claim of the purchasers because the action was brought more than one year after the consummation of the transaction. The applicability of the limitation to a § 1635 claim was not decided by either Stevens or Wachtel v. West, and is apparently a matter of first impression in federal appellate courts. There is no helpful legislative history. See Palmer v. Wilson, N.D.Cal., 359 F.Supp. 1099, 1103-1104.
Section 1640(e) by its express terms applies only to actions to enforce § 1640 rights. Section 1635 has no provision limiting the time for suit. The three-day provision of that section does not apply because the creditor did not disclose to the obligor his right to rescind. The Act is designed to prevent “unscrupulous and predatory creditor practices,” is remedial, and must be liberally construed to effectuate the intent of Congress. N. C. Freed Co., Inc. v. Board of Governors of the Federal Reserve System, 2 Cir., 473 F.2d 1210, 1214, cert. denied, 414 U.S. 827, 94 S.Ct. 48, 38 L.Ed.2d 61. The purchasers brought this suit about six weeks after they learned of their right to rescind. Whatever detriment might be suffered by defendants is their own fault because they chose to flaunt the statute. The purpose of the Act is furthered by permitting, rather than barring, the suit.
The fact that the rescission notice went to Perlmutter, the assignor of second lien holder Flanagan, is immaterial. Section 1635 requires that notice of intent to rescind be given to the creditor and Perlmutter was the creditor under the definition in § 1602(f). In our opinion the § 1635 rescission claim is not barred by § 1640(e) or otherwise and may be maintained. The district court erred in dismissing it.
One point remains. Judge Ar-raj in vacating the default against defendants said that if it were permissible he would impose a sanction of $300 against defendants. The matter was not pursued further because of Judge Fine-silver’s dismissal of the action. The imposition of conditions in an order vacating a default is a device frequently used to mitigate any prejudice which plaintiff may suffer by allowing defendants to plead. 10 Wright, Fed.Pract. and Proc. §§ 2699 and 2700. On remand the district court shall determine what, if any, sanction shall be imposed in the light of the objectives of the Truth in Lending Act and the delays which the actions of the defendants have caused in this case.
Reversed and remanded for further proceedings in the light of this opinion. The mandate shall issue forthwith.
. Section 1635(a) reads:
“Except as otherwise provided in this section, in the case of any consumer credit transaction in which a security interest is retained or acquired in any real property which is used or is expected to be used as the residence of the person to whom credit is extended, the obligor shall have the right to rescind the transaction until midnight of the third business day following the consummation of the transaction or the delivery of the disclosures required under this section under this part, whichever is later, by notify-under this part, whichever is later by notifying the creditor, in accordance with regulations of the Board of his intention to do so. The creditor shall clearly and conspicuously disclose, in accordance with regulations of the Board, to any obligor in a transaction subject to this section the rights of the obligor under this section. The creditor shall also provide, in accordance with regulations of the Board, an adequate opportunity to the obligor to exercise his right to rescind any transaction subject to this section.”
Question: What is the general issue in the case?
A. criminal
B. civil rights
C. First Amendment
D. due process
E. privacy
F. labor relations
G. economic activity and regulation
H. miscellaneous
Answer:
|
songer_treat
|
A
|
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.
TELEDYNE INDUSTRIES, INC., doing business as Teledyne Still-Man, Petitioner/Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner.
Nos. 89-5809, 89-5885.
United States Court of Appeals, Sixth Circuit.
Argued April 30, 1990.
Decided Aug. 23, 1990.
William Alexander Blue, Jr., Larry W. Bridgesmith (argued), Constangy, Brooks & Smith, Nashville, Tenn., Alan L. Rolnick, Constangy, Brooks & Smith, Atlanta, Ga., for petitioner/cross-respondent.
Aileen A. Armstrong, Deputy Asso. Gen. Counsel, Howard E. Perlstein, Laurence S. Zakson (argued), N.L.R.B., Office of the General Counsel, Washington, D.C., Martin M. Arlook, Director, Victor McLemore, N.L.R.B., Atlanta, Ga., for respondent/cross-petitioner.
Before MARTIN and BOGGS, Circuit Judges, and JOINER, Senior District Judge.
The Honorable Charles W. Joiner, Senior United States District Judge for the Eastern District of Michigan, sitting by designation.
BOYCE F. MARTIN, Jr., Circuit Judge.
This controversy stems from the discharge of two employees by Teledyne Industries following a strike at its plant in Cookeville, Tennessee, which manufactures heating elements. The two employees, Oma Stidham and Willie Wheeler, are members of the International Association of Machinists and Aerospace Workers, AFL-CIO, and its affiliated Local Lodge 2553. Stidham and Wheeler participated in the Union’s long and frequently hostile strike at the Cookeville plant during 1984 and 1985. After the strike was over, Teledyne discharged Stidham and Wheeler for misconduct during the strike. The National Labor Relations Board found that by discharging Stidham and Wheeler, Teledyne violated the National Labor Relations Act, 29 U.S.C. §§ 141 et seq. The Board ordered Teledyne to reinstate Stidham and Wheeler with backpay. Teledyne Industries now challenges the Board’s order, and the Board seeks enforcement. We enforce the Board’s order.
The strike began on February 1, 1984 when the Union’s membership rejected a new collective bargaining agreement with Teledyne. Teledyne began hiring permanent replacements for the strikers on February 27, 1984. Striking employees had been tensely anticipating this move by Tel-edyne, and they allegedly responded with a campaign of intimidation to prevent their replacements from coming to work. Striking workers allegedly blocked entrances and access routes to the plant, threw rocks at the vehicles of replacement workers entering the plant, and threatened replacement workers in their homes and in the community.
After an investigation of these incidents, the Regional Director of the Board issued a complaint on March 22, 1984, alleging many violations of the Act. One allegation was that Stidham, together with other employees, followed nonstriking employees to their homes and threatened them for not joining the strike, in violation of section 8(b)(1)(A) of the Act. 29 U.S.C. § 158(b)(1)(A) (prohibits labor organizations from coercing employees in the exercise of rights guaranteed by the Act). On March 28, 1984, the Regional Director filed a petition in the United States District Court for the Middle District of Tennessee for an injunction under section 10(j) of the Act against Stidham and others to prevent further unfair labor practices. Id. at § 160(j). Before any action was taken on the petition, the parties settled their grievances, and the district court entered an agreed order on April 4, 1984. The agreed order enjoined the Union and others from mass picketing, blocking access to the plant, and other strike misconduct. The district court did not hold a hearing, and the parties waived any findings of fact or conclusions of law.
On August 13, 1984, more controversy ensued when Teledyne began operating a second shift at the plant with more permanent replacements and nonstriking workers. Striking workers allegedly blocked access to the plant again, struck the cars of replacement workers with rocks and other objects, and threatened and assaulted nonstriking employees. In response to a charge filed by Teledyne, the Board filed a second petition with the district court on August 15, 1984, which was amended on August 24, 1984. The second petition sought further injunctive relief and a finding of civil and criminal contempt against various strikers, including Willie Wheeler, for violation of the agreed order entered on April 4, 1984. The second petition alleged that Wheeler had blocked entrances to the plant, hit cars belonging to nonstriking employees, and threatened nonstriking employees. However, the parties again negotiated a settlement. Instead of instituting contempt proceedings, the district court entered another agreed order on August 29, 1984. This order enjoined Wheeler, along with 36 others, from picketing and from coming within 500 feet of the plant. Once again, the district court did not hold a hearing, nor did it make any findings of fact or law regarding the Board’s allegations.
The strike wore on until the Teledyne employees voted to decertify the Union in April 1985. With the Union decertified, the strike ended on April 5, 1985. After the strike, Teledyne created a priority list for rehiring former striking employees. Wheeler, Stidham, and three other former striking employees were on the rehiring list, but before they could be rehired, Tele-dyne terminated them in early 1986 for misconduct during the strike.
The Regional Director of the Board issued a complaint charging Teledyne with committing an unfair labor practice by discharging Wheeler, Stidham, and the other three former employees. An employer commits an unfair labor practice if the employer refuses to reinstate or discharges an employee for exercising rights guaranteed by the National Labor Relations Act, 29 U.S.C. § 157, including participation in a lawful economic strike. 29 U.S.C. § 158(a)(1); NLRB v. Int’l Van Lines, 409 U.S. 48, 52, 93 S.Ct. 74, 77, 34 L.Ed.2d 201 (1972). However, employees may forfeit the Act’s protection from discharge through physical violence or other unlawful conduct, if the conduct is sufficiently egregious. Star Meat Co. v. NLRB, 640 F.2d 13, 14 (6th Cir.1980) (per curiam).
Before an administrative law judge could hold a hearing on the Board’s complaint, Teledyne filed a motion for partial summary judgment. Teledyne argued that the Board was estopped from alleging that Tel-edyne had committed an unfair labor practice in discharging Wheeler and Stidham. Teledyne contended that the Board had previously asserted the contrary position that Stidham and Wheeler had committed misconduct under the Act by seeking injunc-tive relief against Stidham and a finding of contempt against Wheeler. The administrative law judge denied Teledyne’s motion and set the case for a hearing.
After an eight-day hearing in the fall of 1986, the administrative law judge found that Teledyne had violated section 8(a)(1) by discharging Wheeler and Stidham, but that the discharges of the other three employees were warranted. The administrative law judge based its holding on its factual finding that neither Stidham nor Wheeler had engaged in serious strike misconduct. NLRB v. Burnup & Sims, 379 U.S. 21, 85 S.Ct. 171, 13 L.Ed.2d 1 (1964). The administrative law judge also found that Teledyne did not have a good faith belief that Wheeler had engaged in serious strike misconduct. This finding alone could support a holding that Teledyne had committed an unfair labor practice. Id. at 23, 85 S.Ct. at 172. In regard to Stidham, the administrative law judge found that Teledyne honestly believed, albeit mistakenly, that she had engaged in strike misconduct. The administrative law judge ordered Teledyne to reinstate Stidham and Wheeler with backpay.
A three-member panel of the Board affirmed the decision of the administrative law judge on June 15, 1989. The Board held that the discharge of Stidham and Wheeler for misconduct during the strike violated the Act because they were subsequently found not to have engaged in the misconduct. See NLRB v. Burnup & Sims, 379 U.S. 21, 85 S.Ct. 171, 13 L.Ed.2d 1 (1964). The Board also affirmed the award of backpay to Stidham and Wheeler, holding that an employer must pay back-pay for a discharge in violation of the Act, regardless of whether the employer had a good faith belief that the discharged individual had engaged in misconduct. Id. at 23-24, 85 S.Ct. at 172-73.
We now have three issues for review: the applicability of judicial estoppel, the appropriate award of backpay, if any, and the administrative law judge's decision on the merits.
Claim of Judicial Estoppel
Teledyne contends that the doctrine of judicial estoppel bars the Board from issuing a complaint against Teledyne for discharging Wheeler and Stidham. The doctrine of judicial estoppel forbids a party “from taking a position inconsistent with one successfully and unequivocally asserted by the same party in a prior proceeding.” Reynolds v. Commissioner of Internal Revenue, 861 F.2d 469, 472-73 (6th Cir.1988) (citations omitted). Judicial es-toppel is an equitable doctrine that preserves the integrity of the courts by preventing a party from abusing the judicial process through cynical gamesmanship, achieving success on one position, then arguing the opposite to suit an exigency of the moment. See Scararo v. Central R.R., 203 F.2d 510, 513 (3d Cir.1953) (judicial estoppel precludes a party from “playing fast and loose with the courts”). In order to invoke judicial estoppel, a party must show that the opponent took a contrary position under oath in a prior proceeding and that the prior position was accepted by the court. Reynolds, 861 F.2d at 472-73. Teledyne contends (1) that the Board took a position in its petitions to the district court that Stidham and Wheeler engaged in serious misconduct under the Act justifying their dismissal, (2) that the agreed orders constituted judicial acceptance of that position, and (3) that the Board’s current order finding that the discharges were not justified under the Act contradicts the Board’s previous position in its petitions to the district court. The weakness in Teledyne’s contention is that the agreed orders do not constitute judicial acceptance of the Board’s prior position.
Judicial estoppel is applied with caution to avoid impinging on the truth-seeking function of the court because the doctrine precludes a contradictory position without examining the truth of either statement. For example, before the doctrine of judicial estoppel may be invoked, the prior argument must have been accepted by the court. Edwards v. Aetna Life Insurance Co., 690 F.2d 595, 599 (6th Cir.1982); City of Kingsport v. Steel and Roof Structure, Inc., 500 F.2d 617 (6th Cir.1974). Although this limit allows parties to contradict themselves in court, it threatens only the integrity of the parties, not of the court. See, e.g., Fidelity & Deposit Co. v. Hudson United Bank, 653 F.2d 766, 778-79 (3d Cir.1981) (an answer to an interrogatory in a different suit did not estop the defendant from taking a different position, although the difference could be admitted in evidence at trial). But cf. Hamilton v. Zimmerman, 37 Tenn. (5 Sneed) 39, 48 (1857) (under Tennessee law, courts refuse to allow inconsistent testimony, regardless of judicial acceptance, in order to protect the “sanctity of the oath.”) In the federal courts, we rely on impeachment during, cross-examination to deter parties from contradicting their prior statements to the court. Fed.R.Evid. 801(d)(1)(A); see also Fed.R.Evid. 613 (even prior inconsistent statements that are not under oath may be used for impeachment). Requiring prior judicial acceptance protects the truth-seeking function of the court, while preserving the court’s integrity.
In this case, the Board cannot be judicially estopped unless the district court’s acceptance of the agreed orders enjoining Wheeler and Stidham constituted judicial acceptance of the Board’s prior allegations, even if the Board’s actions against Tele-dyne contradict its earlier petitions for an injunction to the district court. The district court's acceptance of the agreed orders was not judicial acceptance of the Board’s prior allegations against Stidham and Wheeler. We do not imply that judicial acceptance only occurs where a party ultimately prevails on the merits. “Rather, judicial acceptance means only that the first court has adopted the position urged by the party, either as a preliminary matter or as part of a final disposition.” Edwards, 690 F.2d at 599 n. 5. There was no judicial acceptance in the agreed orders of any allegations against Stidham and Wheeler for two reasons: because the agreed orders contained no findings against Stid-ham and Wheeler, and because the district court’s entry of the agreed orders did not constitute acceptance of them for purposes of judicial estoppel.
Teledyne relies on our decision in Reynolds v. Commissioner of Internal Revenue, 861 F.2d 469 (6th Cir.1988), to assert judicial estoppel, but the differences between this case and Reynolds actually illustrate why judicial estoppel does not apply to the Board. Unlike Reynolds, the agreed orders in this case contain no admissions or findings of law or fact. In Reynolds, the issue was whether the petitioner or the petitioner’s former spouse was liable for the tax on a certain capital gain. Id. at 470. The Commissioner of Internal Revenue admitted in a bankruptcy court-approved stipulation in the first case against the wife, that the wife was liable for the tax, implicitly exonerating the husband. Id. at 471-72. In this case, the Board and the Union negotiated settlement stipulations in which Wheeler and Stidham did not admit that they had engaged in any misconduct under the Act. Judicial estoppel cannot apply without some decision or admission in the district court’s agreed orders as to whether Stidham and Wheeler actually engaged in the alleged misconduct. NLRB v. Markle Mfg. Co., 623 F.2d 1122, 1126-27 (5th Cir.1980).
In addition, the stipulation in Reynolds was approved by a bankruptcy court in a bankruptcy proceeding, where the court had a duty to ensure that the agreement was fair and equitable, unlike an ordinary civil case. Reynolds, 861 F.2d at 473; see also id. at 475 (Kennedy, J., dissenting) (arguing that even a settlement approved in bankruptcy court would not constitute judicial acceptance). Here, the district court had no similar duty in accepting a settlement in lieu of considering the Board’s original petitions under the Act. Settlements, even in the form of an agreed order, ordinarily do not constitute judicial acceptance of whatever terms they contain. In Reynolds, the court stated, “When an ordinary civil case is settled, there is no ‘judicial acceptance’ of anyone’s position and thus there can be no judicial estoppel in a later proceeding.” 861 F.2d at 473; see also Konstantinidis v. Chen, 626 F.2d 933, 939 (D.C.Cir.1980) (“settlement neither requires nor implies any judicial endorsement of either parties[’] claims or theories, and thus, a settlement does not provide the prior success necessary for judicial estop-pel”). Teledyne offers no reason why we should make an exception here. These settlements did not constitute judicial acceptance of any factual allegations under the doctrine of judicial estoppel.
In regard to Stidham, even if the district court had granted the injunction, the injunction would not constitute a finding that the unfair labor practice actually occurred. The grant of the injunction under section 10(j) of the Act means merely that there is “reasonable cause” to believe that an unfair labor practice occurred. Gottfried v. Frankel, 818 F.2d 485, 493-94 (6th Cir.1987) (under section 10(j), a court also must determine that temporary injunc-tive relief is just and proper). “Reasonable cause” to believe a position is not judicial acceptance of that position.
The parties here confuse the difference between judicial and other forms of estoppel. Teledyne asserts only that the Board’s action challenging its discharge of Stidham and Wheeler is barred by judicial estoppel, but the Board construes Tele-dyne’s brief to assert both equitable and collateral estoppel as well. Although each of these doctrines deals with the preclusive effect of previous legal actions, the similarity ends there. See Allen v. Zurich Ins. Co., 667 F.2d 1162, 1166-67 (4th Cir.1982) (“The circumstances under which judicial estoppel may appropriately be invoked are ... found where neither collateral estoppel nor equitable estoppel ... would apply.”).
The difference between judicial and equitable estoppel stems from their different purposes. Judicial estoppel exists to “protect the courts ‘from the perversion of judicial machinery’ ” through a party’s attempt to take advantage of both sides of a factual issue at different stages of the proceedings. Id. (quoting Edwards v. Aetna Life Insurance Co., 690 F.2d 595, 599 (6th Cir.1982)) (emphasis added). In contrast, equitable estoppel serves to protect litigants from unscrupulous opponents who induce a litigant’s reliance on a position, then reverse themselves to argue that they win under the opposite scenario. See Moser v. United States, 341 U.S. 41, 71 S.Ct. 553, 95 L.Ed. 729 (1951); Edwards, 690 F.2d at 598. A party may invoke equitable estoppel to prevent the opposing party from changing positions if (1) the party was an adverse party in the prior proceeding; (2) the party detrimentally relied on the opponent’s prior position; and (3) the party would now be prejudiced if the opponent changed positions. Edwards, 690 F.2d at 598; Konstantinidis v. Chen, 626 F.2d 933 (D.C.Cir.1980). Equitable estoppel may apply regardless of judicial acceptance of the party’s original position, because equitable estoppel protects litigants instead of the integrity of the courts. Judicial estoppel may apply regardless of detrimental reliance by the opposing party because it exists to protect the integrity of courts instead of the litigants.
Judicial estoppel also differs from the doctrine of collateral estoppel. Collateral estoppel conserves judicial resources by preventing a party from relitigating ultimate issues of fact that already have been resolved against that party. Edwards, 690 F.2d at 598-99. Collateral estoppel also preserves the integrity of the court because a court cannot make an inconsistent decision on a specific issue that it does not consider a second time. However, this protection of the court’s integrity is incidental because collateral estoppel protects the court only in cases where the party is taking the same position on the same issue. But see Bank of Heflin v. Landmark Inns of America, Inc., 604 F.2d 354 (5th Cir.1979) (applies collateral estoppel in this situation, although the cited authority concerns judicial estoppel). In nearly a mirror image to collateral estoppel, judicial estop-pel consistently protects the integrity of the court by estopping a party whenever it has previously persuaded a court to make a decision contrary to the party’s current position. Judicial estoppel is not bounded by the limits of mutuality and finality that protect the parties in collateral estoppel. See, e.g., Reynolds v. Commissioner of Internal Revenue, 861 F.2d 469 (6th Cir.1988).
The agreed orders entered previously by the court could not justify imposition of collateral estoppel because they did not constitute fully litigated and finally decided decisions on the merits. Brown v. Felsen, 442 U.S. 127, 139 n. 10, 99 S.Ct. 2205, 2213 n. 10, 60 L.Ed.2d 767 (1979). Indeed, the agreed orders expressly avoided making any decision at all.
To support the imposition of equitable estoppel, Teledyne would have to show that the Board previously had taken an inconsistent position, on which Teledyne had relied to its detriment. The allegations in the Board’s petitions against Stidham and Wheeler were dropped pursuant to the agreed orders, which contained explicit nonadmission clauses. After the district court entered the agreed orders, Teledyne could not justifiably rely on allegations in the petitions that had preceded them.
The Award of Backpay
Teledyne does assert the doctrine of equitable estoppel to argue that Wheeler and Stidham should not be awarded back-pay after their reinstatement. The Board has recognized that an employer reasonably may rely on assertions of fact in a General Counsel complaint accusing individuals of unlawful conduct. Markle Mfg. Co., 239 N.L.R.B. 1142, 1151 (1979) enfd. as modified, 623 F.2d 1122 (5th Cir.1980). Teledyne contends that if we enforce the Board’s order reinstating Stidham and Wheeler, the award of backpay should be tolled until the judgment of the administrative law judge against Teledyne in this case. NLRB v. Markle Mfg. Co., 623 F.2d 1122, 1127 (5th Cir.1980).
In Markle, the Fifth Circuit tolled the award of backpay after the company was ordered to reinstate an employee, who had been discharged in violation of the Act. The Court held that where a previous consent order had been based on allegations of misconduct by the discharged employees, “the first order tolls any duty to reinstate and any concomitant liability for backpay until the second order is entered.” Id. The Court stated that once the Board alleges that an employee has committed a violent act, the employer may rely on those allegations to discharge the employee until the allegations are disproved. Id. at 1127-28.
Although we agree that an employer may rely on allegations by the Board in a complaint, we do not believe that an employer may continue to rely on these allegations, even after the Board has resolved them by settlement. In this case, the agreed orders, which supplanted the previous assertions by the Board in its petitions to the district court, explicitly waived any factual or legal findings. Although the agreed orders stemmed from allegations of violations, they did not endorse those allegations. Thus, we disagree with the Fifth Circuit’s characterization of such agreed orders as “based upon allegations of violence.” As stated above, the Board’s allegations in its petitions were subsumed in the later agreed orders, and Teledyne could not reasonably rely on them. The Board’s complaint, on which the petitions to the district court were based, was resolved in a stipulated settlement on August 20, 1985. The stipulated settlement also explicitly waived any finding of fact or law beyond those needed to establish the Board’s jurisdiction. In addition, it contained an explicit nonadmission clause by the Union.
Thus, by the time Teledyne discharged Stidham and Wheeler in early 1986, five months had elapsed since the Board’s allegations against them had been resolved, and Teledyne could no longer reasonably rely on those allegations. Otherwise, the effect of the waivers of any findings and of the nonadmission clauses would be diluted. The primary advantage to negotiated agreed orders in these cases is that they provide a quick resolution to an immediate problem during a strike, ending any alleged violence or intimidation. In addition, these agreed orders allow parties to avoid the expense and delay of a full adjudication and the risk of defeat. Unions and management will have greater difficulty reaching quick agreement in these pressured negotiations if the result.of those negotiations will necessarily affect the award of backpay in later litigation over potential discharges.
Also, tolling an award of backpay in this situation would conflict with the reasoning of the Supreme Court in NLRB v. Burnup & Sims, 379 U.S. 21, 85 S.Ct. 171, 13 L.Ed.2d 1 (1964). In Burnup & Sims, the Court held that employees were entitled to backpay if they were discharged in violation of the Act, regardless of any good faith belief of the employer that the discharges were warranted under the Act. The Court stated that the “controlling” factor in the analysis was not the employer’s state of mind, but the tendency of the employer’s conduct to weaken or destroy protected rights. Id. at 23-24, 85 S.Ct. at 172-73. If an employee’s backpay is limited upon reinstatement after an illegal discharge because of a position taken by the Board, then it is the employee who suffers for the mistakes of the Board. The result will discourage employees from exercising their rights under the Act. Although the employer may not be culpable where it relied on the Board’s earlier position in good faith in discharging an employee, the Court in Burnup & Sims rejected by a vote of eight to one Justice Harlan’s related approach to make the award of backpay dependent upon the reasonableness of the employer’s decision to discharge the employee. See id. at 24, 85 S.Ct. at 173 (Harlan, J., concurring in part and dissenting in part). Cf. NLRB v. J.H. Rutter-Rex Mfg. Co., 396 U.S. 258, 90 S.Ct. 417, 24 L.Ed.2d 405 (1969) (even if the amount of backpay award is increased by the Board’s failure to act promptly in violation of the Administrative Procedure Act, 5 U.S.C. § 1005(a), enforcement of the full backpay remedy is appropriate). To deny backpay to a reinstated employee in this case conflicts with the rule of Burnup & Sims that the culpability of the employer is not the relevant question. Thus, we decline to toll the award of backpay to Stidham and Wheeler.
The Merits of the Discharges
Aside from the arguments of estoppel, Teledyne argues that the administrative law judge erred in deciding that Teledyne committed an unfair labor practice by discharging Stidham and Wheeler. In NLRB v. Burnup & Sims, 379 U.S. 21, 23, 85 S.Ct. 171, 172, 13 L.Ed.2d 1 (1984), the Court outlined a three-step analysis for determining whether an employer committed an unfair labor practice by refusing to reinstate and by discharging an employee because of strike-related activity. Only the third step of the Burnup & Sims test is at issue here. For purposes of this appeal, the parties assume the first two steps: that Teledyne discharged Wheeler and Stidham for conduct that took place during a protected strike, and that Teledyne discharged its employees in the good faith belief that they had committed misconduct. See id. In the third step, the Board must show that the employees did not actually engage in the alleged misconduct. Id.; Schreiber Mfg. Co. v. NLRB, 725 F.2d 413, 415-16 (6th Cir.1984). Under Burnup & Sims, even if the employer honestly believes that the employee engaged in misconduct, the employer still violates the Act if the Board proves that the employees were innocent. “Otherwise, the protected activity would lose some of its immunity since the example of employees who are discharged on false charges would or might have a deterrent effect on other employees.” Burnup & Sims, 379 U.S. at 23, 85 S.Ct. at 172-73.
The Board’s determination that Wheeler and Stidham did not commit the alleged misconduct is a factual finding and, as such, is conclusive if “substantial evidence on the record as a whole” supports it. 29 U.S.C. § 160(e). We hold that substantial evidence supports the Board’s finding that the alleged misconduct by Wheeler did not occur. Teledyne contends that Wheeler’s discharge was lawful because on July 13, 1984, Wheeler allegedly struck the car of employee Russell Swallow with his picket signs and blocked a tractor-trailer truck from entering Teledyne’s parking lot gate for a period of approximately one minute. If Wheeler struck a vehicle seeking to gain access to the employer’s facility, he could be discharged for strike misconduct. NLRB v. Hartmann Luggage Co., 453 F.2d 178 (6th Cir.1971); see Clear Pine Mouldings, Inc., 268 N.L.R.B. 1044, 1046 (1984) (The standard is whether their conduct “under the circumstances existing ... may reasonably tend to coerce or intimidate employees in the the exercise of rights protected under the Act.”). However, Teledyne introduced no evidence that Wheeler actually struck the car. Without any countervailing evidence, Wheeler’s denial under oath that he struck the car easily surpasses the substantial evidence standard.
Wheeler also denied that he blocked the tractor-trailer truck from entering Tele-dyne’s parking lot. The Teledyne Personnel Director, Cecil Cummings, testified that he saw Wheeler block the truck, and Tele-dyne introduced into evidence a videotape of the blocking of the truck, in which Cummings identified the driver of the car blocking the truck as Wheeler. The administrative law judge viewed the videotape and found that it was not possible to identify the driver as Wheeler. The administrative law judge also found Wheeler to be a more credible witness than Cummings. Our review of the credibility of witnesses also is “narrow.” Electrical Workers Local 948 v. NLRB, 697 F.2d 113, 117 (6th Cir.1982). In Electrical Workers, we stated, “The Board’s choice between conflicting testimony will not be set aside simply because this court ‘would justifiably have made a different choice had the matter before it been de novo.’ ” Id. (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 465, 95 L.Ed. 456 (1950)). We affirm the credibility determination of the Board if “the Board’s conclusions are reasonable in light of the proven facts.” NLRB v. Com general Corp., 684 F.2d 367 (6th Cir.1982). The Board’s decision to credit the testimony of Wheeler over Cummings was not unreasonable.
We also affirm the Board’s finding that Stidham did not engage in strike misconduct. Teledyne contends that Stidham was discharged because she followed nonstrik-ers home from the plant and threatened them, and because she blocked the entrance to the Teledyne plant. Again, the alleged conduct, if proved, could be sufficiently grave to warrant removing the protection of the Act from Stidham. The Board has stated:
[T]he existence of a ‘strike’ in which some employees elect to voluntarily withhold their services does not in any way privilege those employees to engage in other than peaceful picketing and persuasion. They have no right, for example, to threaten those employees who, for whatever reason, have decided to work during the strike, to block access to the employer’s premises and certainly no right to carry or use weapons or other objects of intimidation.
Clear Pine Mouldings, Inc., 268 N.L.R.B. 1044, 1047 (1984). In this case, the Board found that the General Counsel had succeeded in proving that Stidham did not commit the acts which could have warranted discharge.
The Board’s decision regarding Stidham again came down to a credibility determination between opposing witnesses. “Deference to the Board’s factual findings is particularly appropriate where the ‘record is fraught with conflicting testimony and essential credibility determinations have been made.’ ” Tony Scott Trucking v. NLRB, 821 F.2d 312, 315 (6th Cir.1987) (quoting NLRB v. Nueva Engineering, 761 F.2d 961, 965 (4th Cir.1985)), cert. denied, 484 U.S. 896, 108 S.Ct. 230, 98 L.Ed.2d 188 (1987). Here, two carloads full of striking workers followed a group of nonstriking workers to the home of a nonstriking worker, Linda Golden, to engage in intimidation. However, Stidham was not in the two carloads. Stidham appeared in front of Golden’s home in a separate car while the intimidation was going on. There is conflicting testimony as to whether Stidham shouted a threat at Golden’s group or otherwise supported the other striking workers. This evidence does not condemn Stidham so strongly that the administrative law judge’s decision to exonerate her lacks substantial evidence to support it.
In regard to the Stidham’s second instance of alleged misconduct — blocking access to the plant — Teledyne based its case on the testimony of Cecil Cummings and a videotape. However, Cummings admitted that he could not identify Stidham in the videotape, and he contradicted himself as to whether he was present when the alleged blocking of access took place. Here too, the factual finding of the administrative law judge that Stidham did not commit strike misconduct is supported by substantial evidence.
Thus, we decline to apply estoppel, to toll the award of backpay, or to overturn the factual findings of the administrative law judge. The order of the Board is enforced.
. The administrative law judge also held that Teledyne violated section 8(a)(3) of the Act, which prohibits an employer from discriminating in the hire or tenure of an employee to discourage or encourage membership in any labor organization. 29 U.S.C. § 158(a)(3). This holding does not concern us because the Board did not reach this issue in its review of the administrative law judge's decision.
. The Board's decision does not reflect whether Teledyne appealed to the Board its contention that judicial estoppel barred the Board from its action in this case. Because the Board does not assert in its arguments before us that Teledyne failed to do so, we will not consider whether Teledyne's estoppel arguments are waived.
. The doctrine of judicial estoppel does not clash with the right to plead inconsistent claims under Fed.R.Civ.P. 8(e)(2). Rule
Question: What is the disposition by the court of appeals of the decision of the court or agency below?
A. stay, petition, or motion granted
B. affirmed; or affirmed and petition denied
C. reversed (include reversed & vacated)
D. reversed and remanded (or just remanded)
E. vacated and remanded (also set aside & remanded; modified and remanded)
F. affirmed in part and reversed in part (or modified or affirmed and modified)
G. affirmed in part, reversed in part, and remanded; affirmed in part, vacated in part, and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to another court
K. not ascertained
Answer:
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sc_issuearea
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A
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue 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.
SABBATH v. UNITED STATES.
No. 898.
Argued May 2, 1968.
Decided June 3, 1968.
Murray H. Bring, by appointment of the Court, 390 U. S. 935, argued the cause and filed briefs for petitioner.
John S. Martin, Jr., argued the cause for the United States. On the brief were Solicitor General Griswold, Assistant Attorney General Vinson, Beatrice Rosenberg, and Kirby W. Patterson.
Mr. Justice Marshall
delivered the opinion of the Court.
The issue in this case is whether petitioner's arrest was invalid because federal officers opened the closed but unlocked door of petitioner's apartment and entered in order to arrest him without first announcing their identity and purpose. We hold that the method of entry vitiated the arrest and therefore that evidence seized in the subsequent search incident thereto should not have been admitted at petitioner’s trial.
On February 19, 1966, one William Jones was detained at the border between California and Mexico by United States customs agents, who found in his possession an ounce of cocaine. After some questioning, Jones told the agents that he had been given the narcotics in Tijuana, Mexico, by a person named “Johnny," whom he had accompanied there from Los Angeles. He said he was to transport the narcotics to “Johnny” in the latter city.
Also found in Jones’ possession was a card on which was written the name “Johnny” and a Los Angeles telephone number. On the following day at about 3 p. m., Jones made a call to the telephone number listed on the card; a customs agent dialed the number, and with Jones’ permission, listened to the ensuing conversation. A male voice answered the call, and Jones addressed the man as “Johnny.” Jones said he was in San Diego, and still had “his thing.” The man asked Jones if he had “any trouble getting through the line.” Jones replied that he had not. Jones inquired whether “Johnny” planned to remain at home, and upon receiving an affirmative answer, indicated that he was on his way to Los Angeles, and would go to the man’s apartment.
At about 7:30 that evening, the customs agents went with Jones to an apartment building in Los Angeles. The agents returned to Jones the cocaine they had seized from him, and placed a small broadcasting device on him. The agents waited outside the building, listening on a receiving apparatus. Jones knocked on the apartment door; a woman answered. Jones asked if “Johnny” was in, and was told to wait a minute. Steps were heard and then a man asked Jones something about “getting through the line.” Because of noise from a phonograph in the apartment, reception from the broadcasting device on Jones’ person was poor, but agents did hear the word “package.”
The customs agents waited outside for five to 10 minutes, and- then proceeded to the apartment door. One knocked, waited a few seconds, and, receiving no response, opened the unlocked door, and entered the apartment with his gun drawn. Other agents followed, at least one of whom also had his gun drawn. They saw petitioner sitting on a couch, in the process of withdrawing his hand from under the adjacent cushion. After placing petitioner under arrest, an agent found the package of cocaine under the cushion, and subsequently other items (e. g., small pieces of tin foil) were found in the apartment; officers testified at trial they were adapted to packaging narcotics.
Petitioner and Jones were indicted for knowingly importing the cocaine into this country and concealing it, in violation of § 2 of the Narcotic Drugs Import and Export Act, as amended, 35 Stat. 614, 21 U. S. C. §§ 173 and 174. Petitioner was tried alone. The narcotics seized at petitioner’s apartment were admitted into evidence, over objection. On appeal, following the conviction, the Court of Appeals for the Ninth Circuit ruled that the officers, in effecting entry to petitioner’s apartment by opening the closed but unlocked door, did not “break open” the door within the meaning of 18 U. S. C. § 3109 and therefore were not required by that statute to make a prior announcement of “authority and purpose.” 380 F. 2d 108. We granted certiorari, 389 TJ. S. 1003 (1967), to consider the somewhat uncomplicated but nonetheless significant issue of whether the agents’ entry was consonant with federal law. We hold that it was not, and therefore reverse.
The statute here involved, 18 U. S. C. § 3109, deals with the entry of federal officers into a dwelling in terms only in regard to the execution of a search warrant. This Court has held, however, that the validity of such an entry of a federal officer to effect an arrest without a warrant “must be tested by criteria identical with those embodied in” that statute. Miller v. United States, 357 U. S. 301, 306 (1958); Wong Sun v. United States, 371 U. S. 471, 482-484 (1963). We therefore agree with the parties and with the court below that we must look to § 3109 as controlling.
In Miller v. United States, supra, the commonlaw background to § 3109 was extensively examined. The Court there concluded, id., at 313:
“The requirement of prior notice of authority and purpose before forcing entry into a home is deeply rooted in our heritage and should not be given grudging application. Congress, codifying a tradition embedded in Anglo-American law, had declared in § 3109 the reverence of the law for the individual’s right of privacy in his house.”
It was also noted, id., at 313, n. 12, that another facet of the rule of announcement was, generally, to safeguard officers, who might be mistaken, upon an unannounced intrusion into a home, for someone with no right to be there. See also McDonald v. United States, 335 U. S. 451, 460-461 (concurring opinion).
Considering the purposes of § 3109, it would indeed be a “grudging application” to hold, as the Government urges, that the use of “force” is an indispensable element of the statute. To be sure, the statute uses the phrase “break open” and that connotes some use of force. But linguistic analysis seldom is adequate when a statute is designed to incorporate fundamental values and the ongoing development of the common law. Thus, the California Supreme Court has recently interpreted the common-law rule of announcement codified in a state statute identical in relevant terms to § 3109 to apply to an entry by police through a closed but unlocked door. People v. Rosales, 68 Cal. 2d 299, 437 P. 2d 489 (1968). And it has been held that § 3109 applies to entries effected by the use of a passkey, which requires no more force than does the turning of a doorknob. An unannounced intrusion into a dwelling — what § 3109 basically proscribes — is no less an unannounced intrusion whether officers break down a door, force open a chain lock on a partially open door, open a locked door by use of a passkey, or, as here, open a closed but unlocked door. The protection afforded by, and the values inherent in, § 3109 must be “governed by something more than the fortuitous circumstance of an unlocked door.” Keiningham v. United States, 109 U. S. App. D. C. 272, 276, 287 F. 2d 126, 130 (1960).
The Government seeks to invoke an exception to the rule of announcement, contending that the agents’ lack of compliance with the statute is excused because an announcement might have endangered the informant Jones or the officers themselves. See, e. g., Gilbert v. United States, 366 F. 2d 923, 931 (C. A. 9th Cir. 1966), cert, denied, 388 U. S. 922 (1967); cf. Ker v. California, 374 U. S. 23, 39-40 (1963) (opinion of Clark, J.); id., at 47 (opinion of Brennan, J.). However, whether or not “exigent circumstances,” Miller v. United States, supra, at 309, would excuse compliance with § 3109, this record does not reveal any substantial basis for excusing the failure of the agents here to announce their authority and purpose. The agents had no basis for assuming petitioner was armed or might resist arrest, or that Jones was in any danger. Nor, as to the former, did the agents make any independent investigation of petitioner prior to setting the stage for his arrest with the narcotics in his possession.
The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
Reversed and remanded.
Mr. Justice Black dissents.
The Government contends in this Court that petitioner did not adequately raise at trial the issue of the agents’ manner of entry, and therefore that it did not have sufficient opportunity to indicate the full circumstances surrounding the entry and petitioner’s arrest. However, petitioner’s trial counsel, in the course of objecting, clearly stated there were no facts “sufficient to justify this officer’s breaking into” the apartment, and his objection was truncated by a ruling of the trial judge. In any event, the Government met the issue on the merits in the Court of Appeals, and apparently did not there contend the record was inadequate for its resolution; and the Court of Appeals decided the issue on the merits. In these circumstances, we are justified in likewise doing so.
“The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a person aiding him in the execution of the warrant.”
See also, e. g., Ng Pui Yu v. United States, 352 F. 2d 626, 631 (C. A. 9th Cir. 1965); Gatlin v. United States, 117 U. S. App. D. C. 123, 130, 326 F. 2d 666, 673 (C. A. D. C. Cir. 1963); United States v. Cruz, 265 F. Supp. 15, 21 (W. D. Tex. 1967).
See also Ker v. California, 374 U. S. 23, 47-59 (1963) (opinion of BreNNAN, J.).
While distinctions are obvious, a useful analogy is nonetheless afforded by the common and case law development of the law of burglary: a forcible entry has generally been eliminated as an element of that crime under statutes using the word “break,” or similar words. See R. Perkins, Criminal Law 149-150 (1957); J. Michael & H. Wechsler, Criminal Law and Its Administration 367-382 (1940); Note, A Rationale of the Law of Burglary, 51 Col. L. Rev. 1009, 1012-1015 (1951). Commentators on the law of arrest have viewed the development of that body of law as similar. See EL Voorhees, Law of Arrest §§ 159, 172-173 (1904); Wilgus, Arrest Without a Warrant, 22 Mich. L. Rev. 798, 806 (1924):
“What constitutes ‘breaking’ seems to be the same as in burglary: lifting a latch, turning a door knob, unhooking a chain or hasp, removing a prop to, or pushing open, a closed door of entrance to the house, — even a closed screen door ... is a breaking . . . .” (Footnotes omitted.)
See generally Blakey, The Rule of Announcement and Unlawful Entry, 112 U. Pa. L. Rev. 499 (1964).
See, e. g., Munoz v. United States, 325 F. 2d 23, 26 (C. A. 9th Cir. 1963); United States v. Sims, 231 F. Supp. 251, 254 (D. C. Md. 1964); cf. People v. Stephens, 249 Cal. App. 2d 113, 57 Cal. Rptr. 66 (1967). See also Ker v. California, 374 U. S., at 38.
We do not deal here with entries obtained by ruse, which have been viewed as involving no “breaking.” See, e. g., Smith v. United States, 357 F. 2d 486, 488 n. 1 (C. A. 5th Cir. 1966); Leahy v. United States, 272 F. 2d 487, 489 (C. A. 9th Cir. 1959). See also Wilgus, n. 5, supra, at 806.
Exceptions to any possible constitutional rule relating to announcement and entry have been recognized, see Ker v. California, supra, at 47 (opinion of BreNNAN, J.), and there is little reason why those limited exceptions might not also apply to § 3109, since they existed at common law, of which the statute is a codification. See generally Blakey, n. 5, supra.
Question: What is the issue area of the decision?
A. Criminal Procedure
B. Civil Rights
C. First Amendment
D. Due Process
E. Privacy
F. Attorneys
G. Unions
H. Economic Activity
I. Judicial Power
J. Federalism
K. Interstate Relations
L. Federal Taxation
M. Miscellaneous
N. Private Action
Answer:
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songer_usc1
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0
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title.
EDWARD E. GILLEN COMPANY, Plaintiff-Appellee, Cross-Appellant, v. EAST KENTUCKY POWER COOPERATIVE, Defendant-Appellant, Cross-Appellee. Stanley Consultants, Incorporated, Defendant-Appellee.
Nos. 82-5446, 82-5447.
United States Court of Appeals, Sixth Circuit.
Argued Aug. 31, 1983.
Decided Oct. 12, 1983.
Dale W. Henley (argued), Foster J. Collis, Winchester, Ky., William E. Scent, Keith, Scent & Scent, Hopkinsville, Ky., for defendant-appellant, cross-appellee.
Lee J. Geronime (argued), Michael, Best & Friedrich, R. Jeffrey Krill, Milwaukee, Wis., for plaintiff-appellee, cross-appellant.
William H. McCann (argued), G. Benjamin Cowgill, Brown, Sledd & McCann, Lexington, Ky., for defendant-appellee.
Before LIVELY, Chief Circuit Judge, PECK, Senior Circuit Judge, and NEESE, District Judge.
The Honorable C.G. Neese, Senior Judge, United States District Court for the Eastern District of Tennessee, sitting by designation,
PER CURIAM.
The defendant East Kentucky Power Cooperative appeals and the plaintiff Edward Gillen Company cross-appeals from judgment entered by the district court following a jury trial in this action by the general contractor on a construction project against the owner and the project engineer. The plaintiff contends that the defendants failed to warn it of soil conditions known to them which caused excessive subsidence requiring the plaintiff to suffer substantial loss of production and to perform extra work in connection with pilings. The plaintiff also sought payment for extra work performed in storing and moving materials from one site to another at the request of the defendant East Kentucky Power Cooperative.
The plaintiff sought recovery for the expenses involved with the soil subsidence on both contract and fraud theories. The district court granted summary judgment for the defendants on the contract claims and submitted the fraud issue to the jury. In doing so the district court relied on two recent decisions of the Kentucky Court of Appeals (now the Kentucky Supreme Court): Codell Construction Co. v. Commonwealth, 566 S.W.2d 161 (Ky.App.1977), and Dravo Corp. v. Commonwealth, 564 S.W.2d 16 (Ky.App.1977). On appeal the plaintiff argues that these two decisions are not controlling and that it was entitled to have its claim for breach of contract submitted to the jury. Upon consideration the court concludes that the district court properly applied controlling Kentucky law in refusing to submit the breach of contract claim to the jury.
On cross-appeal East Kentucky Power Cooperative contends that it was error for the district court to permit recovery for delay and expense in storing and relocating material because recovery was precluded by the “no-damage for delay” clause in the contract and for the failure of the plaintiff to submit a change authorization request for any additional work. Both of these issues were submitted to the jury which determined by its verdict that neither clause pertained to the factual situation developed at the trial. We agree with the district court that East Kentucky Power Cooperative was not entitled to a directed verdict on this issue and that the issue was properly submitted to the jury under corrected instructions.
The court also concludes that the district court did not abuse its discretion in allowing prejudgment interest.
The judgment of the district court is affirmed on appeal and cross-appeal.
Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number.
Answer:
|
songer_district
|
H
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What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
MARDAN CORPORATION, Plaintiff-Appellant, v. C.G.C. MUSIC, LTD. and Macmillan, Inc., Defendants-Appellees.
No. 85-1520.
United States Court of Appeals, Ninth Circuit.
Argued Aug. 14, 1985.
Submitted Aug. 30, 1985.
Decided Nov. 25, 1986.
Karen L. Florini, Dept, of Justice, Washington, D.C., Renee R. McDermott, Barnes & Thornburg, Indianapolis, Ind., for plaintiff-appellant.
Warren S. Radler, Barbara B. Guibord, Rivkin, Leff, Sherman & Radler, Chicago, Ill., for defendants-appellees.
Before HUG, NORRIS and REINHARDT, Circuit Judges.
NORRIS, Circuit Judge:
This appeal concerns the liability provisions of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. § 9601-9657 (1982), which was enacted in 1980. CERCLA was a response by Congress to the threat to public health and the environment posed by the widespread use and disposal of hazardous substances. Its purpose was to ensure the prompt and effective cleanup of waste disposal sites, and to assure that parties responsible for hazardous substances bore the cost of remedying the conditions they created. 126 Cong.Rec. 31964 (statement of Rep. Florio).
Section 107(a) of CERCLA, 42 U.S.C. § 9607(a), authorizes both governmental and private entities to sue statutorily defined “responsible parties” to recover costs incurred in cleaning up hazardous waste disposal sites.. The appeal arises out of a suit brought by one private responsible party against another to recover damages for costs incurred in cleaning up and closing a waste disposal site in Nogales, Arizona, that was subject to regulation under the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. § 6901-6987 (1982).
I
By agreement dated July 10, 1980 (the “Purchase Agreement”), appellant Mardan Corporation (“Mardan”) acquired certain assets from appellee Macmillan, Inc. (“Macmillan”). Among the assets acquired were a plant, equipment and related real property in Nogales, Arizona, used in the manufacture of musical instruments.
Macmillan had manufactured instruments at the Nogales plant for ten years prior to the sale. During that period, Macmillan deposited waste streams from the plant’s electroplating operations into a settling pond at the site. Wastes deposited into the settling pond included heavy metals, cyanide, solvents including trichloroethylene and other electroplating wastes. When Mardan acquired the property, it continued to use the plant to manufacture musical instruments, generating many of the same wastes and depositing them in the same settling pond.
In August 1980, prior to the sale of the Nogales plant, Macmillan filed with the United States Environmental Protection Agency (“EPA”) a Notification of Hazardous Waste Activity notifying EPA that it generated and disposed of hazardous waste at the plant. When Mardan acquired the plant in November 1980, it qualified for interim status for the settling pond pursuant to RCRA.
In November 1981, the parties executed an “Agreement of General Settlement and Release” (“Settlement Agreement”) under which Macmillan paid Mardan $995,000 in settlement of a variety of claims arising out of the Purchase Agreement, including claims of former plant employees for vacation and severance pay, various accounts receivable, and “certain other claims ... based upon or arising out of the Purchase Agreement and the transactions contemplated therein.” The parties specified that $213,944 of the $955,000 related to liabilities for severance and vacation pay, while the remaining $781,055 related to “other claims asserted under the Purchase Agreement.” The language of the Settlement Agreement and the accompanying “General Release and Receipt” (the “Release”) encompassed “all actions, causes of action, suits, ... based upon, arising out of or in any way relating to the Purchase Agreement____”
In 1983 the EPA brought administrative enforcement actions against Mardan for violation of the RCRA interim status requirements at the Nogales plant. The administrative actions were resolved by a Consent Agreement between the EPA and Mardan which required Mardan to clean up and close the settling pond. Specifically, Mardan agreed to install a groundwater monitoring system and to raise the level of the dike surrounding the settling pond.
Mardan then brought this action against Macmillan under section 107 of CERCLA, seeking to recover damages for costs incurred and to be incurred by Mardan in cleaning up and closing the waste disposal site. Mardan’s complaint alleged that the cost of complying with the Consent Agreement would exceed $500,000 and could run as high as $1,550,000.
The district court granted summary judgment to Macmillan. Although the court ruled that the costs incurred by Mardan in cleaning up and closing the Nogales site constituted “necessary costs of response” within the meaning of section 107(a)(4)(B) of CERCLA and that Macmillan was liable for the response costs incurred by Mardan because it was a “responsible party” within the meaning of section 107(a), it awarded Macmillan summary judgment on two alternative grounds: (1) that Mardan’s action under section 107 of CERCLA was barred by the terms of the Release executed by Mardan as part of the 1981 Settlement Agreement, and (2) that Mardan’s action was barred by the doctrine of unclean hands. Mardan Corp. v. C.G.C. Music, Ltd., 600 F.Supp. 1049 (D.Ariz.1984).
The district court had subject matter jurisdiction under section 113 of CERCLA, 42 U.S.C. § 9613 (1982). Our jurisdiction rests on 28 U.S.C. § 1291. Because we affirm the summary judgment on the ground that Mardan’s CERCLA action is barred by the terms of the Settlement Agreement and the Release, we need not decide whether the doctrine of unclean hands may be invoked as a defense to a private action brought under Section 107 of CERCLA. We review the district court’s grant of summary judgment de novo. Lojek v. Thomas, 716 F.2d 675, 677 (9th Cir. 1983). Summary judgment is appropriate only if, “viewing the evidence in the light most favorable to the opposing party, ... there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law.” Id.
II
Before deciding whether Mardan’s action under section 107 of CERCLA is foreclosed by the Settlement Agreement and the Release, we must first consider whether the district court was correct in utilizing New York law as the rule of decision or whether it should have developed a uniform federal rule to decide the issue. From the outset, we must be clear that federal law governs the issue, for federal law always governs the validity of releases of federal causes of action. See Dice v. Akron, Canton & Youngstown R.R. Co., 342 U.S. 359, 361, 72 S.Ct. 312, 314, 96 L.Ed. 398 (1952); Salmerón v. United States, 724 F.2d 1357, 1361 (9th Cir.1983); Jones v. Taber, 648 F.2d 1201, 1203 (9th Cir.1981). But that is only the initial step in the analysis. The next step is to determine whether, although federal law governs, state law should be incorporated to provide the content of that federal law. See, e.g., Burks v. Lasker, 441 U.S. 471, 477, 99 S.Ct. 1831, 1836, 60 L.Ed.2d 1404 (1979); United States v. Kim-bell Foods, 440 U.S. 715, 727-28, 99 S.Ct. 1448, 1457-58, 59 L.Ed.2d 711 (1979). Clearly the fact that federal law governs does not always mean that federal courts should fashion a uniform federal rule, even if the federal question involves the scope of a federal statutory right or the interpretation of a phrase in a federal statute. See, e.g., Burks, 441 U.S. at 477, 99 S.Ct. at 1836; DeSylva v. Ballentine, 351 U.S. 570, 580-81, 76 S.Ct. 974, 979-80, 100 L.Ed. 1415 (1956); Reconstruction Finance Corp. v. Beaver County, 328 U.S. 204, 209-10, 66 S.Ct. 992, 995, 90 L.Ed. 1172 (1946). Frequently, state rules of decision will furnish an appropriate and convenient measure of the governing federal law. See Kimbell Foods, 440 U.S. at 728, 99 S.Ct. at 1458; DeSylva, 351 U.S. at 580-81, 76 S.Ct. at 980-81; P. Bator, P. Mishkin, D. Shapiro & H. Wechsler, Hart and Wechsler’s The Federal Courts and the Federal System 768 (1953).
In a case such as this one, which implicates a federal statute, the predominant consideration must he Congressional intent: the key question is whether Congress intended federal judges to develop their own rules or to incorporate state law to decide which “agreementfs]” would be recognized under section 107(e)(1). Cf. Burks, 441 U.S. at 478, 99 S.Ct. at 1837 (looking at what Congress indicated); De-Sylva, 351 U.S. at 580, 76 S.Ct. at 980 (looking to legislative scheme). If Congress had explicitly directed federal judges either to develop uniform federal standards or to adopt state law, then the issue would be settled. See Kimbell Foods, 440 U.S. at 740, 99 S.Ct. at 1464 (noting that the Court’s conclusion under the three-part test it applied could be altered by “congressional directive.”). In the absence of some clear congressional intent, a court must also decide whether formulating a federal rule would be appropriate as a matter of judicial policy under the three-part test established by Kimbell Foods. Under that test, a court must determine the following: (1) whether the issue requires “a nationally uniform body of law”; (2) “whether application of state law would frustrate specific objectives of the federal programs”; and (3) whether “application of a federal rule would disrupt commercial relationships predicated on state law.” Id. at 728-29, 99 S.Ct. at 1458-59 (consolidating various lines of authority into one test). If the federal courts determine that state law should be incorporated as a general matter, this does not necessarily mean that each and every state rule must be adopted — federal courts should still reject specific state rules that are aberrant or hostile to federal interests. See, e.g., Burks, 441 U.S. at 479, 99 S.Ct. at 1837; Johnson v. Railway Express Agency, 421 U.S. 454, 465, 95 S.Ct. 1716, 1722, 44 L.Ed.2d 295 (1975); United States v. Little Lake Misc.e Land Co., 412 U.S. 580, 596, 93 S.Ct. 2389, 2398, 37 L.Ed.2d 187 (1973); DeSylva, 351 U.S. at 580-81, 76 S.Ct. at 979-80; Beaver County, 328 U.S. at 210, 66 S.Ct. at 995.
Bearing these principles in mind, we find ourselves in agreement with the position of the United States, which appears in this action as amicus curiae, that a uniform federal rule should not be developed to govern the issue of whether and when agreements between private “responsible parties” can settle disputes over contribution rights under section 107. As the government points out, section 107(e)(1) expressly preserves agreements to insure, to hold harmless, or to indemnify a party held liable under section 107(a). Absent CERCHA, these contracts would be interpreted under state law. By preserving such agreements, Congress seems to have expressed an intent to preserve the associated body of state law under which agreements between private parties would normally be interpreted. Certainly federal courts need not fashion federal common law to interpret every settlement of liability that arises under federal statutes.
Admittedly, the Congressional intent on whether to fashion a uniform federal rule is not entirely clear. Reference to Kimbell Foods’ three-part test, however, confirms our conclusion. First, we find no reason to think that the issue requires a uniform body of law. Commercial enterprises selling their assets or insuring themselves will normally look to state law to interpret their indemnification provisions, which will generally indemnify the enterprises against a whole host of possible liabilities. Bisuniformity does not seem to impose any particular burden. The cases, cited by the dissent, that express a need for uniform rules of liability under section 107 are simply inapposite to the issue of whether the uniform rules are required for the interpretation of contractual agreements to indemnify for CERCLA liability.
Second, the application of state law to interpret such releases will not frustrate the objectives of CERCLA. Contractual arrangements apportioning CERCLA liabilities between private “responsible parties” are essentially tangential to the enforcement of CERCLA’s liability provisions. Such agreements cannot alter or excuse the underlying liability, but can only change who ultimately pays that liability. Moreover, regardless of how or under what law these agreements are interpreted, the result cannot prejudice the right of the government to recover cleanup or closure costs from any responsible party, including either Mardan, Macmillan, or both. CERCLA § 107(a), 42 U.S.C. § 9607(a) (1982).
The dissent argues that the objectives of CERCLA might be frustrated because parties who inadvertently waive their right to cost-recovery will have less incentive to clean up hazardous waste. This “frustration” seems rather attenuated. First, as we have shown, all responsible parties will be fully liable to the government regardless of the indemnification contracts they have entered into. Second, even under the dissent’s proposed federal rule of decision, a seller would be free to expressly require indemnification of CERCLA claims as a condition of sale and thus lessen the buyer’s incentive to clean up waste to the same extent that a non-express waiver does. Thus, the dissent’s proposed federal rule advances federal objectives only to the extent that those objectives depend upon suits by responsible parties who would inadvertently release their rights to cost-recovery and who are willing to risk possible suit by the government. Whether the frustration of such an attenuated incentive is enough to overcome Congress’ likely intent is doubtful. Moreover, there is nothing to suggest that New York law does not in fact attempt to fulfill the intentions of the parties to a release.
The dissent’s objections to the incorporation of state law seem to be based on an argument that we should adopt a prophylactic rule, requiring releases to explicitly refer to CERCLA, so that we can assure ourselves that there is no chance that parties may manifest an intention to waive their CERCLA claims by mistake or without thinking it through. Dissent at [1464]. Formulating such a federal rule to protect parties against their inadvertent waivers may well be appropriate where the rights waived are created by a federal statute that aims “at rectifying historical inequalities in bargaining power between parties,” Gamewell Mfg. v. HVAC Supply, 715 F.2d 112, 114-16 (4th Cir.1983) (observing that the cases declining to borrow state law to determine the enforceability of releases of federal rights share this feature), or where there are other valid reasons to believe that the federal right at stake will be undermined by waivers obtained through ignorance or through unequal bargaining power. See, e.g., Dice, 342 U.S. at 361-62, 72 S.Ct. at 314 (federal rules govern releases of FELA rights by injured employees); Salmerón, 724 F.2d at 1361 (same for waiver of constitutional and civil rights claims); Taber, 648 F.2d at 1203 (same for § 1983 claims); Parker v. DeKalb Chrysler Plymouth, 673 F.2d 1178, 1180 (11th Cir.1982) (same for claims by car-buyer under the Truth-in-Lending Act); Fulgence v. J. Ray McDermott & Co., 662 F.2d 1207, 1209 (5th Cir.1981) (same for employment discrimination claims under Title VII); Ott v. Midland-Ross Corp., 523 F.2d 1367, 1368-69 (6th Cir.1975) (same for age discrimination claim).
By contrast, nothing in CERCLA suggests that it was intended to offer special protection to unwary purchasers of businesses. Moreover, since CERCLA releases are likely to be entered into by major companies, there is little need for a special federal rule to protect releasors of CERCLA recovery rights from their own ignorance or weak bargaining power. In fashioning a statute to further a federal interest, Congress seldom if ever intends to pursue that interest at any cost. Rather Congress seeks to balance that interest against countervailing considerations, such as the utility of indemnification agreements, which it recognized in section 107(e)(1). “‘[A] state statute cannot be considered “inconsistent” with federal law merely because the statute causes the plaintiff to lose the litigation.’” Burks, 441 U.S. at 479, 99 S.Ct. at 1837 (quoting Robertson v. Wegmann, 436 U.S. 584, 593, 98 S.Ct. 1991, 1996, 56 L.Ed.2d 554 (1978)).
Finally, we are convinced that application of a federal rule such as that advocated by the dissent would disrupt commercial relationships predicated on state law. The sale of any company normally involves the simultaneous transfer of several company-related claims. The claims released in this case for vacation and severance pay and for accounts receivable are illustrative. A seller will normally wish to wipe its slate clean, making some general release a condition of the sale so that the seller can relieve itself of the headaches as well as the benefits of the old business and move on to new ventures. And in doing so, sellers and buyers will normally turn to the extensive body of state law that governs the validity of the release of almost all their other claims. Creating a federal rule to govern CERCLA releases would introduce confusion and uncertainty into these commercial relationships in two respects. One, buyers and sellers would face greater confusion about which body of law to turn to. Two, the creation of a federal rule, as opposed to incorporating a ready-made and fully fleshed out body of state law, would, during the development of that federal rule, leave parties very uncertain about what rule governed CERCLA releases. It seems unlikely that there would have developed any immediate consensus among federal judges for the dissent’s proposed rule or for any other. Absent some special reason to think that buyers of companies that deposit hazardous wastes are in need of our special solicitude and protection, we decline to fashion a federal rule that will undermine the stability of the state law generally governing such commercial transactions.
We thus hold that state law should provide the general content of federal law on the validity of releases of claims for cost-recovery under CERCLA. Because New York law on releases does not in any way appear to be aberrant or hostile to federal interests, we apply New York law in interpreting the Settlement Agreement and the Release.
III
Mardan argues that, under New York law, the district court erred in granting Macmillan’s motion for summary judgment because a disputed issue of material fact exists as to whether the parties intended to include potential CERCLA claims within the terms of the Settlement Agreement and the Release. Mardan argues that extrinsic evidence shows that the parties did not contemplate that the Settlement Agreement or the Release would cover the costs of cleaning up and closing the waste disposal site. Mardan cites three affidavits to the effect that closure and cleanup of the settling pond and land treatment site “were not discussed at all as any part of negotiations leading to the 1981 settlement agreement.” Affidavit of Joseph D. Sharp, H 8; see also Affidavit of William D. Price HH 5-6; Affidavit of Daniel J. Henkin H 4. In addition, Henkin, Chairman and President of Mardan, attested that Mardan made no claim against Macmillan for closure or cleanup costs at the time the Settlement Agreement and the Release were negotiated.
The only extrinsic evidence proffered by Macmillan is the affidavit of William A. Naughton, a Vice President of Macmillan, who recalled that during the negotiations Mardan raised the issue of payments for a potential “effluent disposal” liability at the Nogales plant. Specifically, Mardan requested $112,000 from Macmillan for “corrective action” which might be necessary at the Nogales settling pond. This question apparently remained open for several months until Mardan, just one month before the Settlement Agreement and the Release were executed, dropped its request for reimbursement for “potential effluent disposal liability.” Affidavit of William A. Naughton HIT 7-10. Mardan responds that the “effluent disposal liability” claim did not refer to the possibility of closure and cleanup of the waste disposal site, but referred only to the possibility that a waste pretreatment plant would be required in order to operate the settling pond in conformity with RCRA.
The district court rejected Mardan’s contract interpretation theory, reasoning that the Release’s broad language — “[all claims] arising out of or in any way relating to the Purchase Agreement” — encompassed Mardan’s claim against Macmillan under section 107 in light of several undisputed facts: First, the parties knew of the existence of the settling pond and the hazardous nature of its contents. Second, the parties specifically addressed the possibility that corrective action would be required under RCRA. Finally, CERCLA had been in existence for nearly a year at the time the Settlement Agreement and the Release were executed. In light of these undisputed facts, the district court ruled that, “given the broad and unambiguous language of the general release involved in this case, it must be concluded that Mardan intended to give up all claims which it had or might someday have against C.G.C. and Macmillan in exchange for approximately $995,-000.” 600 F.Supp. at 1057.
We find no error in the district court’s interpretation of the scope of the Settlement Agreement and the Release in light of the proffered extrinsic evidence. Mardan misconstrues the extent to which a releasor may avoid the effect of a general release under New York law. Mardan correctly notes that New York courts may “avoid such a release despite the generality of the release form.” Mangini v. McClurg, 24 N.Y.2d 556, 562, 301 N.Y.S.2d 508, 513, 249 N.E.2d 386, 389-90 (1969) (citations omitted). Mardan also correctly points out that the scope of a release generally depends on “the controversy being settled, and the purpose for which the release is actually given.” Cahill v. Regan, 5 N.Y.2d 292, 157 N.E.2d 505, 509-10, 184 N.Y.S.2d 348 (1959). Mardan, however, provides insufficient support for its contention that the controversy settled by the Settlement Agreement and the Release related solely to certain discrete accounting issues. Mardan’s position is belied by the very terms of both documents. The Settlement Agreement not only absolved Macmillan from liability for claims “based upon or arising out of the Purchase Agreement,” it released Macmillan from all claims “in any way connected” with the Purchase Agreement “or with the transactions contemplated thereby.” The Release reiterated that Macmillan was released from liability for all claims “based upon, arising out of or in any way relating to the Purchase Agreement.” Moreover, the Settlement Agreement states that
certain other claims have been asserted by [Mardan] and Macmillan, each against the other, based upon or arising out of the Purchase Agreement, and the transactions contemplated therein; and the parties are desirous of settling all the aforesaid claims and any other issues between them, (emphasis added).
Thus, the language of both the Settlement Agreement and the Release clearly indicate that the parties intended to settle more than certain discrete accounting issues. This conclusion is further bolstered by the fact that only $213,944 of the $955,000 paid by Macmillan for the Release related to the specific claims referred to by Mardan. Another $781,055 was paid to Mardan for Macmillan’s release from “other claims asserted under the Purchase Agreement.” It is clear that the negotiations leading up to the Settlement Agreement and the Release were not limited to accounting issues, but encompassed a wide variety of disputes relating to the Purchase Agreement, including a claim that defendants should contribute to a waste pretreatment plan which would enable the settling pond to conform to RGRA. Thus, the language releasing Macmillan from all claims by Mardan “based upon, arising out of or in any way relating to the Purchase Agreement” cannot, under its own terms, or through reference to Mardan’s proffered extrinsic evidence, be limited to exclude Mardan’s section 107 claim, which certainly resulted from its acquisition of the property from Macmillan.
A variation on Mardan’s contract interpretation argument is that it was actually entitled to summary judgment itself under New York law because Macmillan failed to satisfy its burden of persuasion because it presented no evidence that the Release was intended to encompass closure and cleanup of the waste disposal site. Because we disagree with Mardan that a release has such a burden under New York law, see Mangini v. McClurg, 24 N.Y.2d 556, 563, 301 N.Y.S.2d 513-14, 249 N.E.2d 386, 390 (1969) (“[r]eleasor ... must sustain the burden of persuasion if he is to establish that the general language of the release ... is to be limited ...”), we reject this claim.
Finally, Mardan makes an argument that the Release should be disregarded in its action for damages under section 107 of CERCLA because it was based upon a mutual mistake of fact, namely the parties were unaware that Mardan would be required to clean up and close the waste disposal site. While New York law generally supports this legal theory, see Mangini v. McClurg, 24 N.Y.2d at 563, 301 N.Y.S.2d at 513, 249 N.E.2d at 390, it makes a sharp distinction between “injuries unknown to the parties and mistake as to the consequence of a known injury.” Id. at 564, 301 N.Y.S.2d at 514-15, 249 N.E.2d at 391. “A mistaken belief as to the nonexistence of a presently existing injury is a prerequisite to avoidance of a release.” Id., 301 N.Y.S.2d at 515, 249 N.E.2d at 391. In this case, however, the parties knew that some corrective action would have to be taken to bring the settling pond into compliance with RCRA. Further, as the district court noted, they had constructive knowledge of CERCLA, and of the RCRA closure regulations. 600 F.Supp. at 1057; see also State ex rel. Abrams v. Solil Management Corp., 128 Misc.2d 767, 491 N.Y.S.2d 243 (1985) (unless contract states otherwise, the law in force at the time the contract was executed becomes a part of the agreement because it is presumed that the parties were aware of the law when the agreement was made). It makes no difference that the required corrective action turned out to be cleaning up and closing the pond rather than building a waste pretreatment facility, because under New York law, “[i]f the injury is known, and the mistake ... is merely as to the consequence, future course, or sequelae of a known injury, then the release will stand.” Mangini, 24 N.Y.2d at 564, 301 N.Y.S.2d at 515, 249 N.E.2d at 391. Thus, given the fact that both parties were aware of the potential for incurring “response costs” under RCRA, Mardan cannot now complain that the nature and extent of those costs were unanticipated.
Finally, the Settlement Agreement as well as the accompanying Release firmly evidences the parties’ intent to end their various disputes over the Nogales facility once and for all. The Settlement Agreement recites that “the parties are desirous of settling all the aforesaid claims and any other issues between them." (emphasis added). Mardan has presented no evidence that would justify a construction of this clear language as anything other than a bargaining for “general peace.” Under New York law, “[w]hen general peace is the consideration [for a release] there can be no mutual mistake as to the extent of the injuries, known or unknown.” Mangini, 24 N.Y.2d at 566, 301 N.Y.S.2d at 516, 249 N.E.2d at 392.
AFFIRMED.
. The Nogales plant and other assets acquired by Mardan had actually been owned and operated by C.G.C. Music, a subsidiary of Macmillan. Mardan named both Macmillan and C.G.C. Music as defendants in this CERCLA action. C.G.C. Music had been dissolved before the action was commenced, but the action was filed within three years of dissolution as required by Del. Code Ann. tit. 8, §§ 259, 278. For convenience, Macmillan and C.G.C. Music will be referred to simply as "Macmillan" throughout this opinion.
. Mardan qualified for interim status by filing a permit application pursuant to section 3005(e) of RCRA and by satisfying requirements set forth at 40 C.F.R. § 5270.70. Section 3005(e) allows a preexisting facility that has applied for a permit to "be treated as having been issued such permit until such time as final administrative disposition of such application is made.” 42 U.S.C. § 6925(e). At about the same time, Mardan also obtained temporary approval from the State of Arizona to operate the facility; that temporary approval was conditioned upon Mardan’s compliance with RCRA regulations then in effect.
. The government argues that the "unclean hands" defense, as applied by the district court, would effectively eviscerate a federal common law right of contribution under CERCLA. Brief for Amicus at 10-14. While we know of no appellate court decision on point, most district courts that have faced the issue have interpreted section 107 of CERCLA to impose, as a matter of federal law, joint and several liability for indivisible injuries with a correlative right of contribution. See, e.g., Colorado v. ASARCO, Inc., 608 F.Supp. 1484 (D.Colorado 1985); Wehner v. Syntex Agribusiness, 616 F.Supp. 27 (E.D. Mo.1985); United States v. Ward, 8 Chem. & Rad.Waste Litig.Rep. 484, 487 (D.N.C. May 14, 1984); United States v. Northeastern Pharmaceutical and Chemical Co., 579 F.Supp. 823, 844-45 (W.D.Mo.1984); United States v. A & F Materials Co., 578 F.Supp. 1249, 1256-57 (S.D.Ill.1984); United States v. Wade, 577 F.Supp. 1326, 1338 (E.D.Pa.1983); United States v. Chem-Dyne, 572 F.Supp. 802, 807 n. 3 (S.D.Ohio 1983). The commentators have also concluded that a federal right of contribution attends CERCLA. See, e.g., Smith, A Right to Contribution in Superfund Cost-Recovery Actions, 8 Chem. & Rad.Waste Litig.Rep. 41 (1984). Note, A Right of Contribution Under CERCLA: The Case for Federal Common Law, 71 Cornell L.Rev. 668 (1986); Note, The Right to Contribution for Response Costs Under CERCLA, 60 Notre Dame Law Review 345 (1985); Note, Generator Liability Under Superfund for Clean-Up of Abandoned Waste Dumpsites, 130 U.Pa.L.Rev. 1229, 1266 n. 184 (1982).
. If parties have intentionally waived their right to cost-recovery, they have almost certainly received some form of consideration in exchange for their waiver that substitutes for the damages they could have otherwise collected.
. Some courts seem to have mistakenly concluded that because federal law governs the release of all federal rights under Dice v. Akron, a uniform federal rule is required. See, e.g., Locafrance U.S. Corp. v. Intermodal Systems Leas ing, 558 F.2d 1113, 1115 (2d Cir.1977); Twentieth Century-Fox Film Corp. v. Winchester Drive-In Theatre, 351 F.2d 925, 928 (9th Cir.1965). After Kimbell Foods, at least, it is clear that the issue of whether federal law governs is distinct from the issue of whether the content of the federal rule should be determined by state law or by the formulation of a uniform federal rule. 440 U.S. at 727, 99 S.Ct. at 1457.
. Even if inadvertent waivers were a concern, the underlying federal interest in cleanup would not be undermined in the same way as the federal interest in protecting rights could have been in the cases above because the threat of governmental suit would still serve as an incentive to clean up. Cf. Three Rivers Motors Co. v. Ford Motor Co
Question: From which district in the state was this case appealed?
A. Not applicable
B. Eastern
C. Western
D. Central
E. Middle
F. Southern
G. Northern
H. Whole state is one judicial district
I. Not ascertained
Answer:
|
sc_casesource
|
021
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court whose decision the Supreme Court reviewed. If the case arose under the Supreme Court's original jurisdiction, note the source as "United States Supreme Court". If the case arose in a state court, note the source as "State Supreme Court", "State Appellate Court", or "State Trial Court". Do not code the name of the state.
ZITTMAN v. McGRATH, ATTORNEY GENERAL, SUCCESSOR TO THE ALIEN PROPERTY CUSTODIAN.
NO. 299.
Argued February 28, 1951.
Decided May 28, 1951.
Joseph M. Cohen argued the cause and filed a brief for petitioner in No. 299.
Henry I. Fillman argued the cause for petitioner in No. 315. With him on the brief was Otto C. Sommerich.
Ralph S. Spritzer argued the cause for respondent. With him on the brief were Solicitor General Perlman, Assistant Attorney General Baynton, James L. Morrisson and George B. Searls.
Mr. Justice Jackson
delivered the opinion of the Court.
These are companion cases to Nos. 298 and 314,- ante, p. 446. Here, the petitioners attached the accounts of the Deutsche Reichsbank with the Federal Reserve Bank of New York. The attachments were levied at the same time as those levied on the Chase Bank accounts, and were also followed by state court actions against the Reichsbank, culminating in default judgments that have not been satisfied because of the Federal Government’s freezing program. The Alien Property Custodian served on the Federal Reserve Bank Vesting Orders similar to those served on the Chase Bank in Nos. 298 and 314. But he also served on the Federal Reserve Bank a “turnover directive” describing the specific property which he required to be “turned over to the undersigned to be held, administered and accounted for as provided by law,” and calling attention to the protection which § 5 (b) of the Trading With the Enemy Act gives for compliance. No such directive was served on the Chase Bank in the companion cases. The Federal Reserve Bank refused to release to him the portion of the accounts that had been subjected to the attachment levies. The Custodian has been sustained by the courts below, as he was in Nos. 298 and 314, on the basis of Propper v. Clark, 337 U. S. 472.
All that we have said in subdivisions numbered I, II, and III in Nos. 298 and 314, respecting the nature of the rights acquired under New York law by an attaching creditor, and the position occupied by those rights consistent with the freezing program, is equally applicable to the attachments here involved. The important distinction between these cases and their companions is in the Vesting Orders issued by the Custodian and the nature of the judgment he has sought in each. The only order issued to the Chase Bank was a “right, title, and interest” Vesting Order, which, as we understand the Custodian to concede, put him in the place of the German banks and left open to judicial determination whether any valid interests as against anyone were created by the attachments. In the litigation involving the Chase Bank, the Custodian sought a declaratory judgment that the freezing program precluded attaching creditors from obtaining any interest in the blocked property good as against the debtors.
In these cases the Custodian pursued a different course, not only in that he served on the Federal Reserve Bank a “turnover directive,” but also in that the relief asked in this case omits any request for a declaration that the attachments are invalid. He asks a decree only that the Custodian is “entitled to possession” of the accounts in their entirety. In other words', in the actions involving the Chase Bank the Custodian stepped into the shoes of the German banks and sought to free their titles of the state liens; here he seeks to step into the shoes of the Federal Reserve Bank as possessor of the credits and funds, leaving unadjudicated the effect of such substitution of custody upon the attaching creditors’ rights.
While the statute under which the funds are to be “held, administered and accounted for” authorizes the vesting of such foreign-owned property in the Custodian and its administration “in the interest of and for the benefit of the United States,” it is not a confiscation measure, but a liquidation measure for the protection of American creditors. It provides for the filing and proving of claims and states that the funds “shall be equitably applied” for the payment of debts. If the Custodian disallows a claim, or if he disallows a claim of priority where claims exceed assets, the claimant may seek relief in the United States District Court for the District of Columbia. The transfer of possession of these funds does not purport to work any automatic deprivation of rights of any class of creditors, but takes over the estate for administration.
In view of these facts, we decide, and decide only, that the Custodian has power to possess himself of these funds and to administer them. To hold otherwise would be incompatible with the federal program. The consequences, if any, that flow from the substitution of the Custodian in place of the Bank as holder of the funds, upon rights derived from valid state court judgments secured by attachment, are not ripe for determination. They may never come into controversy. All questions as to the petitioners’ claims, judgments, or priorities are reserved for decision in the proceedings prescribed by statute.
The power of the United States to take and administer the fund is paramount. The judgment below must, therefore, be
Affirmed.
Mr. Justice Clark took no part in the consideration or decision of these cases.
82 F. Supp. 740; 182 F. 2d 349.
Trading With the Enemy Act of 1917, 40 Stat. 411, as amended, §5 (b) (1), 55 Stat. 839.
§34 (a), 60 Stat. 925.
Id. § 34 (e), (f).
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211. Court of Private Land Claims
Answer:
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songer_civproc1
|
56
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited federal rule of civil procedure in the headnotes to this case. Answer "0" if no federal rules of civil procedure are cited. For ties, code the first rule cited.
SEASON-ALL INDUSTRIES, INC., a corporation, Appellant, v. TURKIYE SISE VE CAM FABRIKALARI, A. S., a corporation, and Seaply Glass Corporation, a corporation.
No. 18014.
United States Court of Appeals, Third Circuit.
Argued Dec. 19, 1969.
Decided April 22, 1970.
Joseph A. Katarincic, Kirkpatrick, Lockhart, Johnson & Hutchinson, Pittsburgh, Pa. (J. Richard Lauver, Pittsburgh, Pa., on the brief), for appellant.
Harold Gondelman, Baskin, Boreman, Sachs, Gondelman & Craig, and John M. Feeney, Pittsburgh, Pa., for appellees.
Before McLAUGHLIN, FREEDMAN and ADAMS, Circuit Judges.
OPINION OF THE COURT
FREEDMAN, Circuit Judge.
This essentially simple case comes to us on a record which is obscure on the ultimate question whether there exists a genuine issue of fact which forbids the entry of summary judgment for the defendants.
This is a diversity action. Plaintiff, a Pennsylvania corporation, sued Seaply Glass Corporation, a New York corporation, which imported and distributed glass, and the Turkiye Sise Ve Cam Fabrikalari A.S., a Turkish corporation, whose principal office is in Turkey, which manufactured glass imported and distributed by Seaply. The plaintiff sought to enjoin an arbitration proceeding which Seaply had begun against it before the American Arbitration Association, and also sought an accounting.
The complaint alleged that the defendants from time to time alone or in concert sold glass to plaintiff and entered into contracts with plaintiff “with respect to the disposition of claims which plaintiff had against either or both of them, and which agreements defendants have breached.”
Seaply filed a motion to dismiss. The motion was sworn to by its president and contained as exhibits a series of “Order Acknowledgements” for sales of glass by Seaply to plaintiff from October 1967 to October 1968. Turkiye is listed in most, but not all, of these orders as the supplier. The orders state that Seaply was acting “as agent only for a foreign principal whose identity has been disclosed,” that acceptance of the order would become effective only on approval by the principal, and that Seaply’s liability was limited to the use of reasonable care in transmitting the order to the foreign principal for acceptance. The orders then provide: “Any controversy arising from this sale shall be settled by and in accordance with the rules of the American Arbitration Association in New York.” Seaply’s motion to dismiss averred that it had filed a demand for arbitration of the controversy between the parties with the American Arbitration Association, and attached a copy of the demand for arbitration. Since the motion contained factual allegations which were not already on the record, it was properly treated under Rule 12(b) as a motion for summary judgment.
The other defendant, Turkiye, filed a motion for judgment on the pleadings because it was not subject to service under Pennsylvania’s long-arm statute, because on the merits the complaint alleged no contract between plaintiff and Turkiye and no breach of a contract by Turkiye, and because Turkiye was not a party in the arbitration proceeding which plaintiff was seeking to enjoin. Since no answer had been filed to the complaint the motion for judgment on the pleadings was improper as such, and it was rightly treated by the court as a motion for summary judgment (see Rule 12(c)).
Additional factual matter was brought on the record by plaintiff’s answers to Seaply’s interrogatories. They suffer from a complicated brevity which renders it difficult to isolate clearly their factual content. They do, however, indicate that there were defects in glass shipped and discussions by plaintiff with representatives of Seaply regarding settlement.
In this state of the record and while interrogatories directed by plaintiff to Seaply and Turkiye separately were still unanswered and motions for protective orders by both Seaply and Turkiye were pending, the court, on May 9, 1969, entered ex parte on Seaply’s motion for summary judgment and its motion for a protective order and on Turkiye’s motion for judgment on the pleadings what is apparently a standard form of order. It required the moving parties to file their briefs within 10 days, and curiously enough, “dismissed” the motions for want of timely prosecution if the briefs were not so filed, and if timely filed provided that the “dismissal” should then be vacated “and the court shall make a further order disposing of said motion or directing what further proceedings shall be had with regard thereto.” Although it is not noted on the docket entries, the defendants’ briefs apparently were filed within the prescribed time, and on June 5, 1969, the court entered another ex parte order reciting their timely filing and directed plaintiff to file its brief in opposition within five days. The order provided that plaintiff’s failure to file its brief in time would be treated as its consent to the relief sought by the motions, but if it was so filed “the Court shall make a further order disposing of said motion or directing what further proceedings shall be had with regard thereto.” On June 27, 1969, plaintiff’s brief apparently having been filed, the court entered another ex parte order in which it recited the filing of briefs on both sides and granted defendants’ motion for summary judgment, dismissed the action and declared Seaply’s motion for protective order moot. The basis of the court’s decision apparently was that plaintiff conceded that it had purchased all the glass involved on orders which contained the arbitration clause, and that this bound the parties to arbitration of their dispute regardless whether it arose directly from the sale or from negotiations which sought to resolve the controversies which arose from the sale.
It is, of course, fundamental that summary judgment, which denies to a litigant his right to a trial, is to be granted only in a clear case. A party’s right to trial, therefore, may not be cut off by a summary judgment if a genuine issue of fact exists whose resolution in his favor on a trial would bar the entry of judgment against him. Since the 1963 amendment to Rule 56, we have fully applied the principle authorizing summary judgment if it is clear from an examination of the pleadings, affidavits, answers to interrogatories and depositions on the record, that no genuine issue of fact exists.
The foundation of the court’s decision is its statement that “it appears to be conceded by plaintiff that all glass sold to plaintiff was sold pursuant to invoices containing the [arbitration] clause.” Plaintiff vigorously denies making any such concession. The record, which alone must guide us, shows that Seaply’s demand for arbitration covered at the most but two of the 12 orders which Seaply attached to its motion to dismiss. On the face of the record, therefore, no arbitration proceeding had been invoked by Seaply on the other 10 orders. A defendant, of course, is not entitled to stay a civil action on a contract because it contains a provision for arbitration which he refuses to invoke. Thus, even if it be assumed, as the court held, that the subsequent settlement discussions are included in the provision for arbitration of “Any controversy arising from this sale,” the record does not show that Seaply sought arbitration on any but two of the 12 orders.
There is even less support for the summary judgment in favor of Turkiye. First, the district court did not decide the jurisdictional question, in the absence of which it is difficult to see why a decision on the merits was reached. Moreover, there is nothing in the orders naming Turkiye as a supplier which shows its agreement to be bound by the arbitration provision, a view which is confirmed by the fact that Seaply alone demanded arbitration and Turkiye is not a party in the arbitration proceeding. Nor does Turkiye appear to have been involved in the settlement discussion so tantalizingly mentioned in plaintiff’s answers to Seaply’s interrogatories. Indeed, these answers allege that Seaply agreed to assist plaintiff in any litigation it would pursue against Turkiye, thus indicating that litigation and not arbitration was the route which they expected plaintiff to take against Turkiye.
Finally, in view of the obscurity in the record regarding the facts which are touched on in the complaint and plaintiff’s answers to Seaply’s interrogatories, we believe the case is peculiarly one in which summary judgment should not have been entered until plaintiff obtained a decision on the protective motion of both Seaply and Turkiye so that if the motions were denied plaintiff would have the benefit of a record containing the factual version of each defendant.
The state of the record also leads to a consideration of the procedure followed in this case. Apparently it is the practice of the district court where a motion for summary judgment is filed to order the moving party to file his brief and on its receipt, if there is some prima facie showing, to require the opposing party to file his brief. The orders set no time for a hearing, although Rule 56(c) requires that a motion for summary judgment must be served at least 10 days before the time “fixed for the hearing,” and authorizes the adverse party to serve opposing affidavits “prior to the day of hearing.” The rule does not contemplate that a motion for summary judgment shall be disposed of on briefs, at least until the moving and adverse parties have had an opportunity to file their respective supporting and answering affidavits, and to supplement them if need be. Here in a factually murky situation, with plaintiff’s efforts to obtain answers to its interrogatories and to take depositions balked by motions for protective orders which were undecided, it was error to enter summary judgment. It is true that on the record as it stood the court was presented with an almost incoherent and contradictory statement of facts in plaintiff’s answers to Seaply’s interrogatories. But summary judgment is not a punishment for the incoherence of a pleading and such a preliminary dismissal of an action without trial is to be made only if it clearly appears that there is no genuine issue of fact to be decided.
Moreover, we believe that it is undesirable in general for a district court to enter summary judgment after receiving briefs and without holding a hearing unless it makes clear in its order that all affidavits and counter-affidavits must be filed with the briefs. It is true that the last paragraph of Rule 78 authorizes a court to expedite its business by a “provision by rule or order for the submission and determination of motions without oral hearing upon brief written statements of reasons in support and opposition.” We need not decide whether this provision is applicable to a motion for summary judgment, which if granted disposes with finality of a claim or a defense. At the least, as a matter of good practice, we believe resort should not be had to this provision on a motion for summary judgment unless it is made clear beyond all doubt that the parties must present their affidavits and counter-affidavits in addition to whatever facts appear in the pleadings, depositions, answers to interrogatories, and admissions on file. Only then will it be proper to determine whether a genuine issue of fact exists which requires a trial. In the usual case it is more appropriate to set a motion for summary judgment down for hearing as Rule 56(c) provides, and to make the date of hearing the time limit for both sides in the presentation of their factual claims. Indeed, it is only in this way that a full opportunity can be afforded for compliance with the provision of Rule 56(c) authorizing the adverse party to serve opposing affidavits “prior to the day of hearing.”
The burden was on the moving parties to demonstrate that on the record they were entitled to summary judgment because it was clear that there existed no genuine issue of fact, and any doubt must be resolved against them. This burden was not satisfied by the present obscure record which makes it impossible to say that no genuine issue of fact exists.
The order of the district court, therefore, will be vacated and the ease remanded for further proceedings.
. The substance of plaintiff’s answers to Seaply’s interrogatories appears in paragraph 2(a) — there is no 2(b) — which reads as follows:
“In the period of approximately November 16 to November 26, 1968, certain discussions took place including Mr. Booth, Frank Gorell and Franklyn R. Gorell in Indiana, Pennsylvania. At that time, the discussions involved compensation or adjustments for defective glass furnished by shipment on the ship ‘Notos’ as well as ‘Neptune.’ No agreement was reached with respect to replacement of 16 carloads of defective glass shipped on the ‘Notos.’ Mr. Booth, on behalf of defendant Seaply, acquiesced in paying for defective glass shipped prior to the ‘Notos’ shipment and for a few items of defective glass removed from the cars and on the premises of defendant and which was shipped on the ‘Notos.’ In addition, defendant Seaply, through its President, Mr. Booth, in the course of those discussions indicated that the dispute would be resolved by (1) credits to plaintiff for defective glass delivered prior to the ‘Notos’ shipment; (2) claims against the insurance carrier without any regard to when the defect arose including defect in manufacture; and, (3) he, Mr. Booth, further agreed that he would assist plaintiff in any litigation that it would pursue against the other defendant to this action, namely, Turkiye Sise Ve Cam Fabrikalari, A.S. It was then left to the plaintiff that he could either seek credits against defendant Seaply, attempt to recover all losses including the 16 carloads on ‘Notos’ by insúranee claim or by proceeding in a lawsuit against the other defendant in this suit. The plaintiff elected the credits.”
. The order reads as follows:
“IT IS ORDERED that the moving party file within ten days from the date of this order a brief in support thereof; and that if said brief be not filed within said period of time, the said motion be and the same hereby is dismissed and overruled and the relief prayed for therein denied, for want of timely prosecution ; provided that if the said brief be filed within said period of time, such dismissal and denial shall thereupon be vacated and cease to be operative or in force, ■ and the Court shall make a further order disposing of said motion or directing what further proceedings shall be had with regard thereto.”
. This is our construction of the court’s order. In fact, its language is more indirect and reads:
“IT IS ORDERED that defendants’ motions [not specifying which] be and the same hereby are granted, and plaintiff’s action dismissed; the motion of Seaply Glass Corporation [apparently the motion for a protective order] hereby becoming moot.”
. United States v. Diebold, Inc., 369 U.S. 654, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962); First National. Bank of Washington v. Langley-Howard, Inc., 391 F.2d 207 (3 Cir. 1968).
. See Lockhart v. Hoenstine, 411 F.2d 455, 458 (3 Cir. 1969); Robin Construction Company v. United States, 345 F.2d 610, 612-614 (3 Cir. 1965).
. See generally, e. g., American Home Assurance Co. v. American Fidelity & Cas. Co., 356 F.2d 690 (2 Cir. 1966); Kanmak Mills v. Society Brand Hat Co., 236 F.2d 240, 250 (8 Cir. 1956); Galveston Maritime Ass’n. v. South Atlantic & Gulf Coast Dist., 234 F.Supp. 250, 251-252 (S.D.Tex.1964); Application of Reconstruction Finance Corp., 106 F.Supp. 358, 361-362 (S.D.N.Y.1952), aff’d. R. F. C. v. Harrison & Crosfield, 204 F.2d 366 (2 Cir.), cert. denied 346 U.S. 854, 74 S.Ct. 69, 98 L.Ed. 368 (1953).
. See Schramm v. Oakes, 352 F.2d 143, 149 (10 Cir. 1965); Arrowsmith v. United Press International, 320 F.2d 219, 221 (2 Cir. 1963); 5 Wright & Miller, Federal Practice and Procedure § 1351 at 563 (1969).
. See Bane v. Spencer, 393 F.2d 108, 109 (1 Cir. 1968); Toebelman v. Missouri-Kansas Pipe Line Co., 130 F.2d 1016, 1022 (3 Cir. 1942). Rule 56(c) was amended in 1963 to expressly include “answers to interrogatories” within the range of materials to be considered by the trial ' court on motion for summary judgment.
. See generally Georgia Southern & F. Ry. Co. v. Atlantic Coast Line R. Co., 373 F.2d 493, 496-498 (5 Cir.), cert. denied 389 U.S. 851, 88 S.Ct. 69, 19 L.Ed.2d 120 (1967); Dredge Corp. v. Penny, 338 F.2d 456, 461-462 (9 Cir. 1964); Enochs v. Sisson, 301 F.2d 125 (5 Cir. 1962).
. See also Rule 43(e).
. Plaintiff argues that in view of Local Rule 4(a) (2) of the Western District of Pennsylvania it had a right to expect notification of a time and place of argument on the defendants’ motions. The relevant paragraph of Local Rule 4(a) (2) reads:
Miscellaneous Motions: These are motions which require notice and a copy thereof to be served on the opposing party or counsel, together with an acceptance of service thereof. The notice shall set forth the time when said motion will be filed with the Clerk of Court. In the event the motion is not consented to by all parties, the Clerk shall thereafter place same on the next appropriate Argument List and sufficient notice in advance shall be given by the Clerk as to the time and place of said Argument.”
Due to our disposition of this case, we need not decide the effect of this local rule on individual orders entered by the court.
. See Hazen v. Southern Hills National Bank of Tulsa, 414 F.2d 778, 780 (10 Cir. 1969); Sarelas v. Porikos, 320 F.2d 827 (7 Cir. 1963), cert. denied 375 U.S. 985, 84 S.Ct. 519, 11 L.Ed.2d 473 (1964); Bagby v. United States, 199 F.2d 233 (8 Cir. 1952); 6 Moore, Federal Practice ¶ 56.14 [1] at 2258 (2d ed. 1966). Compare eases cited supra, n. 9.
. Lockhart v. Hoenstine, 411 F.2d 455-458 (3 Cir. 1969); Janek v. Celebrezze, 336 F.2d 828, 834 (3 Cir. 1964).
Question: What is the most frequently cited federal rule of civil procedure in the headnotes to this case? Answer with a number.
Answer:
|
songer_treat
|
A
|
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.
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ACCURATE WEB, INC, Respondent. Local One, Amalgamated Lithographers of America, Intervenor.
No. 759, Docket 86-4145.
United States Court of Appeals, Second Circuit.
Argued Jan. 30, 1987.
Decided May 6, 1987.
Frederick D. Braid, Mineóla, N.Y. (Rains & Pogrebin, P.C., Mineóla, N.Y., of counsel) for respondent.
John D. Burgoyne, N.L.R.B., Washington, D.C. (W. Christian Schumann, Supervisory Atty., Rosemary M. Collyer, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, N.L.R.B., Washington, D.C., of counsel) for petitioner.
Mark D. Risk, New York City (Michael F. O’Toole, Robinson, Silverman, Pearce, Aronsohn & Berman, New York City, of counsel) for intervenor.
Before CARDAMONE, WINTERS and PRATT, Circuit Judges.
PER CURIAM:
Pursuant to § 10(e) of the National Labor Relations Act (Act), 29 U.S.C. § 160(e) (1982), the National Labor Relations Board (Board), as petitioner, seeks enforcement of its order issued against respondent Accurate Web, Inc., (Employer), compelling recognition of intervenor, Local One, Amalgamated Lithographers of America, (Union). We grant enforcement.
I
In June 1982 a Board director certified the Union as the exclusive collective bargaining representative of the Employer’s production and maintenance employees. The Board denied the Employer’s request for review of the certification. In order to test the certification the Employer then refused to bargain with the Union. In response, the Union filed an unfair labor practices (ULP) charge with the Board alleging a § 8(a)(5) violation of the Act. In March 1983 the Board sustained the charge and, as a remedy, extended the one year certification period to begin on the date the Employer commenced to bargain in good faith. 266 NLRB 487.
Between the commencement and conclusion of the above action, the Union filed other ULP charges against the Employer. A hearing on the complaint was adjourned to allow the parties time to negotiate a settlement. In May 1983 the parties entered into a non-Board settlement agreement in which the Union agreed to withdraw all ULP charges and to seek vacatur of the above NLRB decision. In return, the Employer agreed, inter alia, to bargain in good faith with the Union and not to appeal the NLRB’s decision. The Board agreed to the withdrawal and vacated its decision in July 1983.
After the withdrawal and vacatur, the parties engaged in good faith negotiations for approximately nine and a half months. In June 1984 a majority of the employees filed a decertification petition with the Board and, as a result, the Employer withdrew its recognition of the Union. In July 1984 a Board director, without a hearing, dismissed as untimely the decertification petition. The director interpreted the settlement agreement as extending the certification period from August 1983 to August 1984 and hence concluded that the petition could not be brought before the certification period expired. In November 1984 the Board affirmed the director’s decision.
In order to obtain review of the decertification dismissal, the Employer thereafter refused to bargain with the Union. In response, the Union filed another § 8(a)(5) action with the Board. In September 1985 an AD held that the decision in the decertification proceeding controlled the issue before it under the NLRB’s administrative res judicata doctrine. He also held in the alternative that the non-Board settlement agreement had extended the certification year. The Board adopted the AD’s opinion in April 1986 and ordered the Employer to bargain in good faith with the Union. When the Employer refused, the Board brought this enforcement action.
II
An employer cannot withdraw recognition from a certified union for a reasonable time — usually a one year period— even if the union no longer has majority employee support. Brooks v. NLRB, 348 U.S. 96, 103-04, 75 S.Ct. 176, 181-82, 99 L.Ed. 125 (1954). If the employer withdraws recognition and refuses to bargain in good faith during the insulated certification year, the Board has the power to extend the certification period as a remedy for the § 8(a)(5) violation. NLRB v. All Brand Printing Corp., 594 F.2d 926, 929 (2d Cir.1979). The extended certification year remedy has also been applied to appropriate non-Board settlement agreements. See, e.g., id.
Nothing in the settlement agreement here suggests that the parties intended bargaining for an extended certification year or for any particular time period. The settlement agreement states simply that the Employer will bargain with the Union upon demand. Nevertheless, we view a “silent” non-Board settlement agreement such as this one as extending the certification period for a reasonable time if (1) the agreement was surrounded by sufficient “formalities” or Board involvement or (2) the employer’s promise to bargain was a quid pro quo for the Union’s withdrawal of the § 8(a)(5) charge. Id. at 930-31. We examine each of these possibilities for extending the certification period.
(1) Formalities
If the settlement agreement is surrounded by “formalities” or Board involvement, courts consider the parties more likely to have intended the scope of the bargaining duty contained in their settlement agreement to satisfy the Board standard of a remedial time extension. See, e.g., NLRB v. Vantran Electric Corp., 580 F.2d 921, 924 (7th Cir.1978). Here the Board maintains that the parties’ settlement agreement was surrounded by formalities and Board involvement because it permitted the withdrawal of the charges and the vacatur of its prior decision. We cannot agree. Such a view essentially would convert every non-Board settlement agreement into an agreement “surrounded by formalities” whenever the agreement required the dismissal of § 8(a)(5) charges. That is to say, a union could never withdraw § 8(a)(5) charges pursuant to a non-Board agreement without converting that private settlement into a “Board-approved” settlement because every dismissal requires Board consent.
This result runs counter to Congress’ aim of promoting stable work relations and prompt dispute resolution. Further, in past cases, the level of Board involvement we found to satisfy the formalities test was much higher than that which is presented here. For example in both All Brand, 594 F.2d at 930 and Straus Communications, Inc. v. NLRB, 625 F.2d 458, 463 (2d Cir.1980), the AD was informed of the terms of the settlement and conducted an on the record inquiry into the propriety of the settlement before accepting it. In contrast, the subject agreement was not seen by the AD before approving the dismissal of the charges.
In addition, as the Board argues in its brief,
“[i]f [it] perceived the need to intervene to protect the public interest, the appropriate time for such intervention was when the union requested it to withdraw charges and dismiss the complaint against the Employer. At that time the Board could have refused to dismiss the complaint unless the settlement agreement was amended to include a bargaining obligation for an extended certification year.”
Vantran, 580 F.2d at 925; see also Straus, 625 F.2d at 464, n. 5. The Board’s decision to forego intervention therefore precludes a finding of Board involvement and leaves the interpretation of the settlement agreement primarily to the language and intent of the parties. As a consequence, the parties’ settlement agreement is not “surrounded by formalities.”
(2) Quid Pro Quo
When an employer’s agreement to bargain is the primary reason for a union’s withdrawal of its § 8(a)(5) charge, the exchange includes a duty to bargain for an extended certification year. See, e.g., Vantran, 580 F.2d at 924-25. When it is not, the intent of the parties is less clear and the burden is on the Board seeking enforcement to show that the scope of the bargaining obligation was broader than the literal language of the parties’ agreement. Id. at 925.
Relying on Vantran the Employer argues that its agreement not to appeal the representation decision was the quid pro quo for the Union’s withdrawal of charges. In Vantran, the court held that the employer’s agreement not to prosecute a state court damage action against the Union was the controlling quid pro quo and, therefore, found that the parties did not contemplate an extended certification year. 580 F.2d at 925. Under this analysis, the Employer argues that its agreement not to appeal the Board’s earlier decision should be considered its primary concession and that accordingly the Union is not entitled to a time extension.
While facially appealing, the Employer’s argument is inconsistent with our approach in Straus. In Straus we affirmed the Board’s finding that even though the employer did not explicitly agree to bargain in the settlement agreement, the nature of the concessions made by the employer indicated that the union would not have agreed to withdraw its pending charges without such a commitment. Id. at 464. The Board found that a duty to bargain was the implicit quid pro quo for the withdrawal of charges and that therefore the settlement agreement extended the certification year.
Applying that view to the instant case, the Board found that the Employer’s agreement to bargain was the primary concession triggering a time extension because it concluded from the totality of concessions made by the Employer that the Union would not have withdrawn its charges without such a commitment by the Employer. There is no reason to disturb this factual finding of the Board. Of course, since the Employer has already bargained in good faith for nine and one-half months, the time extension triggered here obligates it to bargain, in good faith, only for the balance of two and one-half months.
Ill
Enforcement of the Board’s order is granted.
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_state
|
44
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the state or territory in which the case was first heard. If the case began in the federal district court, consider the state of that district court. If it is a habeas corpus case, consider the state of the state court that first heard the case. If the case originated in a federal administrative agency, answer "not applicable". Answer with the name of the state, or one of the following territories: District of Columbia, Puerto Rico, Virgin Islands, Panama Canal Zone, or "not applicable" or "not determined".
GALVESTON WHARF CO. v. PETERSON.
(Circuit Court of Appeals, Fifth Circuit.
February 20, 1926.)
No. 4535.
1. Railroads <©=307 (4) — Charge that, If circumstances made tracks crossing end of street going to dock dangerous, failure to maintain watchman might constitute negligence, held proper.
In suit for injuries received at night when crossing defendant’s tracks at end of street going to dock, charge that defendant was not required as matter of law to maintain watchman during night, but that, if circumstances of crossing made it extraordinarily and peculiarly dangerous, they might find that reasonably prudent person would maintain' watchman, and might find defendant negligent because of failure, held proper.
2. Railroads <©=350(5).
Question of negligence of wharf company, owning tracks at end of street going to dock, in not maintaining watchman at night, held for jury.
In Error to the District Court of the Unite'd States for the Southern District of Texas; Joseph C. Hutcheson, Jr., Judge.
Suit by Eric Peterson against the Galveston Wharf Company. Judgment for plaintiff, and defendant brings error.
Affirmed.
Ballinger Mills, of Galveston, Tex. (Terry, Cavin & Mills, of Galveston, Tex., on the brief), for plaintiff in' error.
W. E. Price, of Galveston, Tex., for defendant in error.
Before WALKER, BRYAN, and FOSTER, Circuit Judges.
FOSTER, Circuit Judge.
This was a suit to recover damages for personal injuries suffered by defendant in error. The accident occurred in the city of Galveston at about 10 o’clock p. m., at the end of Twenty-Fifth street. It is in evidence that said street terminates at the harbor opposite the Mallory Dock, and the intervening space is occupied by tracks owned by plaintiff in error, over which freight cars are frequently switched day and night. During the day the public passes freely over the tracks from the end of the street going to the dock.
Defendant in error is a seaman, and at the time of the accident was going to his vessel, which was in dry dock in the harbor, and he expected to find a launch at the Mallory Dock to take him to her. A watchman is employed during the day to warn people crossing the tracks at the end of Twenty-Fifth street, and there was some evidence tending to show that one was also employed at night, but he professed ignorance of the accident. In the course of his charge the judge said:
“It has been pleaded that the defendant was guilty of negligence in not maintaining a watchman at this place. The court instructs you on that point that the defendant is not required as a matter of law to maintain a watchman, either permanently or temporarily, at a crossing, and he is not required to maintain a watchman at all, unless, either permanently or under circumstances of great movement, the place at which the movements are occurring is extraordinarily and unusually dangerous because of the circumstances surrounding the crossing, obstructions, etc., which may be near to or because of its being a populous and used crossing. If, under the circumstances of this ease, the jury finds that the circumstances of that crossing where the accident occurred was one which made it extraordinarily and peculiarly dangerous, then the jury may inquire as to whether a reasonably prudent person under such circumstances would have maintained a watchman. If the jury finds that there was such a condition and a reasonably prudent person would have maintained a watchman there, and if the jury finds that, had sueh a watchman been maintained there, such an injury would not have occurred there, then the jury will find the defendant negligent on that ground, or may find the defendant negligent.”
This is assigned as error. The question of negligence, under all the facts and circumstances of the case, is for the jury. We find no error in the charge complained of.
Other errors assigned are equally without merit.
Affirmed.
Question: In what state or territory was the case first heard?
01. not
02. Alabama
03. Alaska
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. Florida
11. Georgia
12. Hawaii
13. Idaho
14. Illinois
15. Indiana
16. Iowa
17. Kansas
18. Kentucky
19. Louisiana
20. Maine
21. Maryland
22. Massachussets
23. Michigan
24. Minnesota
25. Mississippi
26. Missouri
27. Montana
28. Nebraska
29. Nevada
30. New
31. New
32. New
33. New
34. North
35. North
36. Ohio
37. Oklahoma
38. Oregon
39. Pennsylvania
40. Rhode
41. South
42. South
43. Tennessee
44. Texas
45. Utah
46. Vermont
47. Virginia
48. Washington
49. West
50. Wisconsin
51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer:
|
songer_fedlaw
|
D
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal statute, and if so, whether the resolution of the issue by the court favored the appellant.
UNITED STATES of America, Appellee, v. SOCIETY OF INDEPENDENT GASOLINE MARKETERS OF AMERICA, Appellant. UNITED STATES of America, Appellee, v. AMERADA HESS CORPORATION, Appellant. UNITED STATES of America, Appellee, v. ASHLAND OIL, INC., Appellant. UNITED STATES of America, Appellee, v. KAYO OIL COMPANY, Appellant. UNITED STATES of America, Appellee, v. The MEADVILLE CORPORATION, Appellant. UNITED STATES of America, Appellee, v. PETROLEUM MARKETING CORPORATION, Appellant. UNITED STATES of America, Appellee, v. Robert R. CAVIN, Appellant.
Nos. 77-2515 to 77-2521.
United States Court of Appeals, Fourth Circuit.
Argued Jan. 9, 1979.
Decided December 26, 1979.
Upon Rehearing June 24, 1980.
Widener, Circuit Judge, filed concurring opinion.
K. K. Hall, Circuit Judge, filed opinion in which he dissented in part.
Wilbur D. Preston, Jr., Baltimore, Md. (Nevett Steele, Jr., Gerson B. Mehlman, Whiteford, Taylor, Preston, Primble & Johnston, Baltimore, Md., A. T. Biggers, Continental Oil Company, Houston, Tex., on brief), for appellant Kayo Oil Company.
John H. Lewin, Jr., Baltimore, Md. (Benson E. Legg, Venable, Baetzer & Howard, Baltimore, Md., Adlai S. Hardin, Jr., Mil-bank, Tween, Hadley & McCloy, New York City, Howard B. Myers, Amerada Hess Corporation, Woodbridge, N. J., on brief), for appellant Amerada Hess Corporation.
William Simon, Washington, D. C. (Ray S. Bolze, Roger C. Simmons, Howrey & Simon, Washington, D. C., Robert H. Compton, Ashland Petroleum Company, Ashland, Ky., on brief), for appellant Ashland Oil, Inc.
Robert E. Nagle, Donald T. Bucklin, Washington, D. C. (Wald, Harkrader & Ross, Washington, D. C., on brief), for appellant Robert R. Cavin.
David F. Albright, Baltimore, Md. (Richard M. Kremen, Franklin T. Caudill, Seemes, Bowen & Semmes, Baltimore, Md., on brief), for appellant Petroleum Marketing Corporation.
Philip L. Cohan, David Freeman, Ginsburg, Feldman & Bress, Washington, D. C., on brief, for appellant The Meadville Corporation.
David A. Donohoe, Jay D. Zeiler, Akin, Gump, Strauss, Hauer & Feld, Washington, D. C., on brief, for appellant Society of Independent Gasoline Marketers of America.
Frederic Freilicher, John J. Powers, III, Dept, of Justice, Washington, D. C. (John H. Shenefield, Asst. Atty. Gen., Rodney O. Thorson, James F. Ponsoldt, Dept, of Justice, Washington, D. C., on brief), for appel-lee, United States of America.
Before FIELD, Senior Circuit Judge, and WIDENER and HALL, Circuit Judges.
FIELD, Senior Circuit Judge:
On June 1, 1976, an indictment was returned in the District of Maryland against The Society of Independent Gasoline Marketers of America (“SIGMA”), Amerada Hess Corporation (“Hess”), Ashland Oil, Inc. (“Ashland”), Continental Oil Company (“Continental”), Crown Central Petroleum (“Crown”), Kayo Oil Company (“Kayo”), The Meadville Corporation (“Meadville”), Petroleum Marketing Corporation (“PMC”), Robert R. Cavin (“Cavin”), Norman Goldberg (“Goldberg”), Charles J. Luellen (“Luellen”) and W. H. Burnap (“Burnap”). The indictment, drawn in one count, charged that the defendants had violated Section 1 of the Sherman Act, 15 U.S.C. § 1, prior to its 1974 amendments, by engaging in a conspiracy to fix prices for the retail sale of gasoline in unreasonable restraint of commerce.
After extensive pretrial proceedings, the trial commenced on May 2, 1977, and at the conclusion of the Government’s case the district court granted the motions of three of the individual defendants, Luellen, Goldberg and Burnap, for judgments of acquittal. The trial continued as to the remaining defendants, and on August 30, 1977, the jury returned verdicts of not guilty with respect to Crown and Continental and guilty as to SIGMA, Hess, Ashland, Kayo, Meadville, PMC and Cavin. Judgments of conviction were entered pursuant to the jury’s verdicts and the convicted defendants have appealed.
In an opinion filed December 26,1979, the panel unanimously affirmed the convictions of all of the defendants except Ashland. Similarly, the panel unanimously reversed the conviction of Cavin. With respect to Ashland, a majority of the panel affirmed the conviction, Judge Widener dissenting. Petitions for rehearing and rehearing en banc were filed, and upon the suggestion that the case be reheard en banc less than a majority of the judges in regular active service voted in favor thereof. Accordingly, rehearing en banc is denied. On the petitions for rehearing, however, a majority of the panel are now of the opinion that the conviction of Ashland must be reversed. Additionally, the panel is of the opinion that our disposition of Cavin’s appeal must be modified. To that effect, we withdraw our prior opinion and file the present opinion in lieu thereof.
I
During the period covered by the indictment, and for many years prior thereto, gasoline was sold to motorists through essentially two different types of retail service stations. “Major brand” stations sold the gasoline of major companies, e. g., Exxon, Texaco, Gulf, etc., and in many instances were operated by dealers who were not employees of the major companies. These stations bore brand names that were widely advertised and sold brand name products, including tires, batteries and parts. Many of them offered repair service and accepted recognized company credit cards. “Private brand” stations, on the other hand, offered gasoline under names which were not widely advertised, e. g., Redhead, Kayo, Scatt, etc., and were usually manned by individuals who worked directly for the company which owned the stations. Private brand stations ordinarily offered few products other than gasoline, and spent little money, if any, for media advertising.
With these differences in service, such stations competed with the major brands almost exclusively upon the basis of price. The private brand stations attracted customers from the majors by pricing their gasoline several cents a gallon below that of the major brand stations in the same locale, and as a result the price of major brand gasoline imposed a “ceiling” on private brand prices. In other words, to be competitive the private brand retailer was required to maintain a sufficiently attractive “differential” between his price and that of the majors. Because they were selling gasoline at less than that charged by the majors, the profit margin of the private brand stations was reduced to a marginal level, and the volume of a private brand’s sales was vitally important. In the highly competitive private brand market volume was, of course, significantly related to price. As a result, the private brand company, in the operation of a local station, took into account in pricing its gasoline from day-today not only the price charged in that locale by the major brand stations, but the prices charged by other independents in the same market.
During the period in question the companies which operated private brand stations had available a certain amount of current and accurate data relative to pricing patterns in the major brand gasoline market from a publication known as “Platt’s Oil-gram”. This established trade newspaper conducts price surveys of the majors and publishes such pricing data for major brand markets throughout the country, including advance announcements of upcoming wholesale price moves by the majors. Much information, however, which was vital to the private brand companies could not be gleaned from Oilgram. Oilgram carried little news of major brand retail price behavior on a station-by-station or “street-basis,” and such information was highly important to the private brand companies since their competitive vitality depended upon the ability of their individual retail outlets to undercut at all times the prices charged by neighboring major brand stations. More significantly, Oilgram carried practically no news concerning other private brand retailers’ price behavior, either present or future, nor any analysis of the potential impact of major brand .market behavior upon the private brand market.
In part to fill this void, the private brand retailers formed a trade association called The Society of Independent Gasoline Marketers of America (“SIGMA”). SIGMA’s members were firms and individuals operating private brand stations in various parts of the country. Its board of directors and officers were elected from the membership and its day-to-day operations were managed by a full-time salaried director and his supporting staff. Ordinarily the membership met in convention on a semi-annual basis. SIGMA was characterized at trial by the defendants as an “oral Platt’s Oilgram” for independents. It collected information from various sources (including telephone calls to and from private brand companies in which the companies would discuss upcoming market decisions), and it would relay such information to its members, usually by telephone. Information provided by SIGMA to its members included the behavior of independents and majors in adjoining markets, the impact of wholesale prices on retail price structures, upcoming price moves by other independents, opportunities for increased prices or the perceived need for decreases, and generally such other data which might be of assistance to the members in meeting their competition.
The indictment charged that the defendants, in effectuating the conspiracy to fix prices, “used SIGMA as a clearing house for gasoline pricing information in order to coordinate price increases and to eliminate discounting and settle pricing disputes,” and that they “met at the occasion of SIGMA meetings and discussed pricing strategy, including the coordinated increase of retail gasoline prices and the curtailment and elimination of price cutting and discount practices”. The indictment alleged that this use of SIGMA, supplemented by telephonic or other contact between the several defendants with respect to coordinated price increases and agreements, had resulted in the stabilization of artificial and noncompetitive prices of gasoline, the effect of which was to restrain competition among the defendants and their co-conspirators.
II
In their joint brief the defendants make the prefatory charge that they “were convicted of criminal price fixing for exchanging information on prices,” and assert that no conviction has ever been sustained on such evidence in a highly competitive market of which the participants had a relatively minimal share. In making this contention the defendants draw heavily upon the Supreme Court’s recent decision in United States v. U. S. Gypsum Co., 438 U.S. 422, 98 S.Ct. 2864, 57 L.Ed.2d 854 (1978). Gypsum involved the practice of inter-seller price verification, a practice which is not, in itself, unlawful per se. The Government contended that such an exchange of price information was violative of Section 1 of the Sherman Act if it had either the purpose or the effect of stabilizing prices. The Court held, however, that an effect on prices, without more, would not support a criminal conviction, and that it was necessary to show that such a consequence was intended by the alleged participants.
There is a marked difference between the case before us and the one considered by the Court in Gypsum. Here the indictment charged the defendants with a conspiracy to fix prices, and the “exchange of information” was merely one of the activities by which the alleged agreement was effectuated. “Under the Sherman Act a combination formed for the purpose and with the effect of raising, depressing, fixing, pegging, or stabilizing the price of a commodity in interstate or foreign commerce is illegal per se.” United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 223, 60 S.Ct. 811, 844, 84 L.Ed. 1129 (1940). Since in a price-fixing conspiracy the conduct is illegal per se, further inquiry on the issues of intent or the anti-competitive effect is not required. The mere existence of a price-fixing agreement establishes the defendants’ illegal purpose since “[t]he aim and result of every price-fixing agreement, if effective, is the elimination of one form of competition.” United States v. Trenton Potteries, 273 U.S. 392, 397, 47 S.Ct. 377, 379, 71 L.Ed. 700 (1926).
Ill
The principal challenge of the defendants is that the Government failed to offer sufficient evidence to prove the conspiracy which was charged in the indictment. The indictment defined the geographical area of the conspiracy as the “Middle Atlantic states of New York, Pennsylvania, New Jersey, Delaware, Maryland and Virginia, as well as the District of Columbia. The defendants maintain that it was necessary for the Government to demonstrate a single continuing conspiracy to fix gasoline prices throughout the entire Middle Atlantic region, and contend that the only evidence of the area-wide coordination of price moves related to general increases in November, 1970, July, 1971, and August of 1972. The defendants acknowledge that there were area-wide increases on those occasions, but assert that the evidence failed to show that they were the result of any price-fixing agreement. On the contrary, they suggest that the evidence clearly showed that the price moves on these three occasions were the result of economic forces at work in the market place over which the defendants had no possible control.
The defendants argue that other than those three occasions, the Government’s evidence, at best, proved nothing but a series of “local and isolated incidents occurring within the Middle Atlantic states, involving some of the defendants and co-conspirators at different, and shorter, periods of time.” Even if we were to accept the defendants’ criticism of the probative quality of the evidence on the three area-wide increases, we think the Government’s evidence with respect to the various local markets was proper for the consideration of the jury. Under the indictment the conspiracy embraced an agreement not only to fix prices on an area-wide basis, but also to establish prices in local markets within the region and to effectuate price changes on a coordinated basis. The Government’s evidence of the single conspiracy implemented in this manner was not merely circumstantial in nature. The Government’s witnesses, many of whom were employed by the corporate appellants, testified concerning the nature and intent of their pricing communications, and their testimony was augmented in many respects by the contemporaneous records of the defendants. Our review of the record persuades us that the evidence was sufficient to support the conclusion of the jury that the defendants were working together for the accomplishment of their common purpose to fix prices within the geographical area described in the indictment.
We are further of the opinion that the court’s instructions to the jury were consistent with the indictment. The court instructed the jury that the defendants were charged with a “single, continuing conspiracy” to fix prices of gasoline in the Middle Atlantic states and, adverting to the evidence with respect to local pricing incidents, emphasized that “if you find that a defendant engaged in isolated incidents of gasoline price fixing, but was not a party to a single overall conspiracy covering the six-state area and the District of Columbia area, you must find that defendant not guilty of the matters charged in the indictment.” This language, we think, made it crystal clear to the jury that their consideration of the evidence should be addressed to the ultimate issue of a single overall conspiracy.
IV
Defendants also claim that there was a fatal variance of proof from the original indictment, the bill of particulars, and the pre-trial stipulation of the parties. Much of what we have said with respect to the sufficiency of the evidence applies equally to this contention of the defendants which, in a large degree, is predicated upon their argument that the indictment required a showing of continuous area-wide price manipulation. As we have noted, there was substantial evidence to support the jury’s finding of guilt and, assuredly, the defendants were not convicted upon a charge that was not specified in the indictment, nor were they uninformed of the charge against them. Additionally, the charges and specifications found within the four corners of the indictment, the bill of particulars, and the pre-trial stipulation not only informed the defendants of the charges against them, but are sufficiently clear to allow the defendants to assert double jeopardy in the event of any future prosecution for the same conduct.
V
We find no merit in the defendants’ charge that the trial court improperly denied their request for a more detailed bill of particulars. Pursuant to a stipulation entered into five months prior to trial, the Government supplied the defendants with copies of all grand jury testimony, access to all documents subpoenaed from non-defendants; all documents voluntarily submitted to the Government by third parties in the course of the investigation; and all available Brady material. In further compliance with the stipulation the defendants received copies of all trial exhibits thirty days prior to trial, as well as a list of intended witnesses and Jencks Act material fourteen days prior to trial. In the light of this extensive disclosure by the Government there was no abuse of discretion by the trial court in declining to require the Government to supply the further information requested by the defendants. See United States v. Schembari, 484 F.2d 931 (4 Cir. 1973).
VI
The Government’s case against the defendant, Ashland, was based primarily upon the theory that Ashland exercised direct control over the retail operations of five of its subsidiary corporations, including Payless Stations, Inc. (“Payless”). One of the Government’s principal witnesses on the question of Ashland’s control was a former vice-president of Payless, who was in charge of its pricing for the period from 1963 through 1973, and who was employed by the company from 1956 through December of 1973. This witness provided direct testimony of Ashland’s control over its subsidiaries. His testimony also included other information regarding the participation of Ashland and Payless in the conspiracy and the relationship of Payless with SIGMA.
This key witness had been hospitalized for psychiatric problems on two separate occasions in Our Lady of Peace Hospital in Louisville, Kentucky, and counsel for Ash-land subpoenaed the hospital records. They were produced by the hospital administrator who was directed to deliver them to the district judge. After examining the records in camera, the judge advised counsel that they reflected two periods of hospitalization, the first being from July 26 to August 29, 1966, and the second from November 20 until December 24,1968 and that the hospitalizations involved “a mental disorder or illness at that time.”
Concluding that the disclosure of the records was within his discretion, the district judge declined to deliver them to counsel for the reason, among others, that he did “not know to what extent the Government’s examination of the witness will include questioning during the relative period” (App.Vol. 3, at 777, 778). In making this ruling, however, the district judge stated that he was not foreclosing counsel for Ash-land from questioning the witness about the two periods of hospitalization, but that he would rule on the questions as the cross-examination of the witness developed.
The hospital records were sealed by the district judge and after this appeal was filed Ashland moved this court for leave to examine such records. The motion was denied with the provision that counsel for Ashland might renew the motion at the time of oral argument. Following oral argument we granted Ashland’s counsel access to the records and they were jointly examined by counsel for Ashland and the Government. Based on this examination of the hospital records, with leave of the court, both Ashland and the Government filed supplemental briefs on the issue of the relevancy of these records.
Counsel for Ashland contends that in denying access to the hospital records the trial court prejudicially impaired Ashland’s ability to effectively cross-examine the witness. Ashland argues, among other things, that the hospital records were significant for the purpose of evaluating the witness’ perceptive ability during the period in question and suggests, for instance, that if the witness were suffering from paranoia, he might have taken an irrational view of his communications with Ashland and interpreted simple inquiries as commands or binding directives.
As we have noted, the first period of the witness’ hospitalization was from July 26 to August 29 of 1966, which was prior to Ash-land’s acquisition of Payless and also prior to the alleged conspiracy. However, the second period of hospitalization from November 20, 1968, to December 21, 1968, fell within the period of the conspiracy which was alleged to have existed from at “at least as early as 1967 * * * and continuing thereafter until November 1974.”
The record discloses that the vice-president in question was admitted to the hospital on the first occasion because of work-related problems. Significantly, the 1966 records show that a “supervisor” at work brought him to the hospital, and that he believed that “people at work were plotting against him.” The official diagnosis indicated that his problems stemmed from his employment rather than being home-related. The 1968 records show that he was “manic depressed and admitted in psychotic state.” The records also state that he “still tends to push himself,” and contained observations that he was “delusional and hallucinatory with poor judgment and insight.” Although the 1968 records do not specifically state that this was a continuation of his work-related problems, the jury might reasonably have drawn such an inference had the contents of the records been disclosed to them during the cross-examination of the witness. The official record incident to the 1968 visit state the1 final diagnosis as “Schizophrenic Reaction, Schizo-affective Type.” On that occasion the “mental status examination” reflected that the patient was manic in behavior and quite talkative, and that he spoke of his experience with God.
It occurs to us that the hospital records should have indicated to the district court that the witness’ hospitalization in 1966 was work-related and that'it was quite probable that his 1968 illness was of a similar nature. The records should also have indicated to the court that the witness’ judgment during both periods of illness was seriously impaired, and that a jury could have concluded that his ability to make rational observations was highly questionable. The records would further indicate that the patient had not fully recovered when he was discharged from the hospital in 1968 since they point out that his condition required further psychiatric treatment and continued medication.
Bearing in mind that the case against Ashland was based upon its alleged direct control over the retail operations of its subsidiaries, including Payless, it is clear that the testimony of the former vice-president was vital to the Government’s case. Ash-land had acquired control of Payless in 1967 and the witness testified that “Ashland, from the time that they acquired the company [Payless] until the time that I left, assumed gradually more and more control.” At another point, in testifying concerning Ashland’s control of prices of Payless the witness stated “this was a growing thing that started in 1968, when Ashland bought it and extended up until at the end, when they were saying what and where and how to price, not just because of the shortage of gasoline, but because they were taking direct control from Ashland’s offices in Ash-land, Kentucky.” It should be noted that during at least a part of this period in 1968 about which the witness testified, he was experiencing acute mental problems with a hospital record which disclosed that he was “delusional and hallucinatory with poor judgment and insight,” and was “secluded for his own welfare.” Despite this fact, the court forbade Ashland from reviewing the hospital records or putting them to any effective use in the cross-examination of the witness.
Even if it is fair to assume that the hospital records had no direct bearing upon the witness’ mental capacity at the time he testified, they were unquestionably relevant in regard to his perception of the events involving his work at Payless during the time of his unfortunate illness, and had a significant bearing upon his ability to testify at trial concerning his recollection of those events. United States v. Partin, 493 F.2d 750 (5 Cir. 1974), is the leading case in this field, and is quite similar to the case before us. In that case, one Rogers was a key government witness, just as the former vice-president was here. Rogers had been admitted to a Veterans Administration Hospital for treatment for mental illness. The hospital record revealed that Rogers had stated he was having auditory hallucinations and at times he thought he was some other person. The trial court rejected the admission of the hospital record either as a predicate for cross-examination or as a basis upon which another psychiatrist could have given an opinion as to the mental state of the witness Rogers as that may have had an effect on Rogers’ ability to see and hear accurately during the period in which the events occurred about which he was testifying.
The court of appeals reversed the conviction because of the trial court’s error in failing to admit the hospital records, reasoning at page 762:
“It is just as reasonable that a jury be informed of a witness’ mental incapacity at a time about which he proposes to testify as it would be for the jury to know that he then suffered an impairment of sight or hearing. It all goes to the ability to comprehend, know, and correctly relate the truth.”
And again on page 763 appears the following:
“Partin [the defendant] had the right to attempt to challenge Rogers’ credibility with competent or relevant evidence of any mental defect or treatment at a time probatively related to the time period about which he was attempting to testify.”
To the same effect are United States v. Hiss, 88 F.Supp. 559 (S.D.N.Y.1950), and statements in United States v. Honneus, 508 F.2d 566, 573 (1 Cir. 1974), cert. denied, 421 U.S. 948, 95 S.Ct. 1677, 44 L.Ed.2d 101 (1975); Sinclair v. Turner, 447 F.2d 1158, 1163 (10 Cir. 1971), cert. denied, 405 U.S. 1048, 92 S.Ct. 1329, 31 L.Ed.2d 590 (1972); Ramseyer v. General Motors Corp., 417 F.2d 859, 863 (8 Cir. 1969); United States v. Allegretti, 340 F.2d 254, 257 (7 Cir. 1964), cert. denied, 381 U.S. 911, 85 S.Ct. 1531, 14 L.Ed.2d 433 (1965).
In United States v. Figurski, 545 F.2d 389 (4 Cir. 1976), we had occasion to determine whether the contents of a protected report about a key prosecution witness should have been disclosed to defense counsel, and stated:
“If the report contains only material impeaching the witness, disclosure is required only when there is a reasonable likelihood of affecting the trier of the fact. Whether there is such a likelihood depends upon a number of factors such as the importance of the witness to the government’s case, the extent to which the witness has already been impeached, and the significance of the new impeaching material on the witness’ credibility.”
Id., at 391-92. As discussed above, the former vice-president of Payless was the key government witness. Although the defense presented the testimony of two witnesses that contradicted his testimony regarding Ashland’s control over its subsidiaries, the ability of defense counsel to impeach him regarding his ability to properly perceive events about which he testified was severely limited by counsel’s inability to examine the hospital records. We can think of no more relevant or significant material than a hospital record indicating that a witness who is testifying against his former employer had been under treatment for mental illness which rendered him at that time delusional and hallucinatory with poor judgment and insight. Although a trial court should seek to prevent the disclosure of embarrassing, irrelevant information concerning a witness, it is an abuse of discretion to preclude defense counsel from obtaining relevant information, and the witness’ privacy must yield to the paramount right of the defense to cross-examine effectively the witness in a criminal case. See Davis v. Alaska, 415 U.S. 308, 319, 94 S.Ct. 1105, 1111-1112, 39 L.Ed.2d 347 (1974).
Upon careful consideration, we are of the opinion that the action of the district court in denying Ashland access to the hospital records for its use in cross-examination of the former vice-president was so prejudicial that Ashland is entitled to reversal and a new trial.
VII
With the exception of Ashland, we affirm the convictions of the other corporate appellants. We think, however, that assurances of immunity given to Robert Cavin during the grand jury’s investigation and upon which he relied require that his conviction be set aside.
The grand jury investigation was initiated about November 18, 1974, under the direction of Rodney A. Thorson of the Antitrust Division of the Department of Justice. On December 23, 1974, Cavin and Richard Reynolds, a fellow employee of SIGMA, were subpoenaed to testify before the grand jury and were jointly notified that they should appear in Baltimore on January 7, 1975. Reynolds and Cavin immediately contacted David A. Donohoe, who also represented SIGMA, and arranged to meet with him on January 2, 1975. Donohoe then called Thorson and inquired whether either Cavin or Reynolds were targets of the grand jury investigation. According to Donohoe, Thorson told him “not to worry” because Thorson “was obtaining immunity orders for both Mr. Cavin and Mr. Reynolds and that both would be testifying under a grant of immunity.” Based upon Thorson’s representation Donohoe concluded that he should suggest to Cavin and Reynolds that they obtain other counsel. In Thorson’s recollection of the conversation with Dono-hoe, he denied making any “promise” that Cavin and Reynolds would receive immunity but recalled stating that he would obtain immunity orders for both if they intended to claim the Fifth Amendment. Thorson also acknowledged that he had requested immunity authorization for both witnesses at about the time he issued subpoenas for their appearance. Thorson also discussed with Donohoe his possible conflict of interest since he was counsel for SIGMA and suggested that Donohoe secure other counsel for Cavin and Reynolds.
At their meeting on January 2, 1975, Do-nohoe told Cavin and Reynolds of Thorson’s assurance that they were to receive immunity, and advised them to obtain other counsel in order to avoid any possible conflict of interest. After some discussion, Do-nohoe recommended that Cavin and Reynolds consider retaining Donald T. Bucklin. Bucklin met with Cavin and Reynolds at Donohoe’s office on that same day and was retained by them. Donohoe repeated to Bucklin the representations concerning immunity that Thorson had made to him. In the light of this information Bucklin discussed with Cavin and Reynolds their rights under a grant of immunity and they were specifically advised of the importance of testifying fully and honestly in order to obtain the maximum protection under 18 U.S.C. § 6001, et seq.
Shortly after the start of a joint briefing session with Cavin and Reynolds on the afternoon of January 2nd, Bucklin called Thorson to advise him of his representation of the two witnesses and to set up a meeting on January 3rd. During this conversation Thorson confirmed the assurance that both Cavin and Reynolds would receive immunity, and was advised by Bucklin that based upon this assurance he perceived no conflict in his joint representation. Thor-son agreed that no conflict existed. While Thorson later denied discussing the question of conflict with Bucklin, he did acknowledge that he had repeated his earlier assurance that he would obtain immunity orders if the witnesses intended to claim the Fifth Amendment. On this point Thorson testified before the district court as follows:
THE COURT: Did you state that he would get immunity; he would testify pursuant to an immunity order?
MR. THORSON: Yes; yes, I did state that.
THE COURT: Can you restate that to me to the best of your recollection as to when it occurred and what was said and to whom.
MR. THORSON: I stated that initially in the telephone conversation preceding the January 3rd meeting in the context that if it is their intention to claim the Fifth Amendment I will obtain an immunity order. And I explained, expressly, that I had no intentions of having the Government go to the expense of having these people come to Baltimore from St. Louis, and then claim the Fifth Amendment and then I’d send them home. That’s why I wanted to know what their intention was, and I did not find that out until the meeting on Friday. [January 3],
(App.Vol. 18, at 15,225 and 15,226.)
During the initial joint interview with Bucklin on January 3rd Cavin and Reynolds refreshed each others recollections, supplemented their respective comments and responses, and corrected each others memory of events, dates and names of people with respect to incriminating evidence. On January 3,1975, Donohoe and Bucklin, together with another attorney, met with Thorson and other prosecutors in the Department of Justice. At this meeting Thorson agreed to obtain immunity orders prior to the grand jury appearances of Cavin and Reynolds based upon the representations that both witnesses would claim their Fifth Amendment privilege.
Subsequent to the meeting on January 3rd, a conflict developed in Bucklin’s schedule for January 7th, and Terry F. Lenzner was brought into the ease to represent Ca-vin and Reynolds. On January 6th Thorson called Lenzner and advised him that the appearance of the two witnesses was postponed until January 8th. During that conversation Thorson again confirmed that both witnesses would receive immunity, and it was agreed that the attorneys would meet on the morning of January 8th and proceed to the supervisory judge’s chambers for the signing of the immunity orders. At about 7:30 p. m. on that evening Thorson called Lenzner at his home and advised him that the subpoena for Cavin was being can-celled. The reason given by Thorson for the cancellation was a scheduling problem and Lenzner was told that he would be advised if and when Cavin’s appearance was rescheduled.
Under date of January 7, 1975, Lenzner advised Thorson by letter that his representation of Cavin and Reynolds was based upon Thorson’s assurance that both individuals were to testify under a grant of immunity on the same day, and that because of a possible conflict of interest resulting from the cancellation of Cavin’s subpoena, Lenz-ner was withdrawing from further representation of Cavin. Lenzner was unable to advise Cavin of these developments since both Cavin and Reynolds were en route to Washington. Cavin expressed some concern about the postponement but was assured by Lenzner that Thorson had indicated it was due only to a scheduling problem.
At the grand jury session on January 8th Thorson commenced his examination of Reynolds concerning SIGMA documents without an immunity order, whereupon Reynolds refused to answer “on the grounds that it violates the agreement between the Government and my counsel that I would be questioned only after receiving immunity and that I would be granted immunity today before testifying.” Thorson then called upon Donohoe to produce someone to identify the SIGMA records, and the following exchange took place:
MR. THORSON: Well, do I understand that you, as counsel for SIGMA are refusing on behalf of SIGMA to produce someone—
MR. DONOHOE: No, I’m not.
MR. THORSON: —from that association to come here and testify, take an oath and testify as to the document production?
MR. DONOHOE: I think you know perfectly well what I’m saying. I brought two people to this City pursuant to subpoenas that you had directed, so I had two people who could have testified with respect to these documents, but because the commitments that you had made to these two individuals have not been kept, I’m no longer able to go get a third or fourth or fifth person. That’s a situation which is not of my making.
MR. THORSON: Do I understand that you are refusing at this juncture to provide a person to make that production?
MR. DONOHOE: All I’m saying is that there are two people that have — that I have brought that are capable to do that, but I’m willing to assure you that it won’t do you any good because you failed to keep your commitment to obtain a proper order from the Court. You can take Mr. Reynolds or Mr. Cavin in here, but it’s not going to do any good.
MR. THORSON: Mr. Donohoe, I think you can take SIGMA’s documents with you now and would you so instruct, if he is your client, would you instruct Mr.
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:
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court whose decision the Supreme Court reviewed. If the case arose under the Supreme Court's original jurisdiction, note the source as "United States Supreme Court". If the case arose in a state court, note the source as "State Supreme Court", "State Appellate Court", or "State Trial Court". Do not code the name of the state.
SAN REMO HOTEL, L. P., et al. v. CITY and COUNTY OF SAN FRANCISCO, CALIFORNIA, et al.
No. 04-340.
Argued March 28, 2005
Decided June 20, 2005
Paul F. Utrecht argued the cause for petitioners. With him on the briefs was Andrew M. Zacks.
Seth P. Waxman argued the cause for respondents. With him on the brief were Andrew W. Schwartz, Fran M. Layton, Ellison Folk, Edward C. DuMont, and Therese M. Stewart
Briefs of amici curiae urging reversal were filed for- Defenders of Property Rights et al. by Robert P. Parker, Nancie G. Mamulla, Roger J. Mamulla, and Michael E. Malamut; for Equity Lifestyle Properties, Inc., et al. by Elliot L. Bien, Edith R. Matthai, and Steven S. Fleischman; for the Washington Legal Foundation et al. by Daniel J. Popeo and Richard A. Samp; and for Elizabeth J. Neumont et al. by Eric Grant.
Briefs of amici curiae urging affirmance were filed for the State of New Jersey et al. by Peter C. Harvey, Attorney General of New Jersey, Patrick DeAlmeida, Assistant Attorney General, and Brian Weeks, Deputy Attorney General, and by the Attorneys General for their respective States as follows: John W. Suthers of Colorado, M. Jane Brady of Delaware, Mark J. Bennett of Hawaii, J. Joseph Curran, Jr., of Maryland, Jeremiah W. (Jay) Nixon of Missouri, Mike McGrath of Montana, W. A Drew Edmond-son of Oklahoma, and Darrell V. McGrow, Jr., of West Virginia; for the State of New York et al. by Eliot Spitzer, Attorney General of New York, Caitlin J. Halligan, Solicitor General, Peter H. Lehner, Chief Assistant Attorney General, Gregory Klass, Assistant Solicitor General, and John J. Sipos and Susan L. Taylor, Assistant Attorneys General, Richard Blu-menthal, Attorney General of Connecticut, and William H. Sorrell, Attorney General of Vermont; for the Community Rights Counsel et al. by Timothy J. Dowling; for the Conference of Chief Justices by John D. Echeverría; and for the National Association of Counties et al. by Richard Ruda and James I. Crowley.
Briefs of amici curiae were filed for the National Association of Home Builders by Kenneth B. Bley, Mary V. DiCrescenzo, Duane J. Desiderio, and Thomas J. Ward; for the Pacific Legal Foundation et al. by Meriem L. Hubbard and R. S. Radford; for the Honorable Steve Chabot by Timothy S. Hollister; for Franklin P. Kottschade by Michael M. Berger; and for Evandro S. Santini et al. by Everett E. Newton.
Justice Stevens
delivered the opinion of the Court.
This case presents the question whether federal courts may craft an exception to the full faith and credit statute, 28 U. S. C. § 1738, for claims brought under the Takings Clause of the Fifth Amendment.
Petitioners, who own and operate a hotel in San Francisco, California (hereinafter City), initiated this litigation in response to the application of a city ordinance that required them to pay a $567,000 “conversion fee” in 1996. After the California courts rejected petitioners’ various state-law takings claims, they advanced in the Federal District Court a series of federal takings claims that depended on issues identical to those that had previously been resolved in the state-court action. In order to avoid the bar of issue preclusion, petitioners asked the District Court to exempt from § 1738’s reach claims brought under the Takings Clause of the Fifth Amendment.
Petitioners’ argument is predicated on Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U. S. 172 (1985), which held that takings claims are not ripe until a State fails “to provide adequate compensation for the taking.” Id., at 195. Unless courts disregard § 1738 in takings cases, petitioners argue, plaintiffs will be forced to litigate their claims in state court without any realistic possibility of ever obtaining review in a federal forum. The Ninth Circuit’s rejection of this argument conflicted with the Second Circuit’s decision in Santini v. Connecticut Hazardous Waste Management Serv., 342 F. 3d 118 (2003). We granted certiorari to resolve the conflict, 543 U. S. 1032 (2004), and now affirm the judgment of the Ninth Circuit.
I
The San Remo Hotel is a three-story, 62-unit hotel in the Fisherman’s Wharf neighborhood in San Francisco. In December 1906, shortly after the great earthquake and fire destroyed most of the City, the hotel — then called the “New California Hotel” — opened its doors to house dislocated individuals, immigrants, artists, and laborers. The City officially licensed the facility to operate as a hotel and restaurant in 1916, and in 1922 the hotel was given its current name. When the hotel fell into financial difficulties and a “dilapidated condition” in the early 1970’s, Robert and Thomas Field purchased the facility, restored it, and began to operate it as a bed and breakfast inn. See San Remo Hotel, L. P. v. City and County of San Francisco, 100 Cal. Rptr. 2d 1, 5 (Cal. App. 2000) (officially depublished).
In 1979, San Francisco’s Board of Supervisors responded to “a severe shortage” of affordable rental housing for elderly, disabled, and low-income persons by instituting a moratorium on the conversion of residential hotel units into tourist units. San Francisco Residential Hotel Unit Conversion and Demolition Ordinance (hereinafter Hotel Conversion Ordinance or HCO) §§41.3(aHg), App. to Pet. for Cert. 195a-197a. Two years later, the City enacted the first version of the Hotel Conversion Ordinance to regulate all future conversions. San Francisco Ordinance No. 330-81, codified in §41.1 et seq. Under the 1981 version of the HCO, a hotel owner could convert residential units into tourist units only by obtaining a conversion permit. And those permits could be obtained only by constructing new residential units, rehabilitating old ones, or paying an “in lieu” fee into the City’s Residential Hotel Preservation Fund Account. See §§41.12-41.13, App. to Pet. for Cert. 224a-231a. The City substantially strengthened the HCO in 1990 by eliminating several exceptions that had existed in the 1981 version and increasing the size of the “in lieu” fee hotel owners must pay when converting residential units. See 145 F. 3d 1095,1099 (CA9 1998).
The genesis of this protracted dispute lies in the 1981 HCO’s requirement that each hotel “file an initial unit usage report containing” the “number of residential and tourist units in the hotel[s] as of September 23,1979.” § 41.6(b)(1), App. to Pet. for Cert. 206a. Jean Iribarren was operating the San Remo Hotel, pursuant to a lease from petitioners, when this requirement came into effect. Iribarren filed the initial usage report for the hotel, which erroneously reported that all of the rooms in the hotel were “residential” units. The consequence of that initial classification was that the City zoned the San Remo Hotel as “residential hotel” — in other words, a hotel that consisted entirely of residential units. And that zoning determination ultimately meant that, despite the fact that the San Remo Hotel had operated in practice as a tourist hotel for many years, 145 F. 3d, at 1100, petitioners were required to apply for a conditional use permit to do business officially as a “tourist hotel,” San Remo Hotel, L. P. v. City and County of San Francisco, 27 Cal. 4th 643, 654, 41 P. 3d 87, 94 (2002).
After the HCO was revised in 1990, petitioners applied to convert all of the rooms in the San Remo Hotel into tourist use rooms under the relevant HCO provisions and requested a conditional use permit under the applicable zoning laws. In 1993, the City Planning Commission granted petitioners’ requested conversion and conditional use permit, but only after imposing several conditions, one of which included the requirement that petitioners pay a $567,000 “in lieu” fee. Petitioners appealed, arguing that the HCO requirement was unconstitutional and otherwise improperly applied to their hotel. See id., at 656, 41 P. 3d, at 95. The City Board of Supervisors rejected petitioners’ appeal on April 19,1993.
In March 1993, petitioners filed for a writ of administrative mandamus in California Superior Court. That action lay dormant for several years, and the parties ultimately agreed to stay that action after petitioners filed for relief in Federal District Court.
Petitioners filed in federal court for the first time on May 4, 1993. Petitioners’ first amended complaint alleged four counts of due process (substantive and procedural) and takings (facial and as-applied) violations under the Fifth and Fourteenth Amendments to the United States Constitution, one count seeking damages under Rev. Stat. § 1979, 42 U. S. C. § 1983, for those violations, and one pendent state-law claim. The District Court granted respondents summary judgment. As relevant to this action, the court found that petitioners’ facial takings claim was untimely under the applicable statute of limitations, and that the as-applied takings claim was unripe under Williamson County, 473 U. S. 172.
On appeal to the Court of Appeals for the Ninth Circuit, petitioners took the unusual position that the court should not decide their federal claims, but instead should abstain under Railroad Comm’n of Tex. v. Pullman Co., 312 U. S. 496 (1941), because a return to state court could conceivably moot the remaining federal questions. See App. 67-68; see also 145 F. 3d, at 1101. The Court of Appeals obliged petitioners’ request with respect to the facial challenge, a request that respondents apparently viewed as an “outrageous act of chutzpah.” Id., at 1105. That claim, the court reasoned, was “ripe the instant the 1990 ECO was enacted,” id., at 1102, and appropriate for Pullman abstention principally because petitioners’ “entire case” hinged on the propriety of the planning commission’s zoning designation — the precise subject of the pending state mandamus action, 145 E 3d, at 1105. The court, however, affirmed the District Court’s determination that petitioners’ as-applied takings claim — the claim that the application of the HCO to the San Remo Hotel violated the Takings Clause — was unripe. Because petitioners had failed to pursue an inverse condemnation action in state court, they had not yet been denied just compensation as contemplated by Williamson County. 145 F. 3d, at 1105.
At the conclusion of the Ninth Circuit’s opinion, the court appended a footnote stating that petitioners would be free to raise their federal takings claims in the California courts. If, however, they wanted to “retain [their] right to return to federal court for adjudication of [their] federal claim, [they] must make an appropriate reservation in state court.” Id., at 1106, n. 7. That is precisely what petitioners attempted to do when they reactivated the dormant California case. Yet petitioners advanced more than just the claims on which the federal court had abstained, and phrased their state claims in language that sounded in the rules and standards established and refined by this Court’s takings jurisprudence. Petitioners claimed, for instance, that “imposition of the fee ‘fails to substantially advance a legitimate government interest’ and that ‘[t]he amount of the fee imposed is not roughly proportional to the impact’ of the proposed tourist use of the San Remo Hotel.” 27 Cal. 4th, at 656, 41 P. 3d, at 95 (quoting petitioners’ second amended state complaint). The state trial court dismissed petitioners’ amended complaint, but the intermediate appellate court reversed. The court held that petitioners’ claim that the payment of the “in lieu” fee effected a taking should have been evaluated under heightened scrutiny. Under more exacting scrutiny, the fee failed this Court’s “essential nexus” and “rough proportionality” tests because, inter alia, it was based on the original flawed designation that the San Remo Hotel was an entirely “residential use” facility. See id., at 657-658, 41 P. 3d, at 96-97 (summarizing appellate court opinion (internal quotation marks omitted)).
The California Supreme Court reversed over the partial dissent of three justices. The court initially noted that petitioners had reserved their federal causes of action and had sought no relief for any violation of the Federal Constitution. Id., at 649, n. 1, 41 P. 3d, at 91, n. I. In the portion of its opinion discussing the Takings Clause of the California Constitution, however, the court noted that “we appear to have construed the clauses congruently.” Id., at 664, 41 P. 3d, at 100-101 (citing cases). Accordingly, despite the fact that petitioners sought relief only under California law, the state court decided to “analyze their takings claim under the relevant decisions of both this court and the United States Supreme Court.” Ibid., 41 P. 3d, at 101.
The principal constitutional issue debated by the parties was whether a heightened level of scrutiny applied to the claim that the housing replacement fee “ ‘does not substantially advance legitimate state interests.’” Ibid, (quoting Lucas v. South Carolina Coastal Council, 505 U. S. 1003, 1016 (1992)). In resolving that debate the court focused on our opinions in Nollan v. California Coastal Comm’n, 483 U. S. 825 (1987), and Dolan v. City of Tigard, 512 U. S. 374 (1994). Rejecting petitioners’ argument that heightened scrutiny should apply, the court emphasized the distinction between discretionary exactions imposed by executive officials on an ad hoc basis and “‘generally applicable zoning regulations’” involving “‘legislative determinations.’” 27 Cal. 4th, at 666-668, 41 P. 3d, at 102-104 (quoting, e.g., Dolan, 512 U. S., at 385, 391, n. 8). The court situated the HCO within the latter category, reasoning that the ordinance relied upon fixed fees computed under a formula that is generally applicable to broad classes of property owners. The court concluded that the less demanding “reasonable relationship” test should apply to the HCO’s monetary assessments, 27 Cal. 4th, at 671, 41 P. 3d, at 105.
Applying the “reasonable relationship” test, the court upheld the HCO on its face and as applied to petitioners. As to the facial challenge, the court concluded that the HCO’s mandated conversion fees “bear a reasonable relationship to loss of housing ... in the generality or great majority of cases . . . .” Id., at 673, 41 P. 3d, at 107. With respect to petitioners’ as-applied challenge, the court concluded that the conversion fee was reasonably based on the number of units designated for conversion, which itself was based on petitioners’ own estimate that had been provided to the City in 1981 and had remained unchallenged for years. Id., at 678, and n. 17, 41 P. 3d, at 110-111, and n. 17. The court therefore reversed the appellate court and reinstated the trial court’s order dismissing petitioners’ complaint.
Petitioners did not seek a writ of certiorari from the California Supreme Court’s decision in this Court. Instead, they returned to Federal District Court by filing an amended complaint based on the complaint that they had filed prior to invoking Pullman abstention. The District Court held that petitioners’ facial attack on the HCO was not only barred by the statute of limitations, but also by the general rule of issue preclusion. See App. to Pet. for Cert. 85a-86a. The District Court reasoned that 28 U. S. C. § 1738 requires federal courts to give preclusive effect to any state-court judgment that would have preclusive effect under the laws of the State in which the judgment was rendered. Because California courts had interpreted the relevant substantive state takings law coextensively with federal law, petitioners’ federal claims constituted the same claims that had already been resolved in state court.
The Court of Appeals affirmed. The court rejected petitioners’ contention that general preclusion principles should be cast aside whenever plaintiffs “must litigate in state court pursuant to Pullman and/or Williamson County.” 364 F. 3d 1088, 1096 (CA9 2004). Relying on unambiguous Circuit precedent and the absence of any clearly contradictory decisions from this Court, the Court of Appeals found itself bound to apply general issue preclusion doctrine. Given that general issue preclusion principles governed, the only remaining question was whether the District Court properly applied that doctrine; the court concluded that it did. The court expressly rejected petitioners’ contention “that California takings law is not coextensive with federal takings law,” ibid., and held that the state court’s application of the “reasonable relationship” test was an “ ‘equivalent determination’ of such claims under the federal takings clause,” id., at 1098. We granted certiorari and now affirm.
II
Article IV, § 1, of the United States Constitution demands that “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.” In 1790, Congress responded to the Constitution’s invitation by enacting the first version of the full faith and credit statute. See Act of May 26, 1790, ch. 11, 1 Stat. 122. The modern version of the statute, 28 U. S. C. § 1788, provides that “judicial proceedings ... shall have the same fifil faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State . . . .” This statute has long been understood to encompass the doctrines of res judicata, or “claim preclusion,” and collateral estoppel, or “issue preclusion.” See Allen v. McCurry, 449 U. S. 90, 94-96 (1980).
The general rule implemented by the full faith and credit statute — that parties should not be permitted to relitigate issues that have been resolved by courts of competent jurisdiction — predates the Republic. It “has found its way into every system of jurisprudence, not only from its obvious fitness and propriety, but because without it, an end could never be put to litigation.” Hopkins v. Lee, 6 Wheat. 109, 114 (1821). This Court has explained that the rule
“is demanded by the very object for which civil courts have been established, which is to secure the peace and repose of society by the settlement of matters capable of judicial determination. Its enforcement is essential to the maintenance of social order; for, the aid of judicial tribunals would not be invoked for the vindication of rights of person and property, if, as between parties and their privies, conclusiveness did not attend the judgments of such tribunals in respect of all matters properly put in issue and actually determined by them.” Southern Pacific R. Co. v. United States, 168 U. S. 1, 49 (1897).
As this case is presented to us, under our limited grant of certiorari, we have only one narrow question to decide: whether we should create an exception to the full faith and credit statute, and the ancient rule on which it is based, in order to provide a federal forum for litigants who seek to advance federal takings claims that are not ripe until the entry of a final state judgment denying just compensation. See Williamson County, 473 U. S. 172.
The essence of petitioners’ argument is as follows: because no claim that a state agency has violated the federal Takings Clause can be heard in federal court until the property owner has “been denied just compensation” through an available state compensation procedure, id., at 195, “federal courts [should be] required to disregard the decision of the state court” in order to ensure that federal takings claims can be “considered on the merits in ... federal court,” Brief for Petitioners 8, 14. Therefore, the argument goes, whenever plaintiffs reserve their claims under England v. Louisiana Bd. of Medical Examiners, 375 U. S. 411 (1964), federal courts should review the reserved federal claims de novo, regardless of what issues the state court may have decided or how it may have decided them.
We reject petitioners’ contention. Although petitioners were certainly entitled to reserve some of their federal claims, as we shall explain, England does not support their erroneous expectation that their reservation would fully negate the preclusive effect of the state-court judgment with respect to any and all federal issues that might arise in the future federal litigation. Federal courts, moreover, are not free to disregard 28 U. S. C. § 1738 simply to guarantee that all takings plaintiffs can have their day in federal court. We turn first to England.
Ill
England involved a group of plaintiffs who had graduated from chiropractic school, but sought to practice in Louisiana without complying with the educational requirements of the State’s Medical Practice Act. 375 U. S., at 412. They filed suit in federal court challenging
Question: What is the court whose decision the Supreme Court reviewed?
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210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma
211. Court of Private Land Claims
Answer:
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songer_appel2_7_2
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D
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the gender of this litigant. Use names to classify the party's sex only if there is little ambiguity (e.g., the sex of "Chris" should be coded as "not ascertained").
INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, et al., Plaintiffs, v. FEDERAL ELECTION COMMISSION, et al., Defendants.
No. 81-1664.
United States Court of Appeals, District of Columbia Circuit.
Argued En Banc Oct. 14, 1981.
Decided April 6, 1982.
John Silard, Washington, D. C., with whom Joseph L. Rauh, Jr., James C. Turner and Judy Lyons Wolf, Washington, D. C., were on the brief, for plaintiffs.
Carolyn U. Oliphant, Sp. Asst. Gen. Counsel, Federal Election Com’n, Washington, D. C., with whom Charles N. Steele, Gen. Counsel, Richard B. Bader, Asst. Gen. Counsel, and Jeffrey H. Bowman, Atty., Federal Election Com’n, Washington, D. C., were on the brief, for defendants. Kathleen Imig Perkins, Atty., Federal Election Com’n, Washington, D. C., also entered an appearance for defendants.
Before ROBINSON, Chief Judge, and TAMM, ROBB, WILKEY, WALD, MIKVA, EDWARDS and GINSBURG, Circuit Judges.
Opinion PER CURIAM.
Opinion concurring in part and concurring in the result filed by Circuit Judge HARRY T. EDWARDS.
OUTLINE OF OPINION
Page
I. Introduction_________________________ 1094
II. History of the Case-------------------- 1095
III. Standing---------------------------- 1097
IV. Analysis ____________________________ 1099
A. Is the asserted imbalance between corporations and labor unions under the 1976 FECA amendments unconstitutional?___________________________1099
1. Background of the 1976 amendments ________________________1100
2. The alleged imbalance___________1103
3. The standard of review__________1105
4. The governmental interest.......1106
5. Means scrutiny: to what extent are corporations and labor unions similarly situated for the purpose at hand?______________ 1107
B. Does the statute impair career employees’ First Amendment right of political abstention by permitting the corporate PAC solicitation as detailed in the record?_____________________U09
1. Is solicitation of career employees inherently coercive?----------------1110
2. The considered judgment of Congress and the deference due to it___1112
C. Does the use of general corporate assets to establish and support a corporate PAC violate the First Amendment rights of dissenting shareholders?___________1115
V. Conclusion __________________________ms
I. INTRODUCTION
Before this en banc court are three questions concerning the constitutionality of two provisions of the Federal Election Campaign Act (“FECA” or the “Act”) that regulate the solicitation practices of corporations and labor unions. Plaintiffs — a national labor organization and six individuals — argue that Congress has acted without sufficient regard for their political speech rights and the political speech rights of others in face of the proliferation of corporate political action committees (“PACs”) and their concomitant increased influence in federal elections. Specifically, plaintiffs allege that (1) Congress in the 1976 FECA amendments has created an unconstitutional imbalance between corporations and labor unions, in favor of the former, by allowing corporate PACs to solicit their executive and administrative (career) employees; (2) such corporate solicitation of executive and administrative employees, which occurs under inherently coercive circumstances, violates the First Amendment right of career employees to abstain from political expression; and (3) the provision of the Act that authorizes the financing of operating and administrative costs of a corporate PAC from general corporate assets violates the First Amendment rights of dissenting shareholders.
On June 3, 1981, the district court certified three questions matching these allegations pursuant to section 315(a) of the Act, 2 U.S.C. § 437h(a), the extraordinary judicial review provision of the Act, which provides: “[t]he district court immediately shall certify all questions of constitutionality of this Act to the United States Court of Appeals for the circuit involved, which shall hear the matter sitting en banc.” Finding none of plaintiffs’ arguments legally persuasive, we rule against them on each of the certified questions, and hold that the congressional product before us does not transgress constitutional limitations.
II. HISTORY OF THE CASE
On October 9, 1979, plaintiffs filed an administrative complaint with the Federal Election Commission (“FEC” or “Commission”), pursuant to 2 U.S.C. § 437g(a)(l), alleging that the solicitation practices of eleven selected corporations, in obtaining funds for their political action committees, contravened the prohibitions in section 441b(b). Alternatively, plaintiffs argued that if the Commission construed the relevant provisions of the Act to permit the corporate conduct challenged in the complaint, then those provisions of FECA violate the First and Fifth Amendment rights of the plaintiffs. Acting on a recommendation from the Commission’s General Counsel that there was no “reason to believe” the Act had been violated, the Commission, on December 13, 1979, unanimously voted to dismiss the complaint without further investigation and without an additional statement of reasons.
On February 4, 1980, plaintiffs filed a four-count complaint for injunctive and declaratory relief in the district court, pursuant to section 437g(a)(9)(A), seeking review of the Commission’s dismissal of their complaint. The first count alleged that “corporate PAC solicitations of unprotected career employees are yielding donations which are not free and voluntary, and constitute corporate political contributions because they result from the employment relationship.” Plaintiffs maintained that because these solicitations violated the Act, the Commission failed to discharge its statutory duty to investigate; thus, the Commission’s dismissal was contrary to law.
The second, third and fourth counts all alleged constitutional violations. Plaintiffs made clear in their complaint that they sought relief on their constitutional claims only if they were denied relief on the statutory count. Plaintiffs sought certification of the constitutional issues to this court pursuant to section 437h(a).
On cross-motions for summary judgment on the statutory claim, the district court upheld the Commission’s dismissal of plaintiffs’ administrative complaint. The Commission had previously filed a motion to dismiss the constitutional counts for failure to state a claim upon which relief can be granted and for the further reason that plaintiffs lacked standing to sue. The district court denied the motion to dismiss and announced it would certify the three constitutional questions for this court’s en banc determination. The court found plaintiffs’ constitutional claims “neither frivolous nor so insubstantial as to warrant dismissal for failure to state a claim.” As to standing, the court concluded that each of the plaintiffs had made a threshold showing of injury in fact sufficient to satisfy Article III. The court further ruled that, although no corporate executive or administrative employee was party to the litigation, the plaintiffs possessed standing to assert vicariously the First Amendment rights of such employees. On January 12, 1981, plaintiffs noticed their appeal from the district court’s order upholding the Commission’s dismissal, D.C.Cir. Docket No. 81-1044.
Section 437h(a) requires a district court to certify immediately all questions of the constitutionality of the Act. However, as this court recognized in Buckley v. Valeo, 519 F.2d 817 (D.C.Cir.1976) (en banc), it is undesirable to decide a constitutional issue abstracted from its factual context. Therefore, on January 8, 1981, the district court entered a consent order providing for discovery of facts concerning the solicitation practices of four of the eleven corporations named in plaintiffs’ administrative complaint. On April 27, 1981, the parties signed an agreement stipulating two hundred ten findings of fact. The district court, on June 3, 1981, certified the three constitutional questions and submitted as the record the findings of fact agreed to by the parties. This court gave the certified constitutional case a regular docket number, No. 81-1664.
The Commission renewed in this court its motion to dismiss for lack of standing. This court sitting en banc consolidated the statutory appeal in No. 81-1044 with the certification of constitutional questions in No. 81-1664, deferred decision on the motion to dismiss until after argument, and expedited the two cases as contemplated by the Act.
On October 26, 1981, this court issued a judgment in No. 81-1044 affirming the district court’s disposition of the statutory claim, thereby putting squarely in issue plaintiffs’ three constitutional challenges. 672 F.2d 894.
III. STANDING
The Commission contends initially that none of the plaintiffs possesses the “voter standing” section 437h(a) requires; accordingly, the plaintiffs are not eligible to invoke the expedited procedure. Second, the Commission argues that the plaintiffs have failed to meet the Article III “case or controversy” requirement. We reject both arguments and therefore deny the Commission’s motion to dismiss at the threshold.
The text of section 437h states that these categories of plaintiffs may invoke the certification procedure: “[t]he Commission, the national committee of any political party, or any individual eligible to vote in any election for the office of President.” 2 U.S.C. § 437h(a). In Bread Political Action Committee v. FEC, - U.S. -, 102 S.Ct. 1235, 71 L.Ed.2d 432 (1982), the Supreme Court held that only parties who fit one of these three descriptions have recourse to the expedited, certification procedure. Accordingly, IAMA lacks the requisite statutory standing and must be dismissed as party plaintiff. The Commission maintains further that the “voter standing” Congress granted in section 437h(a) is confined to plaintiffs who put in issue their First Amendment rights qua voters. The individual plaintiffs, under the Commission’s analysis, lack standing to utilize section 437h; although each is an eligible voter, no individual plaintiff has raised an issue as to his or her right to vote. Rather, plaintiffs raise issues as union members, as corporate shareholders, and on behalf of corporate employees, not as voters.
Only one decision has embraced this pinched construction of section 437h(a). In Martin Tractor Co. v. FEC, 460 F.Supp. 1017, 1019 (D.D.C.1978), aff’d on other grounds, 627 F.2d 375 (D.C.Cir.), cert. denied, 449 U.S. 954, 101 S.Ct. 360, 66 L.Ed.2d 218 (1980), the court stated:
[T]he individual plaintiffs do not sue in their individual capacities to protect their individual rights to vote or even to make contributions. They sue to vindicate a claimed right of their corporate employer to influence its employees ... to make voluntary political contributions. While the question is not free from doubt, the Court has concluded that this kind of derivative right was not the constitutional right of “an individual eligible to vote” which Congress considered “appropriate” for vindication in a special declaratory judgment action under § 437h, particularly where, under the statutory scheme there is an alternative process for resolution of the substantive issue in the context of a particular transaction ....
In the case before us, plaintiffs did proceed under the “alternative process for resolution” of their challenges; they pursued a section 437g enforcement action. The district court removed the constitutional issues from the section 437g action and certified them to this court pursuant to section 437h. This is the proper mode of procedure for questions of the Act’s constitutionality arising in section 437g proceedings. California Medical Ass’n v. FEC, 453 U.S. 182, 101 S.Ct. 2712, 2717-19, 69 L.Ed.2d 567 (1981).
Martin Tractor apart, we find no support for the Commission’s position that section 437h(a) qualifies voters to raise constitutional issues only in relation to their rights as voters. Neither the language of the statute (any eligible voter, all constitutional questions) nor its legislative history suggests an interpretation so constricted. We note further that the Commission’s view is difficult to reconcile with California Medical Ass’n v. FEC, 101 S.Ct. 2712 (1981), in which the Supreme Court adjudicated a section 437h challenge to a provision of the Act regulating trade association activity. In short, we reject the FEC’s severely limited voter standing delineation, disapprove Martin Tractor to the extent it adopted the Commission’s view, and hold that the plaintiffs who are “individuals eligible to vote” in federal elections have statutory standing to invoke the section 437h certification procedure. See California Medical Ass'n v. FEC, 101 S.Ct. at 2717 n.6 (1981); Buckley v. Valeo, 424 U.S. 1, 12, 96 S.Ct. 612, 631, 46 L.Ed.2d 659 (1976).
We are also satisfied that the individual plaintiffs have Article III standing to raise the constitutional claims. The union member plaintiffs allege that they suffer a relative diminution in their political voices — their influence in federal elections — as a direct result of the discriminatory imbalance Congress is alleged to have ordered in the 1976 FECA amendments; they further assert that a ruling declaring the amendments unconstitutionally discriminatory would likely redress their injury. Similarly, the stockholder plaintiffs allege that the use of “their” corporate assets to establish and support a PAC impinges upon their political freedoms; a ruling invalidating the authorizing statute would eliminate this asserted harm. These arguments are sufficient to establish the individual plaintiffs’ standing under Article III to assert their First and Fifth Amendment rights. Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 72, 98 S.Ct. 2620, 2630, 57 L.Ed.2d 595 (1978); Warth v. Seldin, 422 U.S. 490, 498-99, 95 S.Ct. 2197, 2204-05, 45 L.Ed.2d 343 (1975). However, no executive or administrative employees appear among the named plaintiffs. Those plaintiffs seek to assert vicariously alleged First Amendment rights of career employees to abstain from political expression.
The Supreme Court has repeatedly cited the prudential limitation on standing that a plaintiff generally may assert only his own legal interests, and may not raise those of third parties. Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 100, 99 S.Ct. 1601, 1608, 60 L.Ed.2d 66 (1979); Warth v. Seldin, 422 U.S. at 499, 95 S.Ct. at 2205 (1975). This prudential rule against the assertion of third-party claims is designed “to limit access to the federal courts to those litigants best suited to assert a particular claim,” Gladstone, Realtors, 441 U.S. at 100, 99 S.Ct. at 1608. Because the rule is not of constitutional dimension, the Court has recognized exceptions to it in a number of cases. See, e.g., Carey v. Population Services, Int'l, 431 U.S. 678, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977); Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976); Singleton v. Wulff, 428 U.S. 106, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976); Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972); Barrows v. Jackson, 346 U.S. 249, 73 S.Ct. 1031, 97 L.Ed. 1586 (1953). Moreover, it is clear that Congress may, by legislation, permit one who satisfies Article III requisites in his own right to assert vicariously the rights of third parties. Gladstone, Realtors, 441 U.S. at 100, 99 S.Ct. at 1608 (1979); Warth v. Seldin, 422 U.S. at 501, 95 S.Ct. at 2206 (1976). We believe Congress did not wish to truncate the presentations of parties entitled to invoke the section 437h expedited, certification procedure. Therefore, we entertain the individual plaintiffs’ arguments with respect to the alleged First Amendment rights of career employees. See California Medical Ass’n, 101 S.Ct. at 2717 n.6 (1981) (“[Tjhis court has held [the grant of standing under section 437h] to be limited only by the constraints of Art. III of the Constitution .... ”); Buckley v. Valeo, 424 U.S. at 12, 96 S.Ct. at 631 (1976) (“It is clear that Congress, in enacting [section 437h], intended to provide judicial review to the extent permitted by Art. III.”). But cf. Bread Political Action Committee v. FEC, -U.S.-,-, 102 S.Ct. 1235, 1239, 71 L.Ed.2d 432 (1982) (In the context of considering who may invoke the expedited procedures of section 437h, the Court stated: “We do not assume the maximum jurisdiction permitted by the Constitution, absent a clearer mandate from Congress than here expressed.”). The plaintiffs allege that the infringement of executive and administrative employees’ right of political abstention leads to greater contributions to corporate PACs and, hence, to greater corporate PAC expenditures. This allegedly causes a relative diminution of the plaintiffs’ political voices, which is one of the asserted injuries they seek to redress in this litigation.
Accordingly, we hold that the individual plaintiffs here are qualified to pursue all three constitutional challenges, including the claim that career employees are unconstitutionally exposed, by reason of the 1976 FECA amendments, to inherently coercive solicitations.
IV. ANALYSIS
A. Is the asserted imbalance between corporations and labor unions under the 1976 FECA amendments unconstitutional?
The union plaintiffs claim that Congress, in the 1976 FECA amendments, restricted corporate and labor union PAC activity in an unequal and discriminatory manner, upsetting an alleged long-standing balance between corporations and labor unions, in violation of First and Fifth Amendment strictures.
1. Background of the 1976 amendments.
Congressional regulation of corporate political activity began with the Tillman Act of 1907, wherein Congress prohibited corporations from making money contributions in connection with any federal election. Congress has strengthened this prohibition several times since in a continuing effort to free the political system of inordinate and improper corporate influence. It was not until the War Labor Disputes Act of 1943, however, that Congress brought labor unions within the reach of the prohibition.
In 1971, Congress, in a major undertaking to reform the federal election laws, enacted the Federal Election Campaign Act. Congress dealt with corporate and labor union political activity in section 205 of the Act, a section originally offered as an amendment by Representative Hansen. Representative Hansen stated that the purpose of the amendment “is to codify the court decisions interpreting [18 U.S.C. § 610], and to spell out in more detail what a labor union or corporation can or cannot do in connection with a federal election.” The amendment “draws a distinction between activities directed at the general public, which [the courts have] prohibited, and communications by a corporation to its stockholders and their families, and by a labor organization to its members and their families, on any subject, which the courts have held is permitted.” As to the latter, to ensure that contributions are voluntary, the amendment prohibited the use of funds obtained by force, threat of force, job reprisal or discrimination, dues or fees, a safeguard now found at 2 U.S.C. § 441b(b)(3)(A). Representative Hansen concluded that the amended “Section 610 strikes a balance between organizational rights [of corporations and labor unions] and the rights of those who wish to retain their shareholding interest or membership status but who disagree with the majority’s political views.”
In the debate over the Hansen amendment, Congress focused on the respective interests of organization and individual, not on any balancing of corporate and labor influence. Congress appeared satisfied that existing law conformed to the legislature’s wish to treat corporations and labor unions evenhandedly so that no alteration by FECA was required. Thus, as amended section 610 read when the Act became law in 1972, corporations were permitted to solicit contributions through their political action committees from their shareholders and their families, and labor unions were allowed to solicit contributions through their PACs from their members and their families.
In the 1976 amendments, Congress added a corporation’s “executive or administrative personnel and their families” to those whom a corporate PAC may solicit. This alteration was a direct response to SUNPAC, an Advisory Opinion the Commission issued in 1975. In SUNPAC, the Commission ruled, inter alia, that a corporate PAC could, consistent with the Act, solicit all of the corporation’s employees as well as its shareholders. The debate in both Houses confirms that the single purpose of the alteration was to reject the sweeping SUNPAC interpretation and restore in large measure the balance thought to exist between corporations and labor unions prior to the Commission’s SUNPAC opinion.
The House Bill, H.R. 12406, would have allowed a corporate PAC to solicit only its “executive officers” in addition to the corporation’s shareholders. Representative Thompson stated that the House amendment “specifically corrects the FEC’s erroneous interpretation” in SUNPAC. According to Thompson, SUNPAC “drastically modified the equitable balance which had been the national policy established during the 92d Congress.” The House Bill would “reestablish[ ] the congressionally determined balance between interests of the business community and its stockholders, and the interests of the labor community and its membership.”
The House Report explicitly states that “[t]he Sun Oil [SUNPAC] opinion destroys the intent of the Congress to establish rules that apply equally to labor unions and corporations.” The House Bill proposed “three limited clarifications of the law,” all of them intended by the Committee to ensure even-handed treatment of corporations and labor unions. In allowing a corporate PAC to communicate with and solicit contributions from its “executive officers,” the Committee noted that it viewed “management personnel,” like stockholders, “to be among the beneficial owners of a corporation.” The main purpose of the bill was stated as follows in the House Report:
H.R. 12406 continues the rule that unions may only solicit those they represent— their members — and reaffirms the intent of the 1971 Congress that corporations must also confine their activities to a roughly comparable group — namely, stockholders and executive officers
The bill also provided that any method of solicitation or communication which the law permitted corporations must also be permitted labor organizations.
The Senate Bill, S. 3065, employed the phrase “executive or administrative personnel” instead of “executive officers,” but in all other respects relevant here it tracked the House version. The Senate’s intent to overturn the broad SUNPAC ruling is clear from the treatment accorded two amendments to the bill offered by Senator Pack-wood on the Senate floor. Senator Pack-wood first introduced an amendment which “in essence, lets everybody solicit everybody in the corporation .... ” Specifically, his first amendment would have allowed a union PAC to solicit non-member employees and shareholders and, symmetrically, would have permitted a corporate PAC to solicit all of the corporation’s employees including union members. Senator Packwood acknowledged the amendment “pretty much, puts the situation back where the Federal Election Commission had left it with their rulings in the creation of what was known as the SUNPAC decision.” But he believed it treated labor unions and corporations “equitably.” The Senate, without debate, rejected this amendment, 40-45.
Senator Packwood introduced next “the middle ground amendment,” a proposal which would have extended corporate and union solicitation to middle level employees. Conceding that strong labor opposition to the SUNPAC ruling justified some restrictions on corporate solicitation of employees, Packwood nevertheless pointed out that under the Senate Bill “nonsupervisory, nonu-nionized employees, who are half of the work force of the major corporations in this country, cannot be solicited by the union and cannot be solicited by the employer.” These middle level employees, Packwood urged, have a stake in what both corporation and labor union do that affects them, therefore both union PACs and corporate PACs should be allowed to solicit them. Other Senators expressed concern over the potential for coercion, actual and perceived, in permitting solicitation of these non-supervisory, non-union employees. Although Packwood attempted to assure his colleagues that coercion was illegal under present law and would remain so under his amendment, the Senate rejected this amendment, too, 33-47. Senator Dole, speaking of the provision concerning PACs just before the vote on the entire bill, stated, “Although the compromise reached with respect to solicitation of funds from employees may not be totally consistent with the SUNPAC decision, it probably also represents a fair settlement of the issue.”
The substitute bill as reported out of conference employed the Senate language “executive or administrative personnel.” The Conference Report defined “executive or administrative personnel” as “employee[s] who [are] paid on a salary, rather than hourly, basis and who ha[ve] policymaking, managerial, professional, or supervisory responsibilities.” The Report explained further:
The term “executive or administrative personnel” is intended to include the individuals who run the corporation’s business, such as officers, other executives, and plant, division, and section managers, as well as individuals following the recognized professions, such as lawyers and engineers, who have not chosen to separate themselves from management by choosing a bargaining representative; but is not intended to include professionals who are members of a labor organization, or foremen who have direct supervision over hourly employees, or other lower level supervisors such as “strawboss-es”.
Concerning the balance Congress intended to restore in these amendments, the Conference Report contains only a passing reference to “the general rule inherent in the plan of the entire section — that unions insofar as they are employers,[] stand in the same shoes as corporations . Congress was not unaware, however, that the balance struck in 1976 was different from the one that existed prior to the SUNPAC ruling. In presenting the Conference Bill to the House, Representative Hays stated:
The individuals ... whom a corporation may ... solicit[] for contributions to a political fund was broadened to include professional employees who are not represented by a bargaining agent and supervisory employees other than foremen who directly supervise rank-and-file employees.
Representative Brademas concluded that Congress has restored the ante-SUNPAC balance “in a manner that is fair and evenhanded .... [I]f the word ‘fairness’ implies a balancing of rights, this bill represents an equitable balance between the rights of corporations and labor unions. It is the product of deliberation, negotiation and compromise.”
In sum, our review of the relevant legislative history convinces us of two things: (1) Congress intended to overrule the SUN-PAC decision in substantial part and re-establish a balance similar, but not identical, to the one Congress codified in 1971; (2) there was a general consensus that the amendments achieved this purpose and did so equitably.
2. The alleged imbalance.
Plaintiffs, in light of the legislative history just recounted, do not claim that Congress in 1976 intended to tip the balance in favor of corporations. Rather, they accuse Congress of lacking the prescience to comprehend the effect of unleashing corporate PACs to solicit career employees: an “explosive” growth both in the number of corporate PACs and in their influence in federal elections, disproportionate to that of union PACs.
Plaintiffs cite the following figures and invite comparison. In 1975, 139 corporate PACs raised $5.8 million; 226 union PACs raised $18.5 million. By 1980, however, there were 1204 corporate PACs with a combined campaign chest of $34 million. The number of labor PACs increased in the same period only incrementally to 297; they raised $26 million. Plaintiffs estimate that 90% of corporate PAC funds are derived from executive and administrative employees. Plaintiffs’ figures do not inform us how many career employees were open to solicitation pre-1976 as shareholders. Nor, taking into account that labor union PACs just a few years ago were more prevalent, wealthier, and more powerful than corporate PACs, do plaintiffs entertain the possibility that the relative strength of corporate and labor PACs may swing pendulum-like in step with the political fortunes of the day. Plaintiffs demonstrate a connection in time (and argue a causal connection) between the SUNPAC ruling, the 1976 amendments, and the proliferation of corporate PACs. It is the statute, they argue — specifically the provision authorizing corporate solicitation of career employees — that “allows and invites a large and growing imbalance between corporate and union PAC funds.”
Although plaintiffs recite a host of figures to dramatize this disparity, the imbalance of which they complain is not purely one of dollars and cents. Instead, the imbalance Congress is said to have created in 1976 is institutional, a matter of capacity, and thus outside the power of labor unions to correct. According to plaintiffs, there simply are many more major corporations (and many more career employees to be solicited) than there are major labor unions (and union employees ). Because most major corporations have not yet set up a political action committee, plaintiffs’ argument continues, the chasm between corporate and labor PAC funds promises to widen even more.
Plaintiffs do not object, however, to the proscription on labor PAC solicitation of non-member union employees (or non-member corporate employees). Even if Congress drew the 1976 amendments in a facially equal manner (corporate and labor PACs may solicit their respective career employees; or corporate and labor PACs alike may solicit all corporate employees, regardless of union membership, and all shareholders), plaintiffs would still press their discrimination claim. In sum, the union plaintiffs challenge here congressional action that frees corporate PACs to amass funds that labor union PACs allegedly could not attract even if they were permitted to try.
3. The standard of review.
The union plaintiffs argue that the 1976 amendments, which authorize labor PACs to solicit their members but which authorize corporate PACs to solicit their career employees in addition to their shareholders, violate the equal protection component of the Due Process Clause of the Fifth Amendment. They argue conjunctively that this disparate treatment violates their First Amendment rights. Urging linked consideration of these two constitutional safeguards, plaintiffs rely on decisions focused on the “intersection” of equal protection and First Amendment guarantees, most notably, Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976), and Police Department v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972). They maintain that the 1976 amendments must be scrutinized strictly and assert that the Commission has not adequately justified the amendments’ disparate impact on corporate and labor PACs.
While heightened scrutiny often attends a legislative classification alleged to impinge on First Amendment interests, we reject plaintiffs’ argument that the most stringent review standard should apply in this case. Decisions in point may lack perfect consistency and crystal clarity, but they do reveal that the nature and quality of the legislative action at issue determine the intensity of judicial review of intertwined equal protection, First Amendment claims. We note in that light that the particular congressional action plaintiffs assail does not encroach directly or, on its face, place limits on any individual’s speech or participation in the electoral process. In this respect, neither Mosley, involving an ordinance allowing one group, but not others, to picket, nor Buckley v. Valeo, involving limitations on campaign contributions and expenditures, nears plaintiffs’ mark. Moreover, we underscore again that plaintiffs do not seek for union PACs the permission Congress granted corporate PACs to solicit career employees. Rather, plaintiffs want to tighten or reinstate a governmental limitation on political activity, i.e., they would preclude corporate PACs from soliciting career employees, in order to maintain a balance between electoral messages spread by corporations and those spread by unions.
Mosley itself enunciated review standards that were not the most exacting, and Buckley v. Valeo drew distinctions bearing on the rigorousness of review based on the character of the several legislative proscriptions the Court scrutinized. See, e.g., 424 U.S. at 95-96, 96 S.Ct. at 671. We are therefore confident that the matter before us does not call for a review standard more demanding than this elevated, but not strictest, test: the challenged legislative action must bear a substantial relation to an important governmental interest.
4. The governmental interest
Plaintiffs phrase their objection to the 1976 amendments in terms of the ends Congress may have sought to achieve by permitting corporate PACs to communicate with and solicit executive and administrative employees. But their objection is more appropriately addressed to the means Congress chose to serve an indisputably important governmental interest: impartial FECA treatment of corporations and labor unions. It confounds means and ends scrutiny to demand, as plaintiffs do, that Congress explicate a substantial government interest in adding career employees to the pool of permissible corporate solicitees. As developed earlier the 1976 amendments at issue were designed to restore a balance to FECA’s treatment of corporations and labor unions, a balance the Commission in its SUNPAC ruling had upset. It is true that the balance Congress struck in 1976 differs from the one arrived at in 1971. But the goal of Congress has remained the same. Thus, whether the 1976 amendments survive constitutional review turns on the degree of precision with which Congress has achieved its unquestionably proper purpose: does the legislative scheme of section 441b(b)(2), as amended in 1976, bear a substantial relation to the important governmental interest in applying the federal election laws even-handedly to labor unions and corporations?
5. Means scrutiny: to what extent are corporations and labor unions similarly situated for the purpose at hand?
Congress apparently did not consider the difference in capacity between corporate and labor PACs when it framed the 1976
Question: This question concerns the second listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the gender of this litigant?Use names to classify the party's sex only if there is little ambiguity.
A. not ascertained
B. male - indication in opinion (e.g., use of masculine pronoun)
C. male - assumed because of name
D. female - indication in opinion of gender
E. female - assumed because of name
Answer:
|
songer_fedlaw
|
D
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal statute, and if so, whether the resolution of the issue by the court favored the appellant.
ROBESON v. ACHESON.
No. 11030.
United States Court of Appeals District of Columbia Circuit
Argued March 13, 1952.
Decided Aug. 7, 1952.
Mr. Nathan Witt, New York City, of the Bar of the Court of Appeals of New York, pro hac vice, by special leave of Court, with who Messrs. James A. Cobb, George E. C. Hayes, George A. Parker and Barrington D. Parker, Washington, D. C., were on the brief, for appellant.
Mr. Joseph M. Howard, Asst. U. S. Atty., with whom Messrs. Charles M. Irelan, U. S. Atty., and Ross O’Donoghue, Asst. U. S. Atty., were on the brief, for appellee. Mrs. George Morris Fay, U. S. Atty. at the time the record was filed, also entered an appearance for appellee.
Before WILBUR K. MILLER, PRET-TYMAN and FAHY, Circuit Judges.
PER CURIAM.
Appellant Robeson, plaintiff below, appeals from dismissal of his complaint, on motion, by the District Court. The complaint seeks a declaratory judgment and injunction decreeing in substance that appellant’s passport is still valid, that appellee Acheson, Secretary of State, the defendant below, has without right cancelled it, and that appellant is entitled to leave the United States without interference by appellee.
The complaint, filed Deecmber 19, 1950, recites, inter alia, that appellant, a citizen of the United States, then held a passport which would by virtue of a renewal remain valid until January 25, 1961; that appellee Acheson, through his agents, demanded appellant surrender his passport; that the passport was invalidated, and, on information and belief, that appellee took steps to prevent appellant from leaving the United States. The complaint sets forth respects in which appellee’s conduct is said to have been illegal and to have injured appellant in his travel plans and business activities abroad.
According to the allegations of the complaint the passport expired January 25, 1951, a few weeks subsequent to the filing of the suit. No application for renewal or for a new passport is shown to have been made. Insofar as the passport is concerned it seems clear, therefore, the case has long since become moot. “ * * * There being no subject matter upon which the judgment of this Court can operate, the cause is moot.” Amalgamated Ass’n of St. Elec. Ry. & Motor Coach Emp. of America Div. 998 v. Wisconsin Board, 1951, 340 U.S. 416 at page 418, 71 S.Ct. 373, 375, 95 L.Ed. 389. We should not, under settled principles, decide the important issues sought to be litigated when there is pending before the Secretary no application for a new passport and the one said to have been unlawfully invalidated has expired by its own terms.
The entire case fails by reason of the situation above described. It is not saved by the allegations that the Secretary has taken steps pursuant to Section 53.5 of Title 22 of the Code of Federal Regulations to prevent appellant’s departure from the United States. It is true the alleged actions of the Secretary in this respect, like those dealing with cancellation of the passport, are characterized as depriving appellant of his right to travel abroad, and as arbitrary, discriminatory and violative of due process of law. But the complaint indicates that the steps said to have been taken to prevent appellant’s departure are incident to invalidation of his passport. Nowhere among the allegations of his travel plans or desires or business activities dependent upon his travel is there a suggestion of plans, desires or activities which would take appellant to any place outside the United States where under existing law and regulations a passport might not be required. A fair reading of the complaint discloses no case, independent of the consequence of invalidation of the passport, of alleged infringement of rights by restraint upon appellant’s freedom of movement beyond the United States. Copies of communications between him and the State Department, attached as exhibits to the complaint, and his reference to § 53.5 of the regulations, the terms of which are outlined in the last paragraph of n. 1, supra, emphasize that his dispute with the Department is radicated in the passport issue. Since that issue falls as moot the whole case falls with it as presently set forth in the complaint.
Reversed and remanded to be dismissed as moot.
. Peacetime control over passports is vested in the Secretary, under regulations prescribed by the President. 44 Stat. 887 (1926), 22 U.S.C.A. § 211a (1946). Regulations under this provision are found in Sections 51.1 — 52.9, 22 Code Fed. Regs. Parts 51 and 52 (1949 ed.). Under 22 U.S.C.A. §§ 223 and 224 (1946), 40 Stat. 559 (1918), the President is authorized to restrict departures from the United States in time of actual war or during the national emergency proclaimed May 27, 1941, by Proclamation No. 2487, 6 Fed.Reg. 2617, 50 U.S.C.A.Appendix note preceding § 1. Though, this emergency was terminated April 28, 1952, and though the war has ended, the powers referred to have been extended. The current extension appears in Public Law 450, approved July 3, 1952, 68 Stat. 330,' and also in Public Law 414, Immigration and Nationality Act, Sec. 215, enacted into law over Presidential veto, June 27, 1952, 66 Stat. 190. Under these powers the Secretary has promulgated regulations which include Section 53.5, 22 Code Fed.Regs. Part 53 (1949 ed.), referred to in the complaint.
Section 53.5 permits (a) the Secretary to prevent departure or entry of a citizen if he does not bear a passport or other specified document notwithstanding he may be destined for or arriving from a place outside the territory of the United States for which a valid passport is not required in the regulations; further, (b) the Secretary is permitted to prevent temporarily departure or entry of a citizen who bears a valid passport or other specified document or is destined for or arriving from a place outside United States territory for which a valid passport is not required under the regulations of said Part. Provision (b) is not involved by the complaint and in any event appears inapplicable. Provision (a) refers to a situation where a person does not have a passport even when usually one would not be required. Thus again it appears that the prevention of appellant’s departure, alleged to have been taken pursuant to Section 53.5, is due to absence of a passport even though we were to assume he might desire to go where a passport is ordinarily unnecessary, under § 53.2, 22 Code Fed.Regs. Part 53 (1949 ed.).
. See 22 Code Fed.Regs. § 53 (1949 ed.).
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:
|
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.
SHANNON v. UNITED STATES
No. 92-8346.
Argued March 22, 1994
Decided June 24, 1994
Thomas, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O’Connor, Scalia, Kennedy, Souter, and Ginsburg, JJ., joined. Stevens, J., filed a dissenting opinion, in which Blackmun, J., joined, post, p. 588.
Thomas R. Trout, by appointment of the Court, 510 U. S. 943, argued the cause and filed briefs for petitioner.
Amy L. Wax argued the cause for the United States. With her on the brief were Solicitor General Days, Assist ant Attorney General Harris, Deputy Solicitor General Bryson, and Deborah Watson
Peter Margulies filed a brief for the Coalition for the Fundamental Rights of Ex-Patients urging reversal.
Justice Thomas
delivered the opinion of the Court.
In this case, we consider whether a federal district court is required to instruct the jury regarding the consequences to the defendant of a verdict of “not guilty by reason of insanity,” either under the Insanity Defense Reform Act of 1984 or as a matter of general federal practice. We conclude that such an instruction is not required, and therefore affirm.
I
A
Prior to the enactment of the Insanity Defense Reform Act of 1984 (IDRA or Act), 18 U. S. C. §§17, 4241-4247, federal courts generally did not recognize a verdict of “not guilty by reason of insanity” (NGI). Defendants who mounted a successful insanity defense — that is, those who raised a reasonable doubt as to their sanity at the time of the offense — were simply found “not guilty.” See, e. g., United States v. McCracken, 488 F. 2d 406, 409, 418 (CA5 1974); Evalt v. United States, 359 F. 2d 534, 537 (CA9 1966). In addition, there was no general federal civil commitment procedure available to ensure that an insanity acquittee would receive proper care and treatment. Only in the District of Columbia was a defendant who successfully presented an insanity defense to a federal criminal charge subject to a federal commitment process — a process governed by a 1955 congressional enactment. See 69 Stat. 609, as amended, D. C. Code Ann. §24-301 (1981). Elsewhere, federal authorities were forced to rely on the willingness of state authorities to institute civil commitment proceedings. Reliance on state cooperation was “at best a partial solution to a serious problem,” however, and federal courts “[t]ime and again . . . decried this gaping statutory hole.” McCracken, supra, at 417.
Before the IDRA was enacted, the Federal Courts of Appeals generally disapproved of instructing the jury concerning the post-trial consequences of an insanity acquittal. Thus, jurors typically were given no information with regard to what would happen to a defendant acquitted by reason of insanity. The courts in general gave two reasons for disapproving such instructions. First, they pointed out that, given the absence of a federal commitment procedure, the consequences of an insanity acquittal were far from certain. Second, they concluded that such instructions would run afoul of the well-established principle that a jury is to base its verdict on the evidence before it, without regard to the possible consequences of the verdict. See, e. g., McCracken, supra, at 423; Evalt, supra, at 546; United States v. Borum, 464 F. 2d 896, 900-901 (CA10 1972).
The only Court of Appeals to endorse the practice of instructing the jury regarding the consequences of an insanity acquittal was the District of Columbia Circuit. See Lyles v. United States, 254 F. 2d 725 (1957) (en banc), cert. denied, 356 U. S. 961 (1958). In Lyles, the District of Columbia Circuit addressed the jury instruction question in the context of D. C. Code Ann. §24-301 (1951 ed., Supp. V), which, unlike generally applicable federal law, provided for a special verdict of NGI and, as noted above, a civil commitment procedure. The Lyles court recognized the “well established and sound” doctrine “that the jury has no concern with the consequences” of a verdict, but stated that the doctrine “d[id] not apply” to the situation before it. 254 F. 2d, at 728. According to the court, although jurors generally were “aware of the meanings of verdicts of guilty and not guilty,” they were unfamiliar with the meaning of an NGI verdict. Ibid. The court concluded that jurors had “a right to know” the meaning of an NGI verdict “as accurately as [they] kno[w] by common knowledge the meaning of the other two possible verdicts.” Ibid.
The acquittal of John Hinckley on all charges stemming from his attempt on President Reagan’s life, coupled with the ensuing public focus on the insanity defense, prompted Congress to undertake a comprehensive overhaul of the insanity defense as it operated in the federal courts. The result of this effort was the IDRA. In the IDRA, Congress made insanity an affirmative defense to be proved by the defendant by clear and convincing evidence, and created a special verdict of “not guilty only by reason of insanity.” 18 U. S. C. §§ 17 and 4242(b). In addition, Congress filled the “statutory hole” that had been identified by federal courts, see McCracken, supra, by creating a comprehensive civil commitment procedure. §4243. Under that procedure, a defendant found NGI is held in custody pending a court hearing, which must occur within 40 days of the verdict. § 4243(c). At the conclusion of the hearing, the court determines whether the defendant should be hospitalized or released. §§ 4243(d), (e).
B
At about 4 a.m. on August 25,1990, a police officer stopped petitioner Terry Lee Shannon, a convicted felon, on a street in Tupelo, Mississippi. For reasons not explained in the record before us, the officer asked Shannon to accompany him to the station house to speak with a detective. After telling the officer that he did not want to live anymore, Shannon walked across the street, pulled a pistol from his coat, and shot himself in the chest.
Shannon survived his suicide attempt and was indicted for unlawful possession of a firearm by a felon in violation of 18 U. S. C. § 922(g)(1). At trial, he raised the insanity defense, and asked the District Court to instruct the jury that he would be involuntarily committed if the jury returned an NGI verdict. The District Court refused to give Shannon’s proposed charge. Instead, it instructed the jury “to apply the law as [instructed] regardless of the consequence,” and that “punishment . . . should not enter your consideration or discussion.” App. A-27 to A-28. The jury returned a guilty verdict.
The Court of Appeals for the Fifth Circuit affirmed Shannon’s conviction. 981 F. 2d 759 (1993). The court noted that under its pre-IDRA precedent, juries were not to be instructed concerning the consequences of an insanity acquittal. Id., at 761-762 (discussing United States v. McCracken, 488 F. 2d 406 (CA5 1974)). Turning to the text of the IDRA, the court observed that Congress had “said nothing about informing juries of the consequences” of an NGI verdict. 981 F. 2d, at 764. Because there was no “statutory requirement” to the contrary, the court “adhere[d] to the established axiom that it is inappropriate for a jury to consider or be informed about the consequences of its verdict.” Ibid.
We granted certiorari, 510 U. S. 943 (1993), in order to consider whether federal district courts are. required to instruct juries with regard to the consequences of an NGI verdict.
II
It is well established that when a jury has no sentencing function, it should be admonished to “reach its verdict without regard to what sentence might be imposed.” Rogers v. United States, 422 U. S. 35, 40 (1975). The principle that juries are not to consider the consequences of their verdicts is a reflection of the basic division of labor in our legal system between judge and jury. The jury’s function is to find the facts and to decide whether, on those facts, the defendant is guilty of the crime charged. The judge, by contrast, imposes sentence on the defendant after the jury has arrived at a guilty verdict. Information regarding the consequences of a verdict is therefore irrelevant to the jury’s task. Moreover, providing jurors sentencing information invites them to ponder matters that are not within their province, distracts them from their factfinding responsibilities, and creates a strong possibility of confusion. See Pope v. United States, 298 F. 2d 507, 508 (CA5 1962); cf. Rogers, supra, at 40.
Despite these familiar precepts, Shannon contends that an instruction informing the jury of the consequences of an NGI verdict is required under the IDRA whenever requested by the defendant. He also argues that such an instruction is required as a matter of general federal criminal practice. We address each argument in turn.
A
To determine whether Congress intended courts to depart from the principle that jurors are not to be informed of the consequences of their verdicts, we turn first, as always, to the text of the statute. The IDRA refers to the subject of jury instructions only once, and that reference occurs in its description of the possible verdicts a jury may return. Under the Act, “the jury shall be instructed to find . . . the defendant — (1) guilty; (2) not guilty; or (8) not guilty only by reason of insanity.” 18 U. S. C. § 4242(b). The text of the Act gives no indication that jurors are to be instructed regarding the consequences of an NGI verdict. As the court below observed, the Act “leaves the jury solely with its customary determination of guilt or innocence.” 981 F. 2d, at 763. The Act’s text thus gives no support to Shannon’s contention that an instruction informing the jury of the consequences of an NGI verdict is required.
Shannon asserts, however, that an express statutory directive is not necessary because, by modeling the IDRA on D. C. Code Ann. §24-301 (1981), Congress impliedly adopted the District of Columbia Circuit’s decision in Lyles and the practice endorsed by that decision of instructing the jury as to the consequences of an NGI verdict. For this argument he relies on Capital Traction Co. v. Hof 174 U. S. 1, 36 (1899), in which we stated:
“By a familiar canon of interpretation, heretofore applied by this court whenever Congress ... has borrowed from the statutes of a State provisions which had received in that State a known and settled construction before their enactment by Congress, that construction must be deemed to have been adopted by Congress together with the text which it expounded, and the provisions must be construed as they were understood at the time in the State.”
See also Carolene Products Co. v. United States, 323 U. S. 18, 26 (1944) (“[T]he general rule [is] that adoption of the wording of a statute from another legislative jurisdiction carries with it the previous judicial interpretations of the wording”); Cathcart v. Robinson, 5 Pet. 264, 280 (1831). The canon of interpretation upon which Shannon relies, however, is merely a “presumption of legislative intention” to be invoked only “under suitable conditions.” Carotene Products, supra, at 26. We believe that the “conditions” are not “suitable” in this case. Indeed, although Congress may have had the District of Columbia Code in mind when it passed the IDRA, see United States v. Crutchfield, 893 F. 2d 376, 378 (CADC 1990), it did not, in the language of Hof, “borrow” the terms of the IDRA from the District of Columbia Code. Rather, Congress departed from the scheme embodied in D. C. Code Ann. §24-301 in several significant ways.
The IDRA, for example, requires a defendant at trial to prove insanity by clear and convincing evidence, 18 U. S. C. § 17(b); the District of Columbia statute, by contrast, employs a preponderance standard, D. C. Code Ann. § 24 — 301(j). A commitment hearing must be held under the IDRA within 40 days of an NGI verdict, 18 U. S. C. § 4243(c); the period is 50 days under the District of Columbia scheme, D. C. Code Ann. § 24-301(d)(2)(A). Under the IDRA, a defendant whose offense involved bodily injury to another or serious damage to another’s property, or the substantial risk thereof, must demonstrate at the hearing by clear and convincing evidence that he is entitled to release, 18 U. S. C. § 4243(d); under the District of Columbia scheme, an acquittee, regardless of the character of his offense, need only meet the preponderance standard, D. C. Code Ann. § 24-301(k)(3). The IDRA provides that an acquittee, once committed, may be released when he no longer presents a substantial risk of harm to others or to their property, 18 U. S. C. § 4243(f); an acquittee under the District of Columbia system may be released from commitment when he “will not in the reasonable future be dangerous to himself or others,” D. C. Code Ann. §24-301(e). Finally, in the IDRA, Congress rejected the broad test for insanity that had been utilized under the District of Columbia provision, and instead adopted a more restrictive formulation under which a person is deemed insane if he is unable “to appreciate the nature and quality or the wrongfulness of his acts.” 18 U. S. C. § 17(a). We believe that these significant differences between the IDRA and D. C. Code Ann. § 24-301 render the canon upon which Shannon relies inapplicable in this case.
Alternatively, Shannon contends that a provision explicitly requiring the instruction is unnecessary for a different reason: namely, that Congress made its intention to adopt the Lyles practice crystal clear in the IDRA’s legislative history. In particular, Shannon points to the following statement in the Senate Report:
“The Committee endorses the procedure used in the District of Columbia whereby the jury, in a case in which the insanity defense has been raised, may be instructed on the effect of a verdict of not guilty by reason of insanity. If the defendant requests that the instruction not be given, it is within the discretion of the court whether to give it or not.” S. Rep. No. 98-225, p. 240 (1983) (footnotes omitted).
Members of this Court have expressed differing views regarding the role that legislative history should play in statutory interpretation. Compare County of Washington v. Gunther, 452 U. S. 161, 182 (1981) (Rehnquist, J., dissenting) (“[I]t [is] well settled that the legislative history of a statute is a useful guide to the intent of Congress”), with Wisconsin Public Intervenor v. Mortier, 501 U. S. 597, 617 (1991) (Scalia, J., concurring in judgment) (legislative history is “unreliable ... as a genuine indicator of congressional intent”). We are not aware of any case, however (and Shannon does not bring one to our attention), in which we have given authoritative weight to a single passage of legislative history that is in no way anchored in the text of the statute. On its face, the passage Shannon identifies does not purport to explain or interpret any provision of the IDRA. Rather, it merely conveys the Committee’s “endorsement” of the Lyles “procedure” — a procedure that Congress did not include in the text of the Act. To give effect to this snippet of legislative history, we would have to abandon altogether the text of the statute as a guide in the interpretative process. We agree with the District of Columbia Circuit that “courts have no authority to enforce [a] principle] gleaned solely from legislative history that has no statutory reference point.” International Brotherhood of Elec. Workers, Local Union No. 474, AFL-CIO v. NLRB, 814 F. 2d 697, 712 (1987) (emphasis deleted). We thus conclude that there is no support in the Act for the instruction Shannon seeks.
B
Setting the Act aside, Shannon argues that the instruction he proposes is required as a matter of general federal criminal practice. Presumably, Shannon asks us to invoke our supervisory power over the federal courts. According to Shannon, the instruction is necessary because jurors are generally unfamiliar with the consequences of an NGI verdict, and may erroneously believe that a defendant who is found NGI will be immediately released into society. Jurors who are under this mistaken impression, Shannon continues, may also fear that the defendant, if released, would pose a danger to the community. Shannon concludes that such jurors, in order to ensure that the defendant will not be released, may be tempted to return a guilty verdict in a ease in which an NGI verdict would be appropriate.
Even assuming Shannon is correct that some jurors will harbor the mistaken belief that defendants found NGI will be released into society immediately — an assumption that is open to debate — the jury in his case was instructed “to apply the law as [instructed] regardless of the consequence,” and that “punishment... should not enter your consideration or discussion.” App. A-27 to A-28. That an NGI verdict was an option here gives us no reason to depart from “the almost invariable assumption of the law that jurors follow their instructions.” Richardson v. Marsh, 481 U. S. 200, 206 (1987). Indeed, although it may take effort on a juror’s part to ignore the potential consequences of the verdict, the effort required in a case in which an NGI defense is raised is no different from that required in many other situations. For example, if the Government fails to meet its burden of proof at trial, our judicial system necessarily assumes that a juror will vote to acquit, rather than to convict, even if he is convinced the defendant is highly dangerous and should be incarcerated. We do not believe that the situation involving an NGI verdict should be treated any differently.
We also are not persuaded that the instruction Shannon proposes would allay the fears of the misinformed juror about whom Shannon is concerned. “[I]f the members of a jury are so fearful of a particular defendant’s release that they would violate their oaths by convicting [the defendant] solely in order to ensure that he is not set free, it is questionable whether they would be reassured by anything short of an instruction strongly suggesting that the defendant, if found NGI, would very likely be civilly committed for a lengthy period.” United States v. Fisher, 10 F. 3d 115, 122 (CA3 1993), cert. pending, No. 93-7000. An accurate instruction about the consequences of an NGI verdict, however, would give no such assurance. Under the IDRA, a postverdict hearing must be held within 40 days to determine whether the defendant should be released immediately into society or hospitalized. See 18 U. S. C. §§ 4243(c), (d). Thus, the only mandatory period of confinement for an insanity acqúittee is the period between the verdict and the hearing. Instead of encouraging a juror to return an NGI verdict, as Shannon predicts, such information might have the opposite effect — that is, a juror might vote to convict in order to eliminate the possibility that a dangerous defendant could be released after 40 days or less. Whether the instruction works to the advantage or disadvantage of a defendant is, of course, somewhat beside the point. Our central concern here is that the inevitable result of such an instruction would be to draw the jury’s attention toward the very thing — the possible consequences of its verdict— it should ignore.
Moreover, Shannon offers us no principled way to limit the availability of instructions detailing the consequences of a verdict to cases in which an NGI defense is raised. Jurors may be as unfamiliar with other aspects of the criminal sentencing process as they are with NGI verdicts. But, as a general matter, jurors are not informed of mandatory minimum or maximum sentences, nor are they instructed regarding probation, parole, or the sentencing range accompanying a lesser included offense. See United States v. Thigpen, 4 F. 3d 1573, 1578 (CA11 1993) (en banc), cert. pending, No. 93-6747; United States v. Frank, 956 F. 2d 872, 879 (CA9 1991), cert. denied, 506 U. S. 932 (1992). Because it is conceivable that some jurors might harbor misunderstandings with regard to these sentencing options, a district court, under Shannon’s reasoning, might be obligated to give juries information regarding these possibilities as well. In short, if we pursue the logic of Shannon’s position, the rule against informing jurors of the consequences of their verdicts would soon be swallowed by the exceptions.
Finally, Congress’ recent action in this area counsels hesitation in invoking our supervisory powers. As noted above, the IDRA was the product of a thorough and exhaustive review of the insanity defense as used in the federal courts. Given the comprehensive nature of the task before it, Congress certainly could have included a provision requiring the instruction Shannon seeks. For whatever reason, Congress chose not to do so. Under these circumstances, we are reluctant to depart from well-established principles of criminal practice without more explicit guidance from Congress.
Ill
Although we conclude that the IDRA does not require an instruction concerning the consequences of an NGI verdict, and that such an instruction is not to be given as a matter of general practice, we recognize that an instruction of some form may be necessary under certain limited circumstances. If, for example, a witness or prosecutor states in the presence of the jury that a particular defendant would “go free” if found NGI, it may be necessary for the district court to intervene with an instruction to counter such a misstatement. The appropriate response, of course, will vary as is necessary to remedy the specific misstatement or error. We note this possibility merely so that our decision will not be misunderstood as an absolute prohibition on instructing the jury with regard to the consequences of an NGI verdict. Our observations in this regard are not applicable to Shannon’s situation, however, for there is no indication that any improper statement was made in the presence of the jury during his trial.
* * *
Because the District Court properly refused to give the instruction Shannon requested, we affirm.
So ordered.
See also United States v. Brawner, 471 F. 2d 969, 996 (CADC 1972) (en banc); United States v. Cohen, 733 F. 2d 128, 129-131 (CADC 1984) (en banc); United States v. Thigpen, 4 F. 3d 1573, 1576, and n. 1 (CA11 1993) (en banc), cert. pending, No. 93-6747.
Shannon asked the court to give either of the two following instructions: (1) “Tn the event it is your verdict that [Shannon] is not guilty only by reason of insanity, it is required that the Court commit [him]’ or (2) “ ‘[Y]ou should know that it is required that the Court commit [Shannon] to a suitable hospital facility until such time as [he] does not pose a substantial risk of bodily injury to another or serious damage to the property of another.’ ” App. A-22.
In addition to the court below, the Ninth and Eleventh Circuits recently have reaffirmed their pre-IDRA holdings that juries generally should not be instructed concerning the consequences of an insanity acquittal. See United States v. Frank, 956 F. 2d 872, 880-882 (CA9 1991), cert. denied, 506 U. S. 932 (1992); Thigpen, 4 F. 3d, at 1578. The Third Circuit has held that the decision to give such an instruction should be left to “the sound discretion of the trial judge.” United States v. Fisher, 10 F. 3d 115, 122 (1993), cert. pending, No. 93-7000. A panel of the Second Circuit recently divided three ways on the issue. See United States v. Blume, 967 F. 2d 45, 50 (1992) (Newman, J., concurring) (“I believe the instruction should always be given unless the defendant prefers its omission. Judge Winter believes the instruction should normally not be given. Judge Lumbard believes that the decision whether to give the instruction should be left to the discretion of the trial judge”).
Particularly in capital trials, juries may be given sentencing responsibilities. See, e. g., Simmons v. South Carolina, ante, p. 154. It is undisputed that the jury had no such responsibilities in Shannon’s case.
In Rogers, the jury had been deliberating for almost two horn’s without reaching a verdict. After the trial court informed the jury that it would accept a verdict of “Guilty as charged with extreme mercy of the Court,” the jury returned such a verdict within minutes. 422 U. S., at 36-37 (internal quotation marks omitted). We concluded that, instead of giving the jurors information about sentencing (that is, that they could recommend “extreme mercy”), the trial court should have “admoni[shed] [them] that [they] had no sentencing function and should reach [their] verdict without regard to what sentence might be imposed.” Id., at 40.
District of Columbia Code Ann. §24-301 continued to govern the operation of the insanity defense in federal criminal prosecutions in the District of Columbia until the passage of the IDRA. Cf. United States v. Crutchfield, 893 F. 2d 376, 377-379 (CADC 1990) (holding that the IDRA applies prospectively to insanity acquittees committed after its enactment).
Under the District of Columbia system, the courts had defined insanity as either the lack of substantial capacity to conform one’s conduct to the requirements of the law or the lack of substantial capacity to appreciate the wrongfulness of one’s acts. See Brawner, 471 F. 2d, at 973-995.
In addition, we note that the canon upon which Shannon relies is a canon of statutory construction. It stems from the notion that a court, in interpreting “borrowed” statutory language, should apply the same construction to that language that was placed upon it by the courts in the jurisdiction from which it was borrowed. In this case, however, the court in the jurisdiction from which the statutory text was supposedly borrowed — that is, the Lyles court — did not purport to construe the language of the District of Columbia Code provision; rather, in holding that jurors should be informed of the consequences of an NGI verdict, the court appears to have relied on its supervisory power over the Federal District Courts in the District of Columbia. Cf. infra, at 584. Thus, we conclude that the canon is also inapplicable in this case because there was no “known and settled construction,” Capital Traction Co. v. Hof, 174 U. S. 1, 36 (1899), of the statute that Congress could have adopted by virtue of borrowing language from the District of Columbia statutory scheme.
In the court below, Shannon made the additional argument that because Congress filled the “gap” that had been identified by the Federal Courts of Appeals prior to the IDRA with a general federal civil commitment procedure, “the practice announced in Lyles must now be applied nationwide.” 981 F. 2d 759, 763 (CA5 1993). We find this argument (which Shannon makes only implicitly before this Court) unpersuasive. As noted above, although the lack of a federal commitment procedure before the passage of the IDRA was one reason for rejecting a Lyles-type instruction, courts generally, and properly, relied additionally on the principle that juries are not to be concerned with the consequences of their verdicts. This principle is not altered by the fact that Congress established a civil commitment procedure. See Thigpen, 4 F. 3d, at 1577.
We are not convinced that jurors are as unfamiliar with the consequences of an NGI verdict as Shannon suggests. It may have been the case in 1957 that, in contrast to verdicts of guilty and not guilty, “a verdict of not guilty by reason of insanity ha[d] no . . . commonly understood meaning.” Lyles v. United States, 254 F. 2d 725, 728 (CADC 1957) (en banc), cert. denied, 356 U. S. 961 (1958). Today, however, there is no reason to assume that jurors believe that defendants found NGI are immediately set free. See Fisher, 10 F. 3d, at 122 (“[H]ighly publicized cases, such as that involving John Hinckley, have dramatized the possibility of civil commitment following an NGI verdict”). See also Blume, 967 F. 2d, at 54 (Winter, J., concurring in result).
As the court below observed, “a jury could assume that due to overcrowded mental hospitals, strapped social services budgets, sympathetic judges, etc., a defendant will be released after only a short period of commitment. To combat the prospect of early release, the jury could simply opt to find him guilty.” 981 F. 2d, at 763, n. 6. Indeed, depending upon the content of the instruction, information regarding the consequences of an NGI verdict could influence a juror’s decision in countless — and unpredictable — ways. See, e. g., Fisher, supra, at 121-122, and n. 7 (describing various scenarios in which sentencing information could induce compromise verdicts in the NGI context).
Question: What is the 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:
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songer_casetyp1_7-3-1
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C
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify 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 - taxes, patents, copyright".
LOUISVILLE PROVISION CO. v. COMMISSIONER OF INTERNAL REVENUE. COMMISSIONER OF INTERNAL REVENUE v. LOUISVILLE PROVISION CO.
Nos. 9940, 9941.
Circuit Court of Appeals, Sixth Circuit.
Feb. 12, 1946.
Rehearing Denied May 28, 1946.
Charles I. Dawson, of Louisville, Ky. (Charles I. Dawson and Woodward, Dawson, Hobson & Fulton, all of Louisville, Ky., on the brief), for petitioner and cross-respondent.
Leland T. Atherton, of Washington, D. C. (Samuel O. Clark, Jr., Sewall Key, Helen R. Carloss, and John F. Costelloe, all of Washington, D. C., on the brief), for respondent and cross-petitioner.
Before HICKS, ALLEN, and MARTIN, Circuit Judges.
ALLEN, Circuit Judge.
These cases arise on petitions to review a decision of the Tax Court of the United States which determined a deficiency in unjust enrichment taxes imposed under § 501(a) (1) of the Revenue Act of 1936, 26 U.S.C.A. Int.Rev.Acts, page 944, for the taxable year of Oct. 1, 1934, to Oct. 1, 1935. The Commissioner had theretofore determined a deficiency of $56,692.64, together with a penalty of $14,173.16. The Tax Court, after exhaustive hearings, reduced the deficiency to $38,840.41, together with a penalty of $9,710.10.
The Commissioner attacks the action of the Tax Court in holding that an item of attorneys’ fees was taxable as an accrued expense, thereby reducing the deficiency theretofore determined, while the taxpayer contends that the decision of the Tax Court is not supported by any evidence and that serious error of law was committed.
The taxpayer, a Kentucky corporation, is engaged in the general packing house business in Louisville, Kentucky, purchasing and slaughtering cattle, sheep, calves and hogs, and purchasing pork, beef and other meat products from other packers. The pork and beef produced by the taxpayer from its own slaughtering is called own-slaughter pork and beef, and that purchased by it from other packers is called purchased pork and beef. Beef so purchased was sold in a fresh state, with the exception of that used in the manufacture of chili, corned beef and sausage. Veal and lamb were sold without processing. The tax to which the taxpayer was subject was a processing tax on pork and pork products arising under the taxing provisions of the Agricultural Adjustment Act, Title 7 U.S.C. § 601 et seq., 7 U.S.C.A. § 601 et seq., enacted, May 12, 1933, and Regulations issued thereunder. Both the taxpayer’s own-slaughter pork and its purchased pork were sold either in a fresh state or after further processing into sausage, cured, smoked, or cooked meats. Fresh hams purchased by the taxpayer were commingled with fresh hams from taxpayer’s own-slaughter hogs, and 99% of taxpayer’s fresh hams, whether purchased or own-slaughter, were processed into smoked hams. Practically all the bacon cuts were processed into bacon and 85% to 90% of the shoulders of hogs were cured and smoked. Sausage was manufactured partly from the taxpayer’s own-slaughter meats and partly from purchased meats. The sausage contained varying percentages of pork and beef, some of it being manufactured exclusively from pork. Hams were boiled and baked, and chili, which is composed entirely of beef, was produced in the sausage department.
The Agricultural Adjustment Act imposed a processing tax upon certain basic agricultural commodities, including hogs. The statute [Title 7 U.S.C. § 609(d) (8), 7 U.S.C.A. § 609(d) (8)], provided that as to the processing of hogs, “the term ‘processing5 means any manufacturing or other processing involving a change in the form of the commodity or its preparation for distribution or use, as defined by regulations of the Secretary of Agriculture; and in prescribing such regulations the Secretary shall give due weight to the customs of the industry.” In accordance with the statute, regulations were promulgated which govern this case.
The Tax Court overruled the Commissioner’s determination as to a number of items which affected the net taxable profit calculated to have been made by the taxpayer during the taxable year, and thus reduced the tax, which was laid upon net income. § 501(a), Revenue Act of 1936. It held that the Commissioner erred (1) in crediting to authorized deductions rent received in the amount of $12,402.80 and allocating $6,672.90 thereof to own-slaughter pork and the remainder to other departments of the taxpayer; (2) in allocating $899.18 of bad debts to own-slaughter pork and using it to reduce the amount of expenses deducted; (3) in refusing to allow the deduction of some $18,000 of attorneys’ fees discussed below. The Tax Court also held that the Commissioner erred in his method of computing sales of own-slaughter and purchased pork. It decided that the computations of gross sales of purchased pork should be based upon live weight rather than upon cost, together with an arbitrary write-up of one and one-half cents a pound, which was the Commissioner’s yardstick. Applying this method of computation, the Tax Court concluded that $222,300.59 was the amount realized from the sale of articles containing purchased pork, being some $43,000.00 more than the amount for the same item computed by the Commissioner and to that extent to the advantage of the taxpayer, for the Tax Court did not impose the tax upon net income from purchased pork transactions.
The Commissioner does not attack the Tax Court’s reversal of his determination on these items with exception of that as to attorneys’ fees; but the taxpayer, emphasizing the errors made by the Commissioner, contends that his action in assessing the deficiency was so arbitrary, inaccurate and unjust as to render the assessment void in its entirety, and to deprive it and each of the findings and computations made in arriving at the deficiency of the usual prima facie presumption of co^ectness. This contention raises the most serious legal problem in the case, for the Tax Court, while finding that certain of the computations were inaccurate, nevertheless gave to other important findings of the Commissioner the full advantage of the prima facie presumption.
The taxpayer attacks as arbitrary the failure of the Commissioner to ascertain an average margin by which to test the extent to which the taxpayer is alleged to have shifted the burden of the tax. The taxpayer was not in business during the six' years preceding the imposition of the federal excise tax, and therefore it urges that the Commissioner, in order to have any basis for holding that the taxpayer shifted the tax, should have determined under § 501(e) (2) (f) (1) printed in the footnote, the average margin of respective concerns engaged in a similar business and similarly circumstanced. The Commissioner made no such determination, and the taxpayer did not request him to do so.
We think the Tax Court ruled correctly that the failure of the Commissioner in this regard was not arbitrary. It is not shown that the taxpayer had made the return required under § 503(b) of the Revenue Act of 1936, 26 U.S.C.A. Int.Rev. Acts, page 948, and Regulations 95, Art. 27 (6), nor elected to rely on the provisions of § 501(e) (2) by filing its return on the basis required by that paragraph. Since the taxpayer thus failed to avail itself of its statutory right to notify the Commissioner that it expected to rely upon the average margin provisions of the statute, it cannot now complain of the Commissioner’s failure to act. Also § 501(f) requires the average margin “when necessary for a fair comparison.” The Tax Court correctly declared that in the absence of proof that data for a six-year period was in fact necessary for comparison, a finding of arbitrariness would be unwarranted. Cf. Lee Wilson & Co. v. Commissioner, 8 Cir., 123 F.2d 232.
Nor did the Commissioner act arbitrarily in ruling that the taxpayer shifted the tax. It is contended that the record contains no evidence whatever to this effect. However, the taxpayer entered the processing tax on its books as part of the cost of the hogs. While it did not bill the tax separately to its customers, nor accept nor contract for a refund in the amount of the tax, its president testified that it endeavored in its business to recover all costs, including federal taxes. The Act contemplated that the consuming public should pay the tax. United States v. Poindexter & Sons Merchandise Co., 8 Cir., 128 F.2d 992, 995, certiorari denied, 317 U.S. 677, 63 S.Ct. 159, 87 L.Ed. 543. The fact that the taxpayer included it in costs, which it endeavored to recover in its prices, creates an inference that the tax was shifted. Colonial Milling Co. v. Commissioner, 6 Cir., 132 F.2d 505, certiorari denied, 318 U. S. 780, 63 S.Ct. 857, 87 L.Ed. 1148. The taxpayer did not satisfactorily rebut this inference.
The errors corrected by the Tax Court did not invalidate the authenticity of the Commissioner’s other detailed computations, nor deprive him as to other items of the advantage of the presumption of accuracy and validity. The Commissioner’s computations are in many respects concededly accurate, for as to his major calculations, such as the amount of sales of fresh pork, smoked hams, smoked meats, etc., the taxpayer’s accountant testified that they were correct.
The taxpayer particularly attacks the action of the Tax Court in giving weight to the presumption when it adopted as the cost of beef used in the sausage department the Commissioner’s figure of some $42,000 as against the taxpayer’s figure of some $52,000. Since the taxpayer’s figure was based not upon actual cost, which was nowhere shown on its books, but upon Chicago prices rather than local Louisville prices, it was not error to adopt the lower calculation.
The taxpayer also vigorously objects to the fact that the Tax Court gave weight to the presumption in adopting the Commissioner’s allocation of expense deductions aggregating $253,684, to own-slaughter pork. The taxpayer’s evidence on this point is unsatisfactory. It admitted that any allocation must be approximate and that many of its totals were not allocated among the various departments. In brief, the errors of the Commissioner were corrected by the Tax Court within the injunction of the Supreme Court in Helver-ing v. Taylor, 293 U.S. 507, 55 S.Ct. 287, 79 L.Ed. 623. The points as to which the Commissioner’s determination was wrong were so separate and distinct from the two items in question here that they do not compel a conclusion that these totals were wrongfully computed.
Finally, it is urged that the deficiency as determined by the Tax Court is not supported by any substantial evidence. The taxpayer lists the overstatement of five items aggregating $122,565.63. Of these the Tax Court corrected four items substantially to the advantage of the taxpayer; but it still contends that the income from own-slaughter pork is overstated by over $100,000.00. This item, the taxpayer claims, was overstated, due to the fact that the Commissioner left in the net income the sales value attributable to the beef in sausage, and that the Tax Court did not correct this. It contends that the Commissioner, in arriving at the net taxable income, arbitrarily overstated the gross income from own-slaughter pork and arbitrarily understated the deductions therefrom, unfairly computing net loss, and that the error was not corrected by the Tax Court.
We think Dobson v. Commissioner, 320 U.S. 489, 64 S.Ct. 239, 88 L.Ed. 248, has peculiar application to this case. The Tax Court, aided by its staff of expert accountants, gave long and careful consideration to this case. Its detailed and well-considered opinion deals with every important factual aspect of the controversy. It is not here material whether some other inference might fairly be drawn from the facts. Boehn v. Commissioner, 66 S.Ct. 120; Commissioner v. Scottish American Co., 323 U.S. 119, 65 S.Ct. 169. We have jurisdiction only to decide whether the ruling of the Tax Court presents any clear-cut mistake of law. Examining the record to determine whether the findings are supported by any evidence, we conclude not only that substantial evidence exists, but that as to most of the items controverted there is ample evidence.
The burden was on the taxpayer to show that the Commissioner’s determinations on the points here at issue were incorrect, and it has not borne this burden. It had to show the beef content of the sausage items, and this it has not done. In fact it appears that the, pork content in sausage was substantially higher than that testified by the taxpayer’s accountant. The taxpayer asserted that the beef content in sausage had a sales value of over $118,-000.00; but this is not demonstrated. Typical of the gaps in appellant’s figures is the fact that the item of “Meats ' from other packers,” which is listed in the account of the sausage department, totaling $39,511, in no way indicates how much of the meat so purchased was beef and how much pork, nor does the taxpayer’s accountant give this information.
Also, under the applicable regulations this tax should have been laid not only upon .own-slaughter pork, but upon purchased pork. The amount of $222,-300.59, calculated by the Tax Court to be the amount realized from the sale of articles containing purchased pork should have been included in its computation of the net taxable income.
Section 609(a) of the Agricultural Adjustment Act (Title 7 U.S.C., 7 U.S.C.A.), provided that the processing tax shall be levied, assessed and collected upon the first domestic processing of the commodity. Under paragraph (d) (8) of the section, “processing” means “any manufacturing or other processing involving a change in the form of the commodity or its preparation for distribution or use, as defined by regulations of the Secretary of Agriculture. * * *” Section 501(f) (2) of the Revenue Act of 1936 provided thát the term “cost” means in the case of articles manufactured or produced by the taxpayer the cost to the taxpayer of “materials entering into the articles.” It is true that the regulations promulgated on October 18, 1933, defined the term “first domestic processing” as being “the slaughtering of hogs for market.” However, subsequent regulations issued by the Secretary of Agriculture on October 29, 1934, and effective November 1, 1934, thus being in force for 364 days of the taxable year involved herein, provided:
“The term ‘first domestic processing1 means the slaughter of hogs for market; except that (a) in the case of a producer or feeder who shall distribute the carcass or any edible hog product diréctly to a consumer, the term ‘first processing* means the preparation of the carcass or any edible hog product for sale, transfer or exchange or for use by the consumer, and only the edible product or products so sold, transferred, exchanged or distributed by or for the producer or feeder shall be deemed to have been processed, and (b) in the case of a producer or feeder who shall sell, transfer or exchange any carcass or edible hog product (1) to any person engaged in reselling, rehandling, cutting, trimming, rendering, or otherwise preparing such products for market (including, but not limited to, retailers, wholesalers, distributors, butchers, packers, factors, or commission merchants), or (2) to any restaurant, hotel, club, hospital, institution, or establishment of similar kind or character, the term ‘first domestic processing’ means the initial act of such person, restaurant, hotel, club, hospital, institution, or establishment which involves the preparation of the carcass or any edible hog product for further distribution or use.”
These regulations were not cited nor mentioned in the record, nor at the hearing in this court.
Under the express requirement of the above regulations not only was the net income from the sale of own-slaughter hogs taxable, but also the net income from the curing and smoking of hams and bacon and other pork products and the preparation of sausage, whether made from own-slaughter pork or purchased pork. The taxpayer was not only a producer which slaughtered its own hogs; it also “engaged in reselling, rehandling, cutting, trimming, rendering, or otherwise preparing” edible hog products which it had purchased from other producers. The first domestic processing upon which the processing tax was to be levied, therefore, included not only the slaughter of hogs for market, but also taxpayer’s initial acts in preparing purchased pork for further distribution or use. The tax should have been laid upon the taxpayer’s edible products, containing purchased pork as well as own-slaughter pork. This would add to the net income received from the sale of articles containing own-slaughter pork such an increased amount that, the finding of deficiency may well err on the side of being too small rather than too large. Since the Commissioner specifically waived any question of error in this calculation, however, we do not remand the case for further computation, but simply affirm upon this phase of the matter.
The Tax Court erred in its determination that a deduction should be allowed the taxpayer for legal fees incurred in the suit instituted to contest the constitutionality of the Agricultural Adjustment Act. The oral contract for the fee was contingent upon the success of the suit. The Tax Court reduced the deduction of $20,000 claimed by the taxpayer and limited it to about $18,000, this being the amount of the fee based upon taxes imposed during the taxable year. The Commissioner had allowed this same fee as a deduction from net income tax for 1935, but he refused to allow it as a deduction in determining the income subject to the unjust enrichment tax, upon the ground that the item was not accruable within the taxable year.
Section 501(c) (1) of the Revenue Act of 1936 allows a deduction from the gross income from sales of articles with respect to which the processing tax was imposed but not paid, of “the allocable portion of the deductions from gross income for the taxable year which are allowable under the applicable Revenue Act.”
The Agricultural Adjustment Act was held invalid on Jan. 6, 1936, and the fee was paid the same month. The item was not accrued on the taxpayer’s books in 1935. The Tax Court seemed to think that since the agreement was definite in amount, being for 20% of the processing taxes saved if the law should be declared unconstitutional, and since the services were performed during the taxable year and the processing taxes were fixed in amount for the year, that this was a business expense properly accrued as to processing taxes incurred for 1935. We think that the fee could not be deducted as an accrued business expense because the taxpayer’s liability did not become settled and the amount was uncertain during the year 1935. The taxpayer recognized the contingency of the item by not accruing it on its books. A taxpayer “may not accrue an expense the amount of which is unsettled or the liability for which is contingent * * Security Flour Mills Co. v. Commissioner, 321 U.S. 281, 64 S.Ct. 596, 597, 88 L.Ed. 725; Dixie Pine Products Co. v. Commissioner, 320 U.S. 516, 64 S.Ct. 364, 88 L.Ed. 270; Commissioner v. Blaine, Mackay, Lee Co., 3 Cir., 141 F. 2d 201.
The case is remanded to the Tax Court with instructions to disallow the deduction for legal fees. In all other respects the order is affirmed.
Section 501, Revenue Act of 1936.
“(a) The following taxes shall be levied, collected, and paid for each taxable year (in addition to any other tax on net income), upon the net income of every person which arises from the sources specified below:
“(1) A tax equal to 80 per centum of that portion of the net income from the sale of articles with respect to which a Federal excise tax was imposed on such person but not paid which is attributable to shifting to others to any extent the burden of such Federal excise tax and which does not exceed such person’s net income for the entire taxable year from the sale of articles with respect to which such Federal excise tax was imposed.
* * £ * * * * *
“(e) For the purposes of subsection (a) (1), (2), and (3), the extent to which the taxpayer shifted to others the burden of a Federal excise tax shall be presumed to be an amount computed as follows:
“(1) From the selling price of the articles there shall be deducted the sum of (A) the cost of such articles plus (B) the average margin with respect to the quantity involved; or
“(2) If the taxpayer so elects by filing his return on such basis, from the aggregate selling price of all articles with respect to which such Federal excise tax was imposed and which were sold by him during the taxable year (computed without deduction of reimbursement to purchasers with respect to such Federal excise tax) there shall be deducted the aggregate cost of such articles, and the difference shall be reduced to a margin per unit in terms of the basis on which the Federal excise tax was imposed. The excess of such margin per unit over the average margin (computed for the same unit) shall be multiplied by the number of such units represented by the articles with respect to which the computation is being made;
“(f) As used in this section—
“(1) The term ‘margin’ means the difference between the selling price of articles and the cost thereof, and the term ‘average margin’ means the average difference between the selling price and the cost of similar articles sold by the taxpayer during his six taxable years preceding the initial imposition of the Federal excise tax in question, except that if during any part of such six-year period the taxpayer was not in business, or if his records for any part of such period are so inadequate as not to furnish satisfactory data, the average margin of the taxpayer for such part of such period shall, when necessary for a fair comparison, be deemed to be the average margin, as determined by the Commissioner, of representative concerns engaged in a similar business and similarly circumstanced.”
Question: What is the specific issue in the case within the general category of "economic activity and regulation - taxes, patents, copyright"?
A. state or local tax
B. federal taxation - individual income tax (includes taxes of individuals, fiduciaries, & estates)
C. federal tax - business income tax (includes corporate and parnership)
D. federal tax - excess profits
E. federal estate and gift tax
F. federal tax - other
G. patents
H. copyrights
I. trademarks
J. trade secrets, personal intellectual property
Answer:
|
songer_procedur
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant.
Bernard SAMOFF, Regional Director of the Fourth Region of the National Labor Relations Board, for and on Behalf of the NATIONAL LABOR RELATIONS BOARD v. WILLIAMSPORT BUILDING AND CONSTRUCTION TRADES COUNCIL, AFL-CIO, Appellant in 19204, and Local 812, International Brotherhood of Electrical Workers, AFL-CIO. Appeal of LOCAL 812, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO, in 19205.
Nos. 19204, 19205.
United States Court of Appeals, Third Circuit.
Argued May 4, 1971.
Decided Oct. 18, 1971.
Michael Brodie, Pechner, Sacks, Cantor & Dorfman, Philadelphia, Pa., for appellants.
Charles Both, N.L.R.B., Washington, D. C., for appellee.
Before KALODNER, VAN DUSEN and ALDISERT, Circuit Judges.
OPINION OF THE COURT
KALODNER, Circuit Judge.
The District Court, by Order dated May 25, 1970, issued a temporary injunction against the appellant unions in proceedings instituted by the appellee Regional Director of the NLRB, pursuant to § 10 (Z) of the National Labor Relations Board Act, as amended. The temporary injunction restrained the appellants from engaging in unfair labor practices in violation of § 8(b) (4)(i), (ii) (B) of the Act, which prohibits certain types of secondary boycotts until final adjudication by the National Labor Relations Board of pending charges relating to such practices.
The appellants have appealed from the District Court’s Order granting injunc-tive relief. They have also appealed from an Order of the District Court denying their application “to compel” the Regional Director to answer certain questions which he refused to answer during the taking of his deposition prior to the hearing on the injunction petition. The appellants contend that the denial of their application was an “unreasonable restriction” of discovery procedures available to them under the Federal Rules of Civil Procedure which so impeded their defense in the injunction action as to constitute prejudicial error.
The stated contention presents the critical question whether the District Court, under the prevailing circumstances, committed prejudicial error in refusing to compel the Regional Director to answer certain questions during the prehearing deposition.
Relevant to the resolution of this issue are these undisputed facts:
The Regional Director filed his petition for temporary injunction on April 9, 1970. On April 10, 1970, the District Court issued an order directing, inter alia, the appellants to answer the petition and to appear before the Court on April 24, 1970 to show cause why they should not be enjoined as requested in the petition.
On April 17, 1970, the appellants filed a Notice for the taking of the oral deposition of the Regional Director on April 21, 1970, pursuant to Rule 26 F.R.Civ.P. The Notice requested the production of “such documents in his file as he believes support the allegation of the Petition that the Petitioner has reasonable cause to believe that Respondents have violated” § 8(b)(4)(B) of the National Labor Relations Act. No subpoena was issued to compel his appearance, as provided for by Rule 45(a) and (b) F.R. Civ.P. The Director appeared for the taking of his deposition. He, however, refused to answer certain questions, which appellants contend were asked “for the purpose of discovering both the facts on which the Regional Director intended to rely and such additional facts, known to him, as might have aided the Union in its defense. * * * ”
On April 23, 1970, the appellants filed with the District Court an “Application For Order Under Rule 37(a) F.R.C.P.” which asked the Court “to compel” the Director to answer the questions he had refused to answer. Oral argument was heard on this Application on April 24, 1970, and the Court reserved decision.
The injunction hearing proceeded on April 24, 1970, when the Director presented the testimony of his witnesses in support of his injunction petition. The Director’s witnesses were subjected to extensive cross-examination by the appellants. The hearing was then continued to May 1, 1970, to permit the appellants three days to prepare their defense in light of the testimony presented by the Director. The appellants presented their testimony on May 1, 1970. On May 24, 1970, the District Court, as earlier stated, filed an Order granting the temporary injunction, and the Order denying the appellants’ Application “to compel” the Director to answer the questions which he had refused to answer when his deposition was taken on April 21, 1970.
The District Court, in its Opinion at 313 F.Supp. 1105 (M.D.Pa.1970), after ruling that discovery was available to respondents in a § 10 (l) temporary injunction proceeding, and that the Director did not contend to the contrary, said (P. 1109):
“ -» * * The petition filed by the government had sufficient clarity upon which respondents could have prepared an adequate defense. Respondents heard all of the petitioner’s testimony and their counsel fully cross-examined petitioner’s witnesses three days before they were obliged to defend the case. In consequence, the court concludes that sufficient discovery had been made available to the respondents, and considering the necessity of expeditious proceedings, no further discovery was necessary. * -x- *»
On review of the record we are of the opinion that the District Court, under the prevailing circumstances, acted within the scope of its permissible discretion in denying the appellants’ Application to compel the Director to answer the questions he refused to answer when his deposition was taken.
As we recently said:
“The injunctive proceedings allowed by Section 10(1) are an attempt by the National Labor Relations Act to provide an expeditious remedy to prevent a party from obtaining an unlawful result before the Board can consider the legality of the action in its ordinary course of business.” Terminal Freight Cooperative Association and Terminal Freight Handling Company v. National Labor Relations Board, 447 F.2d 1099, 1102 (decided August 30, 1971).
The scheme of Section 10(1) would be thwarted and frustrated if a District Court, in such a proceeding, should be stripped of its general right to exercise its discretion with respect to the administration of the discovery rules.
There remains this to be said with respect to the appeals from the District Court’s Order granting the temporary injunction.
The scope of our review as to these appeals is limited to two considerations :
(1) Was the District Court clearly erroneous under Rule 52(a) F.R.Civ. P., 28 U.S.C.A., in its finding that the Regional Director had reasonable cause to believe that the appellant unions had engaged in unfair labor practice or practices ?; and
(2) Did the District Court abuse its judicial discretion in issuing the temporary injunction?
On review of the record we cannot say that the District Court was “clearly erroneous” in its fact-finding that there was “reasonable cause” to believe that the appellant unions were engaged in acts and conduct in violation of § 8(b)(4) (i), (ii)(B). Nor can we say that the District Court abused its discretion in issuing the temporary injunction in its Order of May 25, 1970. We note, parenthetically, that the appellants have not on their appeal from the stated Order attacked the District Court’s findings of fact set forth in its Opinion.
For the reasons stated, the Orders of the District Court, entered May 25, 1970, will be affirmed.
. 29 U.S.C.A. § 160(1).
. 29 U.S.C.A. § 158(b) (i), (ii) (B).
. The Director here says that his refusal to answer certain questions was premised on the grounds “that the questions were improper in that they were addressed to matters relating to the investigation conducted by the Director’s office, internal communications of Agency personnel, inquired into the mental process of the Director, and were irrelevant and immaterial and requested disclosure of privileged information.”
. Cuneo v. Local No. 825, International Union of Operating Engineers, AFL-CIO, 306 F.2d 394, 397 (3rd Cir. 1962).
Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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songer_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.
CHICAGO AND NORTH WESTERN RAILWAY COMPANY, Appellant, v. Fernando E. TYLER, Appellee.
No. 72-1576.
United States Court of Appeals, Eighth Circuit.
Submitted April 10, 1973.
Decided Aug. 7, 1973.
M. T. Woods, Sioux Falls, S. D., for appellant.
Warren W. May, Pierre, S. D., for ap-pellee.
Before LAY and STEPHENSON, Circuit Judges, and TALBOT SMITH, Senior District Judge.
Hon. Talbot Smith, United States Senior District Judge, Eastern District of Michigan, sitting by designation.
TALBOT SMITH, Senior District Judge.
The controversy before us arises out of damages suffered by a train of the plaintiff Chicago and North Western Railway Company (hereafter the railroad) due to a washout of its tracks and subsequent derailment of its train.
On the night of June 9, 1971, the area involved suffered, in a short period, an extremely heavy downpour of rain. It was of such intensity that it was characterized by. one witness as the “hardest rain he had ever seen” in a lifetime in South Dakota and by another as one that might occur in a period from once in a hundred years to once in a thousand, depending upon the accuracy of the measurements made of the quantity of the downpour. As a result there was a widespread flooding of the area with water from many sources, including the Tyler dam, which breached. This dam had been built by Mr. Tyler on his ranch for the control of erosion and was located north of the line of the railroad. The train involved, traversing the flooded area, was derailed, a bridge torn out, and cars and locomotives severely damaged. The railroad brought this action against Mr. Tyler for damages to the extent of over $147,000. A jury verdict in defendant’s favor resulted, with subsequent appeal to this court.
The issues presented to us by the appellant relate solely to the court’s instructions, and they, in turn, relate to the substantive law of South Dakota respecting absolute liability (the so-called rule of Rylands v. Fletcher), nuisance, and so-called “Acts of God.”
It was the theory of the railroad that there was absolute liability on defendant Tyler’s part under the Rylands v. Fletcher rule, that the dam was negligently constructed and maintained, and (independently thereof) that it was a nuisance, making it unnecessary for the railroad to prove Tyler’s negligence, thus coming in full circle back to the theory upon which Rylands is based. The defendant, for his part, denied the applicability of the Rylands rule, under South Dakota law, to the facts at bar, denied his own negligence, asserted contributory negligence in the operation of the train, rejected the nuisance theory, and argued that an Act of God was solely responsible for the situation presented.
The District Court denied the applicability of the Rylands rule upon plaintiff’s motion for directed verdict, holding that although the South Dakota Supreme Court had considered the Rylands rule in two cases' it had neither adopted nor rejected such rule and, in any event, that the Rylands rule urged by the railroad was “not applicable to the facts in this situation.”
We agree. Although it has been said with respect to the English cases involving the Rylands rule that from such “welter of eases it is impossible to extract any consistent principle” the American view has, according to a distinguished student, reached the position that the rule is applied “only to the thing out of place, the abnormally dangerous condition or activity which is not a ‘natural’ one where it is.” Thus the storage of water in an area of sparse rainfall was held, in Turner v. Big Lake Oil Co., 128 Tex. 155, 96 S.W.2d 221 (1936) to be “a natural or necessary and common use of the land” and we note, as well, the use of this concept by the South Dakota court in Midwest Oil Co. v. City of Aberdeen, supra, where, in denying absolute liability sought to be imposed upon the city as a result of a break in a water main, the court pointed out that “Water mains are in universal use in cities.” Similarly here. The land owner did no more than construct a dam, normally empty, across a dry watercourse for erosion purposes. The record discloses that the construction of dams in this area for similar purposes is, if not a common practice, certainly not unusual. “I am a soil conservation technician,” testified one witness. “My job is concerned with dams, drainage, irrigation dams, stock dams and the like, in Stanley and Hughes [site of the Tyler dam] counties. In the last few years we’ve built about 10 or 12 dams, up to as high as 100 to 150 dams a year.” Our review of the cases cited to us by both parties, as applied to the facts in the record before us, confirms the conclusion of the trial court that the Rylands rule as urged by the appellant, is not applicable hereto.
Plaintiff’s theory of nuisance is no more helpful to it. Plaintiff complains that the court erred in instructing the jury that the “maintenance or rebuilding of a dam across a natural drainway is not a nuisance which renders the owner absolutely or strictly liable and that liability depends upon negligence.” Corollary thereto were additional instructions set out in the margin hereof.
The term “nuisance” is a sort of legal grab bag. It was Thayer who said, with ample support, that “ ‘Nuisance’ is a good word to beg a question with. It is so comprehensive a term, and its content is so heterogeneous, that it scarcely does more than state a legal conclusion that for one or another of widely varying reasons the thing stigmatized as a nuisance violates the rights of others.” We see no need to attempt the exploration of the ramifications of the various “kinds” of nuisance. Suffice for our purposes that what is being urged by the railroad is that facet of nuisance described by Mr. Justice Cardozo, among others, as “absolute nuisance,” the situation where one acts at one’s peril, such as “one who digs a hole in a highway.”
But the difficulty with the plaintiff railroad’s attempt to impose under the “absolute nuisance” doctrine the liability denied under the Rylands doctrine of “absolute liability” is that both legal theories rest upon essentially the same doctrinal foundation. As we have seen, the absolute liability of Rylands rests upon an abnormal use in an inappropriate place. Similarly, it is clear that strict liability under the doctrine of absolute nuisance exists where an unnatural use of the land is made, involving an extreme hazard to the safety of the plaintiff in the use of his land. We are cited to no South Dakota cases as precedent but the principle is well illustrated by the Kansas case of Gilbert v. Davidson Const. Co., 110 Kan. 298, 203 P. 1113 (1922) wherein the defendant operated a rock crusher in the street close to plaintiff’s home, resulting in injury to and destruction of plaintiff’s household goods, clothing, and food. A jury verdict for damages was sustained on appeal, despite the lack of showing of negligence on defendant’s part, defendant insisting that it was merely “an ordinary rock crusher, operated in the ordinary way, and with the appliances usually employed.” In affirming, however, the court pointed out that from its location alone its operation constituted a nuisance and “The fact that the business itself is lawful, and the machine skillfully operated, did not give the defendant a right to put and use it in front of a residence where is [sic] necessarily would cause injury and loss.” The principle here involved was well expressed, with numerous citations of authority, in Prosser on Torts, 4th Ed. (1971) § 87: — “ [A] nuisance may arise where the defendant carries on in an inappropriate place an abnormally dangerous enterprise,” where it “necessarily involves so great a risk to its surroundings that its location may be considered unreasonable, and a strict liability may be imposed.” From what we have pointed out heretofore with respect to abnormal use under the Rylands doctrine it is clear that there was no more justification upon these facts for the court’s application of the absolute nuisance theory and the court did not err in the instruction given or in its denial of the requested instructions.
We find no error, under the facts before us, of the court’s instruction on Acts of God. The instruction given followed substantially that in Northwestern Bell Telephone Co. v. Henry Carlson Co., 165 N.W.2d 346 (1969) and correctly stated the South Dakota law applicable under the circumstances presented.
Under the view we have taken of the case, namely, that in consideration of the entire record, and the body of instructions taken as a whole, and in context, there was no error in the instructions given or refused, we find it unnecessary to discuss appellee’s argument that, in any event, the jury’s verdict might well have been grounded either upon the railroad’s own negligence in the operation of the train, or its failure to prove that defendant’s acts proximately caused plaintiff’s injury in view of the unusual weather conditions existing on the night in question.
Affirmed.
. Judge Hanson, App. 44.
. Dr. Arie Gaalswyk; App. 51-52.
. “[W]ater was coming out of the hills and over the intersection . . . such that you couldn’t see the ditches as they were .covered with water and the water was gushing to the east.” Mr. Johnson, App. 46.
. Fletcher v. Rylands, 3 H. & C. 774, 159 Eng.Rep. 737 (1865) reversed in Fletcher v. Rylands, L.R. 1 Ex. 265 (1866), aff’d L.R. 3 H.L. 330 (1868).
. As presented to the trial court the rule suggested was phrased in the following terms:
“Your Honor, at this time the plaintiff moves the Court to direct the jury to return a verdict in favor of the plaintiff on tile issue of liability, reserving only the question of the amount of damages that might be awarded, for the reason and upon the grounds that in essence, the doctrine of the old case of Rylands v. Fletcher should here apply.
In other words, that one who keeps upon his premises a dangerous instrumentality such as was involved in this case, in such location that it could, and apparently in all probability would, in some instances, get out of his control and cause damage, is absolutely liable therefor, and that he must so use his own property and instrumentalities as not to damage others, and that failing to do so, he becomes liable for all damages ensuing such failure, or in this instance, the breach of the dam.”
Consonant therewith the plaintiff asserts error on the part of the court:—
“In Refusing to Instruct That One Who So Collects and Keeps on His Land Anything Likely to Do Mischief if It Escapes Does So at His Peril and Is Answerable for All Damage Which Is the Natural Consequence of Its Escape.”
. See Prosser, Nuisance Without Fault, 20 Texas L.Rev. 399, 426: “[Liability for what is called ‘nuisance’ very often rests upon a basis of strict liability, without proof of wrongful intent or negligence, and is not to be distinguished in any respect from the doctrine of Rylands v. Fletcher.”
. Midwest Oil Co. v. Aberdeen, 69 S.D. 343, 10 N.W.2d 701 (1943), and Watson v. Great Lakes Pipeline Co., 85 S.D. 310, 182 N.W.2d 314 (1970).
. Goodhart, Restatement of the Law of Torts, Vol. III, 89 U.Pa.L.Rev. 265 (1941).
. Prosser, Law of Torts, 4th Ed. (1971) p. 511.
. The court was here commenting upon Section 520 of the Restatement of the Law of Torts, the Section accepting the principle of Rylands but limiting it to an “ultrahazardous activity” of the defendant:
“The present facts disclose water being sent through a ten-inch main in the manner now generally accepted for the purpose of furnishing a water supply to city dwellers. We think it clear that such a distribution of water does not constitute an ultrahazardous activity. The definition of an ultrahazardous activity as set forth in Section 520 of the Restatement of the Law of Torts is as follows:
‘An activity is ultrahazardous if it (a) necessarily involves a risk of serious harm to the person, land or chattels of others which cannot be eliminated by the exercise of the utmost care, and (b) is not a matter of common usage.’
Water mains are universally in use in cities, and to hold that a proper and reasonable use of such mains ‘necessarily involves a risk of serious harm to the person, land or chattels of others’ would be contrary to the experience of at least several generations.” 10 N.W.2d at 701-702.
. Mr. Marvin Johnson, App. 32.
. The court, it is argued, erred:
“In Refusing to Instruct as Requested That if the Defendant’s Dam Was a Nuisance as Defined by South Dakota Law Defendant Would Be Liable for All Damage Caused by Such Nuisance Whether or Not He Was Negligent, Unless the Sole Cause of Damage Involved Was an Act of God; and That if a Nuisance Existed Due Oare and Precaution or Use of Ordinary Means to Avoid the Nuisance by the Defendant, Would Be No Defense.
In Refusing to Instruct That if a Nuisance Existed the Exercise of Due Care and Precaution by Defendant or Use of the Ordinary Means to Avoid the Nuisance Were Not a Defense.”
. The early development may be found in McRae, Development of Nuisance in the Early Common Law, 1 U.Fla.L.Rev. 27 (1948). See, also, Harper & James, The Law of Torts (1956), § 1.23 et seq.; Prosser, Law of Torts, 4th Ed. (1971) § 86 et seq.
. Public Wrong and Private Action, 27 Ilarv.L.Rev. 317 (1914).
. “An attempt to classify nuisance is . almost equivalent to an attempt to classify the infinite variety of ways in which one may be annoyed or impeded in the enjoyment of his rights. It is very seldom, indeed, that even a definition of nuisance has been attempted, for the reason that, to make it sufficiently comprehensive, it is necessary to make it so general it is likely to define nothing.” Cooley, Torts, 1879 Ed., p. 566.
. McFarlane v. City of Niagara Falls, 247 N.Y. 340, 160 N.E. 391 (1928).
. The ruling is reminiscent of Mr. Justice Sutherland’s trenchant observation in Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926) that a nuisance “may be merely the right thing in the wrong place, — like a pig in the parlor instead of the barnyard.”
. Cf. Keeton, Trespass, Nuisance, and Strict Liability, 59 Col.L.Rev. 457 (1959).
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
songer_usc1
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26
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title.
OHIO LOCOMOTIVE CRANE CO. v. DENMAN. SAME v. UNITED STATES.
Nos. 6420-6423.
Circuit Court of Appeals, Sixth Circuit.
Nov. 16, 1934.
E. J. Brunenkant, of Cleveland, Ohio, for Ohio Locomotive Crane Co.
Morton K. Rothschild, of Washington, D. C. (Emerieh B. Freed, of Cleveland, Ohio, Lee N. Murlin and Herman A. Krueger, both of Toledo, Ohio, and E. Barrett Pretty'man and Henry L. Young, both of Washington, D. C., on the brief), for Denman and United States.
Before HICKS and SIMONS, Cirenit Judges, and RAYMOND, District Judge.
HICKS, Circuit Judge.
On February 12,1930, appellant, the Ohio Locomotive Crane Company, herein called Corporation No. 2, brought suit against Nauts, Collector of Internal Revenue, to recover the sum of $124,714.27 and $22,270.85, with interest, which sums it alleged had been wrongfully exacted from it as income and profits taxes for the year 1918, and for the period from January 1 to September 30, 1919, respectively. Nauts died and the pending suit was revived against Denman, the administrator of his estate.
On August 6, 1930, appellant brought suit directly against the United States upon similar causes of action and for similar amounts. For the purposes of the trial, the causes were consolidated and tried by the court without a jury. The court dismissed the suits as to the larger amount, but rendered a joint judgment against the two defendants for the smaller. Hence the appeals by Corporation No. 2, and cross-appeals by the Administrator and the United States.
Corporation No. 2 and cross-appellants each requested special findings of fact and conclusions of law. In response, the court found that Corporation No. 2> was organized in 1916 under the name “The Ohio Crane Company”; that in 1923 it changed its name to “'The Ohio Locomotive Crane Company”; that all its tax liabilities for 1918 and 1919 based upon its returns under the name, “The Ohio Crane Company,” were completely settled in 1923 and that no further controversy thereover has arisen; that in L909 another corporation had been organized under the laws of Ohio, having the identical name, “The Ohio Locomotive Crane Company,” herein called Corporation No. 1; that it engaged in business until October 1, 1919, when it transferred its assets to a newly organized partnership styled “Ohio Locomotive Crane Company” and that thereafter, though it owned no property and transacted no- business, it existed as a corporation until February 15> 1927, when its charter was canceled for failure to pay its state corporation franchise taxes; that about December 39, 1922, Corporation No. 2 purchased from the partnership, “Ohio Locomotive Crane Company,” assets valued at $263,161.50 for which it paid $451.-50 in cash and 1,390 shares of its common stock valued at $189 per share; that included in the purchase were assets of the value of $4,502.25, originally owned by Corporation No. 1, and acquired by the partnership on September 30, 1919; that the remaining assets sold by the partnership were created as a result of the partnership operations during the period from September 30, 1919, to December 1, 1922; that the members of the partnership were stockholders in both corporations; that during 1923 the partnership and both corporations occupied a single office in Bueyrus, Ohio, with a single office force; that from September 15, 1923, until February 15, 1927, the corporations coexisted with identical names and addresses and substantially identical officers, though but one was active.
The court further found that on June 14, 1919, at which time C. F. Michael was its president, Corporation No. 1 filed its income tax return for 1918 as a personal service corporation, reporting no tax liability, and on March 19, .1920, it made a similar return for 1919; that on December 9, 1920, a revenue agent, after an examination of these returns, reported that personal service classification should ho denied and that the taxes of Corporation No. 1 for 1918 and 1919 should he $172,126.07 and $20,622.78, respectively; that from that date until the beginning of the year 1926, Corporation No. 1 continuously contested this determination before the Commissioner, with the result that on April 10, 1926, an assessment was made in the sum of $124,712.27 for taxes for the year 1918, and on March 6,1926, an assessment was made in the sum of $22,270.85 for that portion of the year 19.19 above indicated.
These assessments were against “Ohio Locomotive Crane Company.” As between the Commissioner and Corporation No. 2, the question is, whether these assessments, actually made in the name of the partnership, constituted an assessment against Corporation No. 1. Corporation No. 2 requested the court to find that they were against the partnership as a matter of law. We think this request was properly denied. These assessments were obviously intended to he against Corporation No. 1. The argument to the contrary is based on the omission of the word “The” at the beginning of the corporate name of No. 1.
This is a highly technical objection. We have been cited to no authority requiring that in an assessment the name of the taxpayer must he letter perfect. The symbols appearing upon the assessment list for each year indicate that the assessment was against the corporation rather than the partnership.
From the findings of fact supported by the evidence, it is clear that appellant knew that the Commissioner was proceeding against Corporation No. 1 only, because (1) the tax of that corporation was the only tax in controversy; (2) Michael, as president of Corporation No. 1, who was also president of Corporation No. 2, not only executed a series of waivers extending the time for the assessment of the tax until November 7, 1926, but on May 22, 1925, signed the petition of that corporation for an appeal to the Board of Tax Appeals from the Commissioner’s determination of the deficiency in its taxes for 1918; and (3) Michael had himself executed a power of attorney to one George A. Smith to represent Corporation No. 1 before the Bureau. Moreover, it is apparent that there was no intention to assess the partnership. The statute (section 218(a), Revenue Acts 1918, 1921, 40 Stat. 1070, 42 Stat. 245; Revenue Acts 1924, 1926, § 218 (a), 26 USCA § 959 and note) requiring that an assessment against a partnership should be made against the members thereof in their individual names was not followed.
The above-mentioned appeal of Corporation No. 1 to -the Board of Tax Appeals was ma'de from the ruling in the Commissioner’s deficiency letter which carried the same mistake in name as the assessments. It is manifest that Corporation No. 2 assumed that the assessments were against Corporation No. 1 and ignored the error until the refund claims were filed on July 13,1929, at which time the statute of limitations precluded the making of corrected assessments. Corporation No. 2 was not misled, and, so far as it is concerned, the assessments must be regarded as against Corporation No. 1.
On April 7 and May 7,1926, respectively, notice and demand in the usual form for the payment of the taxes for the year and portion of year involved were mailed. In each instance the name of the taxpayer was given as “Ohio Locomotive Crane Company” and not “The Ohio Locomotive Crane Company.” The court found that these notices and demands were received by Corporation No. 2 in the consolidated offices of appellant and Corporation No. 1 at Bueyrus and that Corporation No. 2 voluntarily paid the taxes.
Whether the payments were voluntary is the second question. -There is ample evidence to support the finding that they were. Mr. Michael, president of Corporation No. 2, testified that when the notices and demands were received he went to Toledo, saw the Collector and protested their payment, but his protest did not go beyond a statement to the Collector, “that it would work a hardship upon us if we had to pay them at that time.” To whom he referred by the pronoun “us” is doubtful, but he made no claim that the taxes were either illegally assessed or erroneously demanded. No warrant of distraint was ever issued against Corporation No. 2 and it paid the taxes for 1919 on April 15, 1926, and for 1918 in four installments between May 15 and June 1, 1926. The payments were made by checks and in the accompanying letters the following expressions are found:
“We would like to arrange to send you our cheek for $34,714.27 by Monday of next week. * * * ”
“We also take pleasure in mailing to you herewith our additional cheek for $30,000.00. * * * ” “and take pleasure in mailing to you herewith our cheek for $50,000.00. * * *»
“Enclosed please -find Bueyrus City Bank check for $10,000.00. * * * ” And, “We take pleasure in enclosing our check No. 4689 in the amount of $142.96 covering accrued interest.” •
It is true that Mr. Michael testified that at the time he issued the checks he thought he was paying the tax liability of Corporation No. 2, but his testimony is not convincing. Its uncertain nature is illustrated by the following excerpts therefrom:
“Q. Then at the time you issued those-cheeks, whose tax liability did you think you-were paying? A. The Ohio Crane Company.
“Q. Ohio Crane Company? A. Ohio Locomotive Crane Company.
“Q. Corporation No. 1 or Corporation No. 2? A. Well, Corporation No. 2.
“Q. You knew as a matter of fact that Corporation No. 1, bearing the same name, The Ohio Locomotive Crane Company, tax liability was under dispute from the year 1920 up to 1926, did you not? A. It was under dispute.
“Q. Yes. A. Yes, sir.
“Q. In the Treasury Department. You went to Washington? A. Yes, sir.
“Q. And conferred relative to the tax liability of Corporation No. 1, bearing the name The Ohio Locomotive Crane Company, did you not? A. Yes, sir. I didn’t go to Washington ; Mr. Stoltz went. * * *
“Q. Now, Sir. Michael, 1 again hand you this notice and demand for tho year 1918, in the amount of $123,790.08. Now, in view of that petition, and in view of tho notice and demand, when you paid that tux, you knew you were paying the taxes for Corporation No. 1, did vou not? A. No, I can’t say that I did.
“Q. You can’t say that yon did, — in view of the fact that less than a year previous you filed a petition with the Board of Tax Appeals in which that very amount was in dispute? A. The amounts arc alike, but I don’t ■ — I can’t say definitely as to that.”
But, regardless of the weight to be given to Mr. Michael’s testimony, there is substantial evidence, as indicated above, to sustain the findings of the court to tho contrary.
Corporation No. 2 urges upon us the case of Moore Ice Cream Co. v. Rose, Collector, 289 U. S. 373, 53 S. Ct. 620, 77 L. Ed. 1265. Nothing in that ease benefits it. It construes certain provisions of section 1014 of the Revenue Act of 1924, c. 234 (43 Stat. 253, 343), 26 USCA § 156 and note, amending Revised Statutes, § 3226. The amendment permits the recovery of taxes illegally assessed or collected regardless of whether the payment was voluntary or otherwise, but it gives no aid to one who “pays another’s tax actually due, with full knowledge of what lie is doing, ■s «■ » gce Clift & Goodrich, Inc., v. United States, 56 F.(2d) 751, 753 (C. C. A. 2). There is little room for doubt that Corporation No. 2 willingly made the payments upon the belief that it was itself liable therefor as a transferee; or that several of its largest stockholders, being the original transferees from Corporation No. 1, would be liable therefor as individuals. See Phillips v. Commissioner, 283 U. S. 589, 51 S. Ct. 608, 75 L. Ed. 1289. It was not seriously contended that Corporation No*. 1 did not owe the tax for 1918. That question was foreclosed when its appeal to the Board of Tax Appeals was dismissed and we find nothing unconscionable, under the circumstances, for the government to retain the tax. Lewis v. Reynolds, 284 U. S. 281, 283, 52 S. Ct. 145, 76 L. Ed. 293; Cary v. Curtis, 3 How. 236, 246, 11 L. Ed. 576; American Security & Trust Co. v. Tait, 5 F. Supp, 337, 344 (D. C.).
As to the taxes for the year 1919, the court held that they were not assessed within the time permitted by law, that tho amount thereof was not therefore collectible from anybody, and that appellant was entitled to recover therefor. We think the holding should be sustained in view of our conclusion that the assessment was really against Corporation No. 1. That corporation had by waivers extended the time for assessment to March 1, 1926, only, and the assessment was not made until March 6, 1926. Cross-appellant claims that the period for assessment was extended for one year from March 1, 1.926, because Corporation No. 1 had dispossessed itself of its assets by a sale to the partnership and that the period for assessment did not therefore expire until March 1, 1927.
Cross-appellants misconstrue the effect of section 280 (b) (1) of the Revenue Act of 1926, 26 USCA § 1069 (b) (1). The extension of one year therein permitted applies not to the transferor but to the transferee (here the partnership). See City National Bank v. Commissioner, 55 F.(2d) 1073 (C. C. A. 5).
Cross-appellant United States makes the point that the joint judgment for $22,270.85 with interest was invalid; that the suit should have been dismissed against it' for lack of jurisdiction; that the District Court in virtue of USC tit. 28, § 41(20), 28 USCA § 41(20), had only concurrent jurisdiction with the Court of Claims; that if the suit against the United States had been brought in the Court of: Claims, it would have had no jurisdiction because the suit against tho Collector was then pending in the District Court. See U. S. C. tit. 28, § 260 (28 USCA § 2:60). The point is well made, but a direct dismissal against the United States is not required. Corporation No. 2 is entitled to its judgment for the amount exacted from it for the year 1919, which it may have against one or the other of appellees or cross-appellants at its election. Matson Navigation Co. v. U. S., 284 U. S. 352, 356, 52 S. Ct. 162, 76 L. Ed. 336; Stark v. U. S., 14 F.(2d) 616, 618 (D. C.).
The result is that the judgment of the District Court denying a recovery in the sum of , $124,714.27, the taxes in dispute for the year 1918, is affirmed, but the judgment against cross-appellants, Denman, Administrator, and the United States of America, for $22,270.85 with interest, is reversed and the case is remanded to the District Court for further proceedings consistent with this opinion.
Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number.
Answer:
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sc_authoritydecision
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D
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the 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.
SINCLAIR REFINING CO. v. ATKINSON et al.
No. 434.
Argued April 18, 1962.
Decided June 18, 1962.
George B. Christensen argued the cause for petitioner. With him on the briefs were Fred H. Daugherty and Richard W. Austin.
Gilbert A. Cornfield argued the cause for respondents. With him on the briefs were Gilbert Feldman and William E. Rentfro.
Mr. Justice Black
delivered the opinion of the Court.
The question this case presents is whether § 301 of the Taft-Hartley Act, in giving federal courts jurisdiction of suits between employers and unions for breach of collective bargaining agreements, impliedly repealed § 4 of the pre-existing Norris-LaGuardia Act, which, with certain exceptions not here material, barred federal courts from issuing injunctions “in any case involving or growing out of any labor dispute.”
The complaint here was filed by the petitioner Sinclair Refining Company against the Oil, Chemical and Atomic Workers International Union and Local 7-210 of that union and alleged: that the International Union, acting by and with the authority of the Local Union and its members, signed a written collective bargaining contract with Sinclair which provided for compulsory, final and binding arbitration of “any difference regarding wages, hours or working conditions between the parties hereto or between the Employer and an employee covered by this working agreement which might arise within any plant or within any region of operations”; that this contract also included express provisions by which the unions agreed that “there shall be no slowdowns for any reason whatsoever” and “no strikes or work stoppages . . . [f] or any cause which is or may be the subject of a grievance”; and that notwithstanding these promises in the collective bargaining contract the members of Local 7-210 had, over a period of some 19 months, engaged in work stoppages and strikes on nine separate occasions, each of which, the complaint charged, grew out of a grievance which could have been submitted to arbitration under the contract and therefore fell squarely within the unions’ promises not to strike. This pattern of repeated, deliberate violations of the contract, Sinclair alleged, indicated a complete disregard on the part of the unions for their obligations under the contract and a probability that they would continue to “subvert the provisions of the contract” forbidding strikes over grievances in the future unless they were enjoined from doing so. In this situation, Sinclair claimed, there was no adequate remedy at law which would protect its contractual rights and the court should therefore enter orders enjoining the unions and their agents “preliminarily at first, and thereafter permanently, from aiding, abetting, fomenting, advising, participating in, ratifying, or condoning any strike, stoppage of work, slowdown or any other disruption of, or interference with normal employment or normal operation or production by any employee within the bargaining unit at plaintiff’s East Chicago, Indiana refinery covered by the contract between the parties dated August 8, 1957, in support of, or because of, any matter or thing which is, or could be, the subject of a grievance under the grievance procedure of the said contract, or any extension thereof, or any other contract between the parties which shall contain like or similar provisions.”
The unions moved to dismiss this complaint on the ground that it sought injunctive relief which United States courts, by virtue of the Norris-LaGuardia Act, have no jurisdiction to give. The District Court first denied the motion, but subsequently, upon reconsideration after full oral argument, vacated its original order and granted the unions’ motion to dismiss. In reaching this conclusion, the District Court reasoned that the controversy between Sinclair and the unions was unquestionably a “labor dispute” within the meaning of the Norris-LaGuar-dia Act and that the complaint therefore came within the proscription of § 4 of that Act which “withdraws jurisdiction from the federal courts to issue injunctions to prohibit the refusal ‘to perform work or remain in any relation of employment’ in cases involving any labor dispute.” The Court of Appeals for the Seventh Circuit affirmed the order of dismissal for the same reasons. Because this decision presented a conflict with the decision on this same important question by the Court of Appeals for the Tenth Circuit, we granted certiorari.
We agree with the courts below that this case does involve a “labor dispute” within the meaning of the Norris-LaGuardia Act. Section 13 of that Act expressly defines a labor dispute as including “any controversy concerning terms or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, regardless of whether or not the disputants stand in the proximate relation of employer and employee.” Sinclair’s own complaint shows quite plainly that each of the alleged nine work stoppages and strikes arose out of a controversy which was unquestionably well within this definition.
Nor does the circumstance that the alleged work stoppages and strikes may have constituted a breach of a collective bargaining agreement alter the plain fact that a “labor dispute” within the meaning of the Norris-LaGuardia Act is involved. Arguments to the contrary proceed from the premise that § 2 of that Act, which expresses the public policy upon which the specific anti-injunction provisions of the Act were based, contains language indicating that one primary concern of Congress was to insure workers the right "to exercise actual liberty of contract” and to protect "concerted activities for the purpose of collective bargaining.” From that premise, Sinclair argues that an interpretation of the term "labor dispute” so as to include a dispute arising out of a union’s refusal to abide by the terms of a collective agreement to which it freely acceded is to apply the Norris-LaGuardia Act in a way that defeats one of the purposes for which it was enacted. But this argument, though forcefully urged both here and in much current commentary on this question, rests more upon considerations of what many commentators think would be the more desirable industrial and labor policy in view of their understanding as to the prevailing circumstances of contemporary labor-management relations than upon what is a correct judicial interpretation of the language of the Act as it was written by Congress.
In the first place, even the general policy declarations of § 2 of the Norris-LaGuardia Act, which are the foundation of this whole argument, do not support the conclusion urged. That section does not purport to limit the Act to the protection of collective bargaining but, instead, expressly recognizes the need of the anti-injunction provisions to insure the right of workers to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Moreover, the language of the specific provisions of the Act is so broad and inclusive that it leaves not the slightest opening for reading in any exceptions beyond those clearly written into it by Congress itself. We cannot ignore the plain import of a congressional enactment, particularly one which, as we have repeatedly said, was deliberately drafted in the broadest of terms in order to avoid the danger that it would be narrowed by judicial construction.
Since we hold that the present case does grow out of a “labor dispute,” the injunction sought here runs squarely counter to the proscription of injunctions against strikes contained in § 4 (a) of the Norris-LaGuardia Act, to the proscription of injunctions against peaceful picketing contained in § 4 (e) and to the proscription of injunctions prohibiting the advising of such activities contained in §4(i). For these reasons, the Norris-LaGuardia Act deprives the courts of the United States of jurisdiction to enter that injunction unless, as is contended here, the scope of that Act has been so narrowed by the subsequent enactment of § 301 of the Taft-Hartley Act that it no longer prohibits even the injunctions specifically described in § 4 where such injunctions are sought as a remedy for breach of a collective bargaining agreement. Upon consideration, we cannot agree with that view and agree instead with the view expressed by the courts below and supported by the Courts of Appeals for the First and Second Circuits that § 301 was not intended to have any such partially repealing effect upon such a long-standing, carefully thought out and highly significant part of this country’s labor legislation as the Norris-LaGuardia Act.
The language of § 301 itself seems to us almost if not entirely conclusive of this question. It is especially significant that the section contains no language that could by any stretch of the imagination be interpreted to constitute an explicit repeal of the anti-injunction provisions of the Norris-LaGuardia Act in view of the fact that the section does expressly repeal another provision of the Norris-LaGuardia Act dealing with union responsibility for the acts of agents. If Congress had intended that § 301 suits should also not be subject to the anti-injunction provisions of the Norris-LaGuardia Act, it certainly seems likely that it would have made its intent known in this same express manner. That is indeed precisely what Congress did do in § 101, amending § 10 (h) of the National Labor Relations Act, and § 208 (b) of the Taft-Hartley Act, by permitting injunctions to be obtained, not by private litigants, but only at the instance of the National Labor Relations Board and the Attorney General,/ and in § 302 (e), by permitting private litigants to obtain injunctions in order to protect the integrity of employees’ collective bargaining representatives in carrying out their responsibilities. Thus the failure of Congress to include a provision in § 301 expressly repealing the anti-injunction provisions of the Norris-LaGuardia Act must be evaluated in the context of a statutory pattern that indicates not only that Congress was completely familiar with those provisions but also that it regarded an express declaration of inapplicability as the normal and proper manner of repealing them in situations where such repeal seemed desirable.
When the inquiry is carried beyond the language of § 301 into its legislative history, whatever small doubts as to the congressional purpose could have survived consideration of the bare language of the section should be wholly dissipated. For the legislative history of § 301 shows that Congress actually considered the advisability of repealing the Norris-LaGuardia Act insofar as suits based upon breach of collective bargaining agreements are concerned and deliberately chose not to do so. The section as eventually enacted was the product of a conference between Committees of the House and Senate, selected to resolve the differences between conflicting provisions of the respective bills each had passed. Prior to this conference, the House bill had provided for federal jurisdiction of suits for breach of collective bargaining contracts and had expressly declared that the Norris-LaGuardia Act's anti-injunction provisions would not apply to such suits. The bill passed by the Senate, like the House bill, granted federal courts jurisdiction over suits for breach of such agreements but it did not, like the House bill, make the Norris-LaGuardia Act's prohibition against injunctions inapplicable to such suits. Instead it made breach of a collective agreement an unfair labor practice. Under the Senate version, therefore, a breach of a collective bargaining agreement, like any unfair labor practice, could have been enjoined by a suit brought by the National Labor Relations Board, but no provision of the Senate version would have permitted the issuance of an injunction in a labor dispute at the suit of a private party. At the conference the provision of the House bill expressly repealing the anti-injunction provisions of the Norris-LaGuardia Act, as well as the provision of the bill passed by the Senate declaring the breach of a collective agreement to be an unfair labor practice, was dropped and never became law. Instead, the conferees, as indicated by the provision which came out of the conference and eventually became § 301, agreed that suits for breach of such agreements should remain wholly private and “be left to the usual processes of the law” and that, in view of the fact that these suits would be at the instance of private parties rather than at the instance of the Labor Board, no change in the existing anti-injunction provisions of the Norris-LaGuardia Act should be made. The House Conference Report expressly recognized that the House provision for repeal in contract actions of the anti-injunction prohibitions of the Norris-LaGuardia Act had been eliminated in Conference:
“Section 302 (e) of the House bill made the Norris-LaGuardia Act inapplicable in actions and proceedings involving violations of agreements between an employer and a labor organization. Only part of this provision is included in the conference agreement. Section 6 of the Norris-LaGuardia Act provides that no employer or labor organization participating or interested in a labor dispute shall be held responsible for the unlawful acts of their agents except upon clear proof of actual authorization of such acts,, or ratification of such acts after actual knowledge thereof. This provision in the Norris-LaGuardia Act was made inapplicable under the House bill. Section 301 (e) of the conference agreement provides that for the purposes of section 301 in determining whether any person is acting as an agent of another so as to make such other person responsible for his actions, the question of whether the specific acts performed were actually authorized or subsequently ratified shall not be controlling.”
And Senator Taft, Chairman of the Conference Committee and one of the authors of this legislation that bore his name, was no less explicit in explaining the results of the Conference to the Senate: “The conferees . . . rejected the repeal of the Norris-LaGuardia Act.”
We cannot accept the startling argument made here that even though Congress did not itself want to repeal the Norris-LaGuardia Act, it was willing to confer a power upon the courts to “accommodate” that Act out of existence whenever they might find it expedient to do so in furtherance of some policy they had fashioned under § 301. The unequivocal statements in the House Conference Report and by Senator Taft on the floor of the Senate could only have been accepted by the Congressmen and Senators who read or heard them as assurances that they could vote in favor of § 301 without altering, reducing or impairing in any manner the anti-injunction provisions of the Norris-LaGuardia Act. This is particularly true of the statement of Senator Taft, a man generally regarded in the Senate as a very able lawyer and one upon whom the Senate could rely for accurate, forthright explanations of legislation with which he was connected. Senator Taft was of course entirely familiar with the prohibitions of the Norris-LaGuardia Act and the impact those prohibitions would have upon the enforcement under § 301 of all related contractual provisions, including contractual provisions dealing with arbitration. If, as this argument suggests, the intention of Congress in enacting § 301 was to clear the way for judicial obliteration of that Act under the soft euphemism of “accommodation,” Senator Taft’s flat statement that the Conference had rejected the repeal of the Norris-LaGuardia Act could only be regarded as disingenuous. We cannot impute any such intention to him.
Moreover, we think that the idea that § 301 sanctions piecemeal judicial repeal of the Norris-LaGuardia Act requires acceptance of a wholly unrealistic view of the manner in which Congress handles its business. The question of whether existing statutes should be continued in force or repealed is, under our system of government, one which is wholly within the domain of Congress. When the repeal of a highly significant law is urged upon that body and that repeal is rejected after careful consideration and discussion, the normal expectation is that courts will be faithful to their trust and abide by that decision. This is especially so where the fact of the controversy over repeal and the resolution of that controversy in Congress plainly appears in the formal legislative history of its proceedings. Indeed, not a single instance has been called to our attention in which a carefully considered and rejected proposal for repeal has been revived and adopted by this Court under the guise of “accommodation” or any other pseudonym.
Nor have we found anything else in the previous decisions of this Court that would indicate that we should disregard all this overwhelming evidence of a congressional intent to retain completely intact the anti-injunction prohibitions of the Norris-LaGuardia Act in suits brought under § 301. Brotherhood of Railroad Trainmen v. Chicago River & Indiana R. Co., upon which Sinclair places its primary reliance, is distinguishable on several grounds. There we were dealing with a strike called by the union in defiance of .an affirmative duty, imposed upon the union by the Railway Labor Act itself, compelling unions to settle disputes as to the interpretation of aii existing collective bargaining agreement, not by collective union pressures on the railroad but by submitting them to the Railroad Adjustment Board as the exclusive means of final determination of such “minor” disputes. Here, on the other hand, we are dealing with a suit under a quite different law which does not itself compel a particular, exclusive method for settling disputes nor impose any requirement, either upon unions or employers, or upon the courts, that is in any way inconsistent with a continuation of the Norris-LaGuardia Act’s proscription of federal labor injunctions against strikes and peaceful picketing. In addition, in Chicago River we were dealing with a statute that had a far different legislative history than the one now before us. Thus there was no indication in the legislative history of the Railway Labor Act, as there is in the history of § 301, that Congress had, after full debate and careful consideration by both Houses and in Joint Conference, specifically rejected proposals to make the prohibitions of the Norris-LaGuardia Act inapplicable. Indeed, the Court was able to conclude in Chicago River “that there was general understanding between both the supporters and the opponents of the 1934 amendment that the provisions dealing with the Adjustment Board were to be considered as compulsory arbitration in this limited field.” And certainly no one could contend that § 301 was intended to set up any such system of "compulsory arbitration” as the exclusive method for settling grievances under the Taft-Hartley Act.
Textile Workers Union v. Lincoln Mills, upon which some lesser reliance is placed, is equally distinguishable. There the Court held merely that it did not violate the anti-injunction provisions of the Norris-LaGuardia Act to compel the parties to a collective bargaining agreement to submit a dispute which had arisen under that agreement to arbitration where the agreement itself required arbitration of the dispute. In upholding the jurisdiction of the federal courts to issue such an order against a challenge based upon the Norris-LaGuardia Act, the Court pointed out that the equitable relief granted in that case — a mandatory injunction to carry out an agreement to arbitrate — did not enjoin any one of the kinds of conduct which the specific prohibitions of the Norris-LaGuardia Act withdrew from the injunctive powers of United States courts. An injunction against work stoppages, peaceful picketing or the nonfraudulent encouraging of those activities would, however, prohibit the precise kinds of conduct which subsections (a), (e) and (i) of § 4 of the Norris-LaGuardia Act unequivocally say cannot be prohibited.
Nor can we agree with the argument made in this Court that the decision in Lincoln Mills, as implemented by the subsequent decisions in United Steelworkers v. American Manufacturing Co., United Steelworkers v. Warrior & Gulf Navigation Co., and United Steelworkers v. Enterprise Wheel & Car Corp., requires us to reconsider and overrule the action of Congress in refusing to repeal or modify the controlling commands of the Norris-LaGuardia Act. To the extent that those cases relied upon the proposition that the arbitration process is “a kingpin of federal labor policy/’ we think that proposition was founded not upon the policy predilections of this Court but upon what Congress said and did when it enacted § 301. Certainly we cannot accept any suggestion which would undermine those cases by implying that the Court went beyond its proper power and itself “forged ... a kingpin of federal labor policy” inconsistent with that section and its purpose. Consequently, we do not see how cases implementing the purpose of § 301 can be said to have freed this Court from its duty to give effect to the plainly expressed congressional purpose with regard to the continued application of the anti-injunction provisions of the Norris-LaGuardia Act. The argument to the contrary seems to rest upon the notion that injunctions against peaceful strikes are necessary to make the arbitration process effective. But whatever might be said about the merits of this argument, Congress has itself rejected it. In doing so, it set the limit to which it was willing to go in permitting courts to effectuate the congressional policy favoring arbitration and it is not this Court’s business to review the wisdom of that decision.
The plain fact is that § 301, as passed by Congress, presents no conflict at all with the anti-injunction provisions of the Norris-LaGuardia Act. Obedience to the congressional commands of the Norris-LaGuardia Act does not directly affect the “congressional policy in favor of the enforcement of agreements to arbitrate grievance disputes” at all for it does not impair the right of an employer to obtain an order compelling arbitration of any dispute that may have been made arbitrable by the provisions of an effective collective bargaining agreement. At the most, what is involved is the question of whether the employer is to be allowed to enjoy the benefits of an injunction along with the right which Congress gave him in § 301 to sue for breach of a collective agreement. And as we have already pointed out, Congress was not willing to insure that enjoyment to an employer at the cost of putting the federal courts back into the business of enjoining strikes and other related peaceful union activities.
It is doubtless true, as argued, that the right to sue which § 301 gives employers would be worth more to them if they could also get a federal court injunction to bar a breach of their collective bargaining agreements. Strong arguments are made to us that it is highly desirable that the Norris-LaGuardia Act be changed in the public interest. If that is so, Congress itself might see fit to change that law and repeal the anti-injunction provisions of the Act insofar as suits for violation of collective agreements are concerned, as the House bill under consideration originally provided. It might, on the other hand, decide that if injunctions are necessary, the whole idea of enforcement of these agreements by private suits should be discarded in favor of enforcement through the administrative machinery of the Labor Board, as Senator Taft provided in his Senate bill. Or it might decide that neither of these methods is entirely satisfactory and turn instead to a completely new approach. The question of what change, if any, should be made in the existing law is one of legislative policy properly within the exclusive domain of Congress — it is a question for lawmakers, not law interpreters. Our task is the more limited one of interpreting the law as it now stands. In dealing with problems of interpretation and application of federal statutes, we have no power to change deliberate choices of legislative policy that Congress has made within its constitutional powers. Where congressional intent is discernible — and here it seems crystal clear — we must give effect to that intent.
The District Court was correct in dismissing Count 3 of petitioner’s complaint for lack of jurisdiction under the Norris-LaGuardia Act. The judgment of the Court of Appeals affirming that order is therefore
Affirmed.
Mr. Justice Frankfurter took no part in the consideration or decision of this case.
“Suits for violation of contracts between an employer and a labor organization representing employees in an'industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.” 61 Stat. 156, 29 U. S. C. § 185 (a).
“No court of the United States shall have jurisdiction to issue any restraining order or temporary or permanent injunction in any case involving or growing out of any labor dispute to prohibit any person or persons participating or interested in such dispute (as these terms are herein defined) from doing, whether singly or in concert, any of the following acts:
“(a) Ceasing or refusing to perform any work or to remain in any relation of employment;
“(e) Giving publicity to the existence of, or the facts involved in, any labor dispute, whether by advertising, speaking, patrolling, or by any other method not involving fraud or violence;
“(i) Advising, urging, or otherwise causing or inducing without fraud or violence the acts heretofore specified . . . .” 47 Stat. 70, 29 U. S. C. § 104.
The suit filed by Sinclair was in three counts, only one of which, Count 3, is involved in this case. Counts 1 and 2, upon which Sinclair prevailed below, are also before the Court in No. 430. See Atkinson v. Sinclair Refining Co., post, p. 238, decided today.
187 F. Supp. 225.
Id., at 228.
290 F. 2d 312.
Chauffeurs, Teamsters & Helpers Local No. 795 v. Yellow Transit Freight Lines, 282 F. 2d 345. Both the First and the Second Circuits have also considered this question and both have taken the same position as that taken below. See W. L. Mead, Inc., v. Teamsters Local No. 25, 217 F. 2d 6; Alcoa S. S. Co. v. McMahon, 173 F. 2d 567; In re Third Ave. Transit Corp., 192 F. 2d 971; A. H. Bull Steamship Co. v. Seafarers’ International Union. 250 F. 2d 326.
368 U. S. 937.
47 Stat. 73, 29 U. S. C. §113.
The allegations of the complaint with regard to the nine occurrences in question are as follows :
“(a) On or about July 1, 1957, six employees assigned to the #810 Crude Still stopped work in support of an asserted grievance involving the removal of Shift Machinists from the #810 Still area;
“(b) On or about September 17, 1957, all employees employed in the Mason Department refused to work on any shift during the entire day; the entire Mechanical Department refused to work from approximately noon until midnight; the employees of the Barrel House refused to work from the middle of the afternoon until midnight; a picket line was created which prevented operators from reporting to work on the 4:00 P. M. to midnight shift, all in support of an asserted grievance on behalf of five apprentice masons for whom insufficient work was available to permit their retention at craft levels.
“(c) On or about March 28, 1958, approximately 73 employees in the Rigging Department refused to work for approximately one hour in support of an asserted grievance that riggers were entitled to do certain work along with machinists.
“(d) On or about May 20, 1958, approximately 24 employees in the Rigging Department refused to work for 1% hours in support of an asserted grievance that riggers were entitled to do certain work along with boilermakers.
"(e) On or about September 11, 1958, approximately 24 employees in the Rigging Department refused to work for approximately two hours in support of an asserted grievance that pipefitters could not dismantle and remove certain pipe coils without riggers being employed on the said work also.
“(f) On or about October 6 and 7, 1958, approximately 43 employees in the Cranes and Trucks Department refused to work for approximately eight hours in support of an asserted grievance concerning employment by the Company of an independent contractor to operate a contractor owned crane.
“(g) On or about November 19, 1958, approximately 71 employees refused to work for approximately 3% hours in the Boilermaking Department in support of an asserted grievance that burners and riggers would not dismantle a tank roof without employment of boilermakers at the said task.
“(h) On or about November 21, 1958, in further pursuance of the asserted grievance referred to in subparagraph (g) preceding, the main entrance to the plant was picketed and barricaded, thereby preventing approximately 800 employees from reporting for work for an entire shift.
“(i) On or about February 13 and 14, 1959, approximately 999 employees were induced to stop work over an asserted grievance on behalf of three riggers that they should not have been docked an aggregate of $2.19 in their pay for having reported late to work.”
“In the interpretation of this Act and in determining the jurisdiction and authority of the courts of the United States, as such jurisdiction and authority are herein defined and limited, the public policy of the United States is hereby declared as follows:
“Whereas under prevailing economic conditions, developed with the aid of governmental authority for owners of property to organize in the corporate and other forms of ownership association, the individual unorganized worker is commonly helpless to exercise actual liberty of contract and to protect his freedom of labor, and thereby to obtain acceptable terms and conditions of employment, wherefore, though he should be free to decline to associate with his fellows, it is necessary that he have full freedom of association, self-organization, and designation of representatives of his own choosing, to negotiate the terms and conditions of his employment, and that he shall be free from the interference, restraint, or coercion of employers of labor, or their agents, in the designation of such representatives or in self-organization or in other concerted activities for the purpose of collective bargaining or other mutual aid or protection; therefore, the following definitions of, and limitations upon, the jurisdiction and authority of the courts of the United States are enacted.” 47 Stat. 70, 29 U. S. C. § 102.
One of the most forthright arguments for judicial re-evaluation of the wisdom of the anti-injunction provisions of the Norris-LaGuardia Act and judicial rather than congressional revision of the meaning and scope of these provisions as applied to conduct in breach of a collec-five bargaining agreement is presented in Gregory, The Law of the Collective Agreement, 57 Mich. L. Rev. 635. That author, in urging that a strike in breach of a collective agreement should not now be held to involve or grow out of a “labor dispute” within the meaning of the Norris-LaGuardia Act, states: “After all, 1932 was a long time ago and conditions have changed drastically. Judges who still confuse violations of collective agreements with § 13 labor disputes and § 4 conduct have, in my opinion, lost contact with reality. The passage of time has operated as a function of many other types of judicial output at the highest level. I do not see why it should not do so in this instance, as well.” Id., at 645-646, n. 39. See also Stewart, No-Strike Clauses in the Federal Courts, 59 Mich. L. Rev. 673, especially at 683; Rice, A Paradox of our National Labor Law, 34 Marq. L. Rev. 233.
Thus we conclude here precisely as we did in Lauf v. E. G. Skinner & Co., 303 U. S. 323, 330: “We find nothing in the declarations of policy which narrows the definition of a labor dispute as found in the statutes. The rights of the parties and the jurisdiction of the federal courts are to be determined according to the express provisions applicable to labor disputes as so defined.”
United States v. Hutcheson, 312 U. S. 219, 234, and cases cited therein.
See note 2, supra.
We need not here again go into the history of the Norris-LaGuardia Act nor the abuses which brought it into being for that has been amply discussed on several occasions. See Frankfurter and Greene, The Labor Injunction. And see e. g., United States v. Hutcheson, 312 U. S. 219, 235-236; Milk Wagon Drivers' Union v. Lake Valley Farm Products, Inc., 311 U. S. 91, 102-103. It is sufficient here to note that the reasons which led to the passage of the Act were substantial and that the Act has been an important part of the pattern of legislation under which unions have functioned for nearly 30 years.
Section 301 (e) of the Act, 61 Stat. 156, 29 U. S. C. § 185 (e), provides: “For the purposes of this section, in determining whether any person is acting as an ‘agent’ of another person so as to make such other person responsible for his acts, the question of whether the specific acts performed were actually authorized or subsequently ratified shall not be controlling.” This, of course, was designed to and did repeal for purposes of suits under § 301 the previously controlling provisions of § 6 of the Norris-LaGuardia Act, 47 Stat. 71, 29 U. S. C. § 106: “No officer or member of any association or organization, and no association or organization participating or interested in a labor dispute, shall be held responsible or liable in any court of the United States for the unlawful acts of individual officers, members, or agents, except upon clear proof of actual participation in, or actual authorization of, such acts, or of ratification of such acts after actual knowledge thereof.”
61 Stat. 146,155, as amended, 29 U. S. C. §§ 160 (h), 178 (b).
61 Stat. 157, 29 U. S. C. §186 (e). That this section, which stands alone in expressly permitting suits for injunctions previously proscribed by the Norris-LaGuardia Act to be brought in the federal courts by private litigants under the Taft-Hartley Act, deals with an unusually sensitive and important problem is shown by the fact that § 186 makes the conduct so enjoinable a crime punishable by both fine and imprisonment.
This fact was expressly recognized by the Court of Appeals for the Second Circuit in A. H. Bull Steamship Co. v. Seafarers’ International Union, 250 F. 2d 326, 331-332. See also W. L. Mead, Inc., v. Teamsters Local No. 25, 217 F. 2d 6, 9-10; Comment, Labor Injunctions and Judge-Made Labor Law: The Contemporary Role of Norris-LaGuardia, 70 Yale L. J. 70, 97-99. Another commentator, though urging his own belief that a strike in breach of a collective agreement is not a “labor dispute” within the Norris-LaGuardia Act, nevertheless admits that Congress thought it was and deliberately decided to leave the anti-injunction provisions of that Act applicable to § 301 suits. See Rice, A Paradox of our National Labor Law, 34 Marq. L. Rev. 233, 235.
H. R. 3020,80th Cong., 1st Sess
Question: What is the basis of the Supreme Court's decision?
A. judicial review (national level)
B. judicial review (state level)
C. Supreme Court supervision of lower federal or state courts or original jurisdiction
D. statutory construction
E. interpretation of administrative regulation or rule, or executive order
F. diversity jurisdiction
G. federal common law
Answer:
|
songer_circuit
|
B
|
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, Appellee, v. Richard ROSARIO, Appellant,
No. 268, Docket 28151.
United States Court of Appeals Second Circuit.
Argued Jan. 15, 1964.
Decided Feb. 10, 1964.
Michael S. Fawer, Asst. U. S. Atty., New York, N. Y. (Robert M. Morgenthau, U. S. Atty., for the Southern District of New York, and Charles A. Stillman, Asst, U. S. Atty., New York, City, on the brief), for appellee.
Joseph I. Stone, New York City, for annellant
Before LUMBARD, Chief Judge, and SWAN and SMITH, Circuit Judges.
LUMBARD, Chief Judge:
Richard Rosario appeals from a judgment of conviction on two counts of a three-count indictment charging him with conspiracy to sell and with the sale 0f narcotics knowing the same to have been illegally imported. 21 U.S.C. §§ 173-174. Judgment was entered in the Southern District of New York after a two-day trial before Judge Croake, sit-without a jury_ Finding no error> we affirm ^ judgment of the district ^ ‘
,. , ,. Three federal narcotics agents testified to the following course of events. On October 15, 1962, at approximately 7:00 P-M- agent Weinberg was introduced to the defendant Rosario by a special em-pl°yee’ or ^former, in the area of 145th Street and Broadway in Manhattan. After a brief discussion concerning the amount of heroin Weinberg desired to purchase and the sale price, Rosario indicated that either he or someone else would return shortly to deliver the narcoties. At approximately 7:30 P.M., Rosario returned and informed Weinberg an(l the informer that he would deliver the narcotics at 9:30 at 136th Street and Broadway. These activities were observed by agents Cockerille and Panella.
A few minutes after Weinberg and the informer had arrived at 136th Street and Broadway, they were met by Rosario and Michael Del Rosario, a co-defendant wbo ultimately pleaded guilty and whom ROSario had met in a restaurant just after the defendant’s second meeting with Weinberg. Apparently feeling that the area was not safe for a delivery, Rosario directed Weinberg to come to the uptown side of the subway entrance on 79th Street and Broadway.
Soon after Weinberg and the informer arrived at the subway station Del Rosario met them and handed Weinberg a bag; Weinberg gave Del Rosario $150 and told him that if the supply was good he would purch+f! “°re‘ ?el Rosari° asfUl;ed him that the supply was good and also stated that he was working for someone named Richie, the name by which Rosario had first been introduced to Weinberg. As the three emerged from the subway station Del Rosario approached Rosario, who had arrived with Del Rosario but had waited outside the station. Del Rosario was observed by Panella and Coek-erille passing the money to Rosario. The bag received by Weinberg was subsequently found to contain heroin in a glassine envelope. The next day Weinberg against purchased heroin from Del Rosario, who again met Rosario after the delivery.
Rosario raises two principal claims of error, first that the government’s evidence failed to support a finding that he had constructive possession of the narcotics passed from Del Rosario to Weinberg, and second that the trial judge improperly refused to direct the government to disclose the true name of the informer.
Constructive possession may be established by a showing of dominance and control over the narcotics although physical custody remains in an agent over whom the defendant exercises control. United States v. Hernandez, 290 F.2d 86 (2 Cir. 1961). Here, the evidence well supports Judge Croake’s finding that Rosario “was no casual participant in any of the above transactions; in each he was the active promoter who assured the delivery of heroin to the undercover agent. In each instance he put into motion the chain of events which led to the sale of heroin to the undercover agent, culminating in delivery of the heroin by the codefendant, Michael Del Rosario.”
We find no error in the government’s refusal to disclose the true name of the informer. Agent Cockerille, on direct examination, testified that one name by which the informer was known was Roy Cummings. Agents Weinberg and Panella were questioned on cross-examination as to the true name of the informer, but Judge Croake sustained government objections. Del Rosario testified for the defense and stated that although agent Weinberg was present at both sales a man he knew as Roy Cummings had given Del Rosario the money and received the narcotics. Rosario, testifying on his own behalf, stated that he-was an addict and admitted that he knew-Roy Cummings and that they had occasionally exchanged narcotics and that he and Del Rosario had occasionally given each other money. Rosario denied any complicity in the transactions of October 15 and 16, declaring that he had not been present at any of them.
It is thus clear that both the defendant and Del Rosario knew the informer-under the name of Roy Cummings.. Moreover, Rosario testified that he knew where Cummings usually could be located', but that he had made no attempt to do-so. Although Rosario’s attorney cross-examined agent Cockerille about an alleged conversation between him and Cummings when Cummings was in prison at, some prior time, the attorney did not even pursue this information so far as-, to inquire as to Cummings’ whereabouts, at the time of Rosario’s trial or where-he might be located. In short there is, no showing that the defense really sought to locate Cummings. Nor has any showing been made that the failure to learn his real name could have prejudiced the-defense.
In Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), the Supreme Court stated: “Where the-disclosure of an informer’s identity, or of the contents of his communication, is. relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege [of nondisclosure] must give way.” However,, the Court did caution that the resolution of these questions requires a balancing of" the public interest in the continued flow of information against the right of the-accused adequately to prepare his defense.
While, of course, it is possible that. Cummings would have supported Rosario’s unlikely story, there is certainly-nothing in this record to suggest that he would have done so. Moreover, since-the defendant here knew the identity of" the informer — at least by an alias— and knew the places he frequented, in the-absence of some showing that the defendant made a diligent attempt to locate Cummings but could not do so without further information, we are unable to see any prejudice to the defense arising from the government’s position.
Our disposition of this case does not negate the government’s obligation to disclose the informer’s identity or information about him where it is clear that the defense is in need of this information in order to secure his attendance to testify. Indeed, there may be •eases where the government would be under a duty to produce the informer, if it is able to do so. But this case falls far short of establishing that the government’s failure to supply information amounts to error. Of course, where the reliability of the informer’s information is essential to establish probable cause, the government must give the information or suffer the consequence. United States v. Robinson, 325 F.2d 391 (2 Cir. 1963).
The judgment of the district court is therefore affirmed.
Question: What is the circuit of the court that decided the case?
A. First Circuit
B. Second Circuit
C. Third Circuit
D. Fourth Circuit
E. Fifth Circuit
F. Sixth Circuit
G. Seventh Circuit
H. Eighth Circuit
I. Ninth Circuit
J. Tenth Circuit
K. Eleventh Circuit
L. District of Columbia Circuit
Answer:
|
songer_appel2_1_3
|
F
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case.
Samuel COHEN et al., Defendants, Appellants, v. COLE NATIONAL CORPORATION, Plaintiff, Appellee.
No. 6196.
United States Court of Appeals First Circuit.
Heard Nov. 6, 1963.
Decided Sept. 2, 1964.
Arthur M. Gilman, Boston, Mass., with whom Walter H. McLaughlin, Boston, Mass., was on brief, for appellants.
Bertram H. Loewenberg, Boston, Mass., with whom Timothy H. Donohue, Stephen A. Hopkins and Sherburne, Powers & Needham, Boston, Mass., were on brief, for appellee.
Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges.
WOODBURY, Chief Judge.
The so-called “golden car key” is a gold plated automobile key having a monogram on one side of its head and an emblem or advertising message on the other. The keys are sold by manufacturers as blanks, sometimes directly to users but for the most part in quantity to business concerns for them to use as gifts to customers for advertising or promotional purposes. The blank keys are cut by the purchasers on key filing machines, sometimes supplied by the manufacturer, to ■fit the car of the person to whom a key is presented.
The “golden car key”, hereinafter ■sometimes referred to as a key, was ■originally developed in 1952 or 1953 by an Ohio corporation in the advertising ¡specialty business which later merged with another Ohio corporation, the plaintiff, Cole National Corporation, and thereafter operated as Cole National’s Elnar Division. In January or February 1959 a principal officer of Elnar, one Kap-stein, entered into an agreement with the ■defendants, Cohen and Sulkin, citizens of Massachusetts, who a short time before had organized a partnership called Allied Associates. For convenience we shall hereinafter refer to the parties as Elnar and Allied. Under the terms of this agreement Allied was to be the sole representative for the sale of Elnar’s keys in New England with the exception of two existing distributors. Allied was free to sell keys outside New England but, in order to avoid conflicts with other distributors, only after clearing such sales with Elnar. Elnar sold keys to Allied for less than it sold its keys to others and allowed Allied to sell keys under its own name and to fix its own resale price. The evidence is conflicting as to whether Allied was to have the status of a “distributor” of Elnar’s keys and also as to whether it was to buy all its keys from Elnar. Allied forwarded its orders to Elnar and Elnar filled them by sending keys to Allied’s customers in envelopes marked with Allied’s name and mark. Beginning in March, 1959, Allied with Elnar’s advice and assistance devoted substantial efforts to selling keys to financial institutions at which it was gratifyingly successful.
On November 15, 1959, Elnar notified Allied by letter that effective a month later its price on orders of less than 2500 keys would be increased and that a separate charge would be made for “art work.” Allied objected and a conference was held at which it was agreed that the charge for “art work” would be cancelled but the price increase would go into effect. In spite of the price increase Allied was still paying less for keys than Elnar’s distributors. Early in 1960 Allied ordered dies for cutting key blanks from Hazelton Chain Co. of Roxbury, Massachusetts, and on June 7, 1960, ordered 45,000 key blanks from Hazelton which were shipped beginning in July of that year. These keys bore the same identifying letters, A, B, C, and D, in the same style of type that Elnar was using and were shipped to customers in the same kind of envelopes that Elnar used. There is a dispute as to whether in some instances Hazelton keys were cut by customers on key filing machines owned and supplied by Elnar.
In July or August, 1960, Kapstein noticed a sharp decline in Allied’s orders and at a conference arranged to discuss that matter was told by partner Sulkin that business was bad in the summer but that he expected improvement in the fall. Sulkin admitted that he did not at that time tell Kapstein of Allied’s order of keys from Hazelton, and apparently Kap-stein’s suspicions were not aroused. In November, when Allied’s orders had practically ceased, at another conference partner Cohen admitted to Kapstein that Allied had another source of supply, and friendly relations between Elnar and Allied came to an abrupt end. Elnar joined its distributors in battle with Allied, by that time incorporated in Massachusetts as Emblematics, Inc., for the golden car key business, and on December 21, 1960, brought suit against Cohen, Sulkin and Emblematics, whom for convenience we shall continue to refer to as Allied, for breach of contract, alleging that Allied had agreed to purchase keys exclusively from Elnar and charged Allied with unfair competition. Allied answered with a general denial and later filed an amended counterclaim in two counts. In the first count Allied sought triple damages under 15 U.S.C. § 15 for violation of §§ 1 and 2 of the Sherman Act as amended, 15 U.S.C. §§ 1 and 2, and in the second count sought damages for unfair competition. Trial by jury resulted in a verdict for the plaintiff on its complaint and also a verdict for the plaintiff on the defendants’ counterclaim. The court entered judgment in accordance with the verdicts and the defendants appealed.
The gist of the plaintiff’s action was that it had entered into a manufacturer-distributor relationship with the defendants whereunder it sold keys to the defendants according to an agreement that the latter would purchase and sell the plaintiff’s keys exclusively. It sought and recovered damages on the basis that the defendants had broken their agreement by purchasing keys from another source. The defendants rested their defense on the proposition that the relationship created was not that of manufacturer-distributor but instead that of seller-customer and that, in any event, they had not agreed to buy keys exclusively from the plaintiff.
The verdicts of the jury settled the issues presented by the complaint and answer, for on this appeal the defendants do not challenge the verdict for the plaintiff on its complaint. The defendants’ appeal is limited to their counterclaim. It is based exclusively on asserted errors of the trial court in excluding certain evidence offered by them in support of their counterclaim and on asserted errors of the court in its instructions to the jury on the law applicable to their counterclaim. The plaintiff as appellee asserts that the court’s rulings on evidence and its instructions to the jury were correct. But it says that we need not concern ourselves with those matters because the trial court ought to have granted its motion for a directed verdict on the counterclaim on the ground that the evidence offered by the defendants was insufficient to warrant a finding for the defendants on either count. We agree with the appellee’s second proposition.
We are very doubtful indeed whether “golden car keys” constitute a “relevant market.” But however that may be, a careful analysis of the record fails to-show any contract, combination in the form of trust or otherwise or conspiracy by Elnar in restraint of trade or commerce among the several states. Nor does the record show any monopoly or attempt to monopolize, or combination or conspiracy by Elnar with any other person to monopolize, any part of the trade- or commerce among the several states, if, indeed, golden car keys could possibly be monopolized. Witness Allied’s purchase of keys from Hazelton. The most that we can find in the record appendices-is evidence of vigorous, at times sharp,, competition between Elnar’s distributors-backed by Elnar and Allied. At times-the participants fought over the same customer, and on one occasion Kapstein-. wrote to one of Elnar’s distributors saying that the news of Sam Cohen in the-hospital “is not my desire as I just want, to put him out of business.” But evidence that Kapstein acting for Elnar put his wish into effect by unfair competitive means is lacking. It is true that, after the break in relations between El-nar and Allied in November, 1960, Elnar made available to its distributors a list of prospective customers submitted by Allied for clearance by Elnar to avoid conflicts with other distributors. But the evidence shows nothing more than the normal reaction of a former supplier forced to become a competitor by the wrongful breach of its distributor. The attempts by Elnar to compete for the customers who had previously purchased its keys through Allied, and whose business was by the jury’s verdict as much its property as that of Allied, do not strike us as improper. The most we can find is evidence of tough but not unfair competition. The motion to dismiss Allied’s counterclaim should have been granted. If there were errors in the exclusion of evidence or in the charge with respect to the counterclaim they are of no consequence.
Judgment will be entered affirming the judgment of the District Court.
Question: This question concerns the second listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case?
A. agriculture
B. mining
C. construction
D. manufacturing
E. transportation
F. trade
G. financial institution
H. utilities
I. other
J. unclear
Answer:
|
songer_appel1_7_5
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine which of these categories best describes the income of the litigant. Consider the following categories: "not ascertained", "poor + wards of state" (e.g., patients at state mental hospital; not prisoner unless specific indication that poor), "presumed poor" (e.g., migrant farm worker), "presumed wealthy" (e.g., high status job - like medical doctors, executives of corporations that are national in scope, professional athletes in the NBA or NFL; upper 1/5 of income bracket), "clear indication of wealth in opinion", "other - above poverty line but not clearly wealthy" (e.g., public school teachers, federal government employees)." Note that "poor" means below the federal poverty line; e.g., welfare or food stamp recipients. There must be some specific indication in the opinion that you can point to before anyone is classified anything other than "not ascertained". Prisoners filing "pro se" were classified as poor, but litigants in civil cases who proceed pro se were not presumed to be poor. Wealth obtained from the crime at issue in a criminal case was not counted when determining the wealth of the criminal defendant (e.g., drug dealers).
Lydia WILLIAMS v. Delano DOWLING, Appellant.
No. 13923.
United States Court of Appeals Third Circuit.
Argued at Christiansted Jan. 31, 1963.
Decided June 11, 1963.
Russell B. Johnson, Christiansted, St. Croix, V. I., for appellant.
James H. Isherwood, Christiansted, St. Croix, V. I. (Warren H. Young of Young & Isherwood, Christiansted, St. Croix, V. I., on the brief), for appellee.
Before MARIS, WOODBURY and HASTIE, Circuit Judges.
MARIS, Circuit Judge.
The defendant, Delano Dowling, appeals from a judgment of the District Court of the Virgin Islands in favor of the plaintiff, Lydia Williams, in an action brought by the plaintiff, the widowed mother of Averill Williams, to recover damages for the death of her minor son resulting from a mortal wound caused by a shot from defendant’s shotgun discharged by defendant’s minor half-brother, Richard Francis. The case was tried without a jury. The trial judge found that the defendant was guilty of negligence in leaving the shotgun accessible to Richard Francis and, without making any specific findings as to damages, awarded the plaintiff $5,000 plus costs and attorney’s fees. On this appeal the defendant contends that the evidence does not establish any negligence on his part and that the law and the evidence do not support the award of any damages to the plaintiff.
The right to recover damages for wrongful death is purely statutory since no such right was given by the common law. In the Virgin Islands such a right of action is given by section 76 of title 5, V.I.C. Section 75 of title 5, V.I.C., provides for an action for injury to a minor child to be brought by his parent or guardian to recover damages for the injury which the child has suffered, and both sections 75 and 77 of the same title provide that such an action shall not abate in case the injured child subsequently dies. In the present case Averill Williams died on his way to the hospital shortly after being shot and no claim is made on his behalf for the injury suffered by him. Accordingly sections 75 and 77 are not relevant to the case before us which must find its statutory support in section 76. The provisions of that section are as follows:
“§ 76. Action for wrongful death “When the death of a person not being a minor, or when the death of a minor person who leaves surviving him either a husband or wife or child or children or father or mother, is caused by the wrongful act or neglect of another, his heirs or personal representatives may maintain an action for damages against the person causing the death, or in case of the death of such wrongdoer, against the personal representative of such wrongdoer, whether the wrongdoer dies before or after the death of the person injured. If such other person is responsible for any such wrongful act or neglect, the action may also be maintained against such other person, or in case of his death, his personal representatives. In every action under this section, such damages may be given as under all the circumstances of the case may be just, but shall not include damages recoverable under section 77 of this title. The respective rights of the heirs in any award shall be determined by the court. Any action brought by the personal representatives of the decedent pursuant to the provisions of section 77 of this title may be joined with an action arising out of the same wrongful act or neglect brought pursuant to the provisions of this section. If an action is brought pursuant to the provisions of this section and a separate action arising out of the same wrongful act or neglect is brought pursuant to the provisions of section 77 of this title, such actions shall be consolidated for trial on the motion of any interested party.”
The revision notes to sections 75, 76 and 77 of title 5, V.I.C., indicate that they were all taken from the California law, section 76 being taken directly from section 377 of the Code of Civil Procedure of California. Therefore, under the rule of statutory construction which the District Court has heretofore properly followed in considering Virgin Islands legislation taken from other jurisdictions, we must construe section 76 to mean what the courts of California, prior to the enactment of that section, had construed section 377 of their Code of Civil Procedure to mean.
The California courts have uniformly held that in an action under section 377 of their Code of Civil Procedure no award of damages may be made for injuries sustained or expenses incurred by the deceased prior to his death. Nor may damages be awarded to the heir for the bereavement, sorrow and mental anguish which he has suffered as a result of the death. Nor may exemplary or punitive damages be awarded. The heir of the deceased who brings the action may only be awarded damages for the wrongful death of the deceased if he is shown to have sustained pecuniary loss by reason of the wrongful death. It is only the pecuniary losses suffered by the heir which may be considered in carrying out the mandate of section 76 to award damages which will be just “under all the circumstances of the ease.” Such damages may include a pecuniary loss arising from the deprivation of the society, comfort and protection of the deceased. The pecuniary loss for which damages may be recovered may be either a loss arising from deprivation of something to which the heir would have been legally entitled, such as support, or may arise from a loss of benefits which under the circumstances could reasonably be expected to have accrued to the heir, even though the obligation resting on the deceased to bestow such benefits may have been a moral one only. It is thus the probable pecuniary loss to the plaintiff or those in whose behalf he sues which is the measure of damages in actions under section 76. But in fixing' the amount of damages, the trier of the facts is always bound by the fundamental rule that pecuniary damages is the limit of recovery, and the amount allowed must, therefore, bear some reasonable relation to the loss shown by the evidence.
The construction placed by the California courts upon the death statute from which section 76 was derived is summed up in Zeller v. Reid, 1940, 38 Cal.App.2d 622, 101 P.2d 730, 731, as follows:
“ * * * Rules governing the measure of damages in cases of this kind are well established. A plaintiff can only recover such pecuniary loss to her as is established by the evidence. This does not include damages for anguish caused by the loss of a loved one. Nothing can be recovered by way of solatium for wounded feelings and such loss may not be considered by the jury in assessing damages. However, the jury may consider the pecuniary value of the society, comfort and protection which might reasonably be expected had the child lived. The amount allowed therefor must be shown to be reasonably related to such pecuniary loss as is shown by the evidence. Ordinarily * * * the parent is entitled to the pecuniary value of the services of the child during minority. She is also entitled to compensation for any pecuniary loss suffered by reason of having been deprived of any pecuniary benefit reasonably to be expected from the child after his majority had he lived. Again, in fixing such pecuniary loss, the evidence must show some relation between the amount awarded and the amount which the parent might have reasonably expected the child to have contributed to her support had he lived and reached his majority. This involves his prospective earning power.”
It is in the light of the rules thus laid down by the courts of California that section 76 of title 5, V.I.C., must be construed and applied by the District Court.
In the case how before us the plaintiff’s complaint contains no allegations of pecuniary loss and prays only for “actual damages for her bereavement, pain and suffering, and punitive damages, all in the total sum of $5,000.-00.” It will at once be observed that none of the elements of damages claimed is of the kind which is recoverable under section 76. This alone, while significant as to the nature of the plaintiff’s claim, would not be enough to compel reversal of the judgment if the plaintiff had offered any evidence of pecuniary loss, since Rule 15(b) of the Rules of Civil Procedure is liberal in authorizing the amendment of pleadings to conform to the evidence. But a careful reading of the record in this case fails to disclose any evidence whatever bearing upon pecuniaiy damage which the plaintiff claimed to have sustained or might be expected to sustain as a result of her son’s death, or which would furnish support for a finding of such damages. And, as we have said, the trial judge made no findings on the subject of damages, pecuniary or otherwise. It necessarily follows that the award of damages of $5,-000.00 was unwarranted and cannot stand, even though the evidence should be held to support the finding of negligence, a question upon which we need not pass.
The judgment of the District Court will be reversed.
. The word “such” here appears to be a typographical error, since its use makes the sentence in effect a mere duplication of the preceding one. In section 377 of the California Code of Civil Procedure the word used at this point is “any” which gives the second sentence of the section its obvious meaning and purpose of permitting suit against any person other than the one whose wrongful act or neglect was the primary cause of the death, if such other person was also responsible for such wrongful act or neglect.
. Municipality v. Stakemann, D.C.V.I.1924, 1 V.I. 60; James v. Henry, D.C.V.I.1957, 3 V.I. 273, 157 F.Supp. 226. And see Starns v. Humphries, 9 Cir., 195], 189 F.2d 357, 359, 13 Alaska 258.
. Gallup v. Sparks-Mundo Engineering Co., 1954, 43 Cal.2d 1, 271 P.2d 34, 39.
. Munro v. Pacific Coast Dredging & Reclamation Co., 1890, 84 Cal. 515, 24 P. 303, 305-306.
. Lange v. Schoettler, 1896, 115 Cal. 388, 47 P. 139.
. As sole surviving parent of the deceased minor child, who was unmarried, the plaintiff is his heir under section 84(3) of title 15, V.I.C., and as sucli was entitled to bring an action under section 76.
. Bond v. United Railroads of San Francisco, 1911, 159 Cal. 270, 113 P. 366, 48 L.R.A.,N.S., 687; Fuentes v. Tucker, 1947, 31 Cal.2d 1, 187 P.2d 752, 757. See Annotations, Measure and elements of damages for personal injury resulting in death of infant, 14 A.L.R.2d 485; Excessiveness and inadequacy of damages for personal injury resulting in death of infant, 14 A.L.R.2d 550.
. Wyseur v. Davis, 1922, 58 Cal.App. 598, 209 P. 213, 216; Hunton v. California Portland Cement Co., 1944, 64 Cal.App. 2d 876, 149 P.2d 471, 474, 150 P.2d 221; Tyson v. Romey, 1948, 88 Cal.App.2d 752, 199 P.2d 721, 724-725.
. Williams v. McDowell, 1939, 32 Cal.App.2d 49, 89 P.2d 155, 157.
. Cossi v. Southern Pac. Co., 1930, 110 Cal.App. 110, 293 P. 663; Casselman v. Hartford Accident & Indemnity Co., 1940, 36 Cal.App.2d 700, 98 P.2d 539, 544.
. Dickinson v. Southern Pac. Co., 1916, 172 Cal. 727, 158 P. 183, 1S5; Zeller v. Reid, 1938, 26 Cal.App.2d 421, 79 P.2d 449, 450.
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_majvotes
|
7
|
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.
David H. SCHOENBAUM, Plaintiff-Appellant, v. Bradshaw D. FIRSTBROOK, et al., Defendants, and Harold W. Manley, Louis Pradal, John C. Rudolph, Donald K. Russell, Aquitaine Company of Canada, Ltd., and Paribas Corporation of New York, Defendants-Appellees.
No. 160, Docket 31408.
United States Court of Appeals Second Circuit.
Argued Nov. 8, 1967.
Decided by a Three-Judge Panel May 29, 1968.
Submitted to the En Banc Court July 31, 1968.
Decided Dec. 30, 1968.
• Sidney B. Silverman, New York City, for appellant.
Whitney North Seymour, Jr., New York City (Simpson, Thacher & Bartlett, and John C. Diller, New York City, on the brief), for appellees Manley, Rudolph and Russell.
Michael M. Maney, New York City (Sullivan & Cromwell, and Marvin Schwartz, New York City, on the brief), for appellees Aquitaine Co. of Canada, Ltd., and Pradal.
David Hartfield, Jr., New York City (White & Case, Thomas A. Butler and Paul J. Bschorr, New York City, on the brief), for appellee Paribas Corp.
Before: LUMBARD, Chief Judge, MEDINA, Senior Circuit Judge, WATERMAN, MOORE, FRIENDLY, SMITH, KAUFMAN, HAYS, ANDERSON and FEINBERG, Circuit Judges.
Sitting pursuant to 28 U.S.C. § 46(c) (1964).
HAYS, Circuit Judge:
After a panel opinion in this case was issued a petition for rehearing en banc was granted. Additional briefs were submitted including an amicus brief by the Securities and Exchange Commission. On consideration by the full court the order of the district court granting summary judgment for the defendants is affirmed as to the defendant Paribas Corporation and reversed as to the other defendants.
The petition for rehearing sought reconsideration only of the issue of whether the defendants were entitled to summary judgment under Rules 12(e) and 56 of the Federal Rules of Civil Procedure^ The court en bane has not reviewed the ’ decision announced by Chief Judge Lumbard on the issue of jurisdiction over the subject matter and that decision stands as the holding of the court.
Factual Background of the Controversy
This is a stockholder’s derivative action on behalf of Banff Oil Ltd., a Canadian corporation. The corporate defendants are Aquitaine Company of Canada, Ltd., and Paribas Corporation. The individual defendants are directors of Banff. Aquitaine is a wholly owned subsidiary of a French corporation, Société National des Petroles d’Aquitaine, which is in turn a subsidiary of an agency of the French government. Paribas is an investment banking corporation, incorporated in Delaware. It is a wholly owned subsidiary of a French banking institution.
In February, 1964, Aquitaine acquired control of Banff through a tender offer to Banff shareholders. Aquitaine thereupon designated three of its representatives to sit on Banff’s eight man board of directors.
In March, 1964, Banff and Aquitaine agreed to conduct joint explorations for oil. The exploratory operations involved in the present case began toward the end of 1964. A test well struck oil on February 6, 1965 and on March 17, 1965 the well was completed.
On December 11, 1964, Banff’s board of directors voted to offer 500,000 shares of Banff treasury stock to Aquitaine, its controlling shareholder, at $1.35 a share. The closing price of Banff stock on the Toronto Stock Exchange on that day was $1.31 bid and $1.37 asked. Aquitaine claims that the sale of stock was necessary in order to finance Banff’s share of the expenses of exploration However it appears that Banff needed only $77,500 for this purpose, whereas the proceeds of the sale amounted to $675,000. On January 5, 1965, the president of Aquitaine wrote to Banff “on behalf of Aquitaine’s members of Banff Oil Board” saying “our Chairman and Managing Director * * * has agreed to your * * * proposal.” The shares were delivered to Aquitaine on March 16, 1965, the day before the completion of the first well.
In November 1965 Paribas negotiated a purchase of 270,000 shares of Banff stock at $7.30 a share, the then current price on the Toronto Stock Exchange.
During 1966, after public announcement of the oil discovery, Banff stock traded at prices as high at $18 a share.
The complaint alleges, in effect, that the defendants, knowing of the oil discoveries and the consequent increase in value of Banff stock, sold 770,000 shares of that stock to Aquitaine and Paribas at vastly inadequate prices as a result of a conspiracy among them to enrich Aquitaine’s “affiliates, business associates and friends” at the expense of Banff and its shareholders other than Aquitaine.
Summary Judgment
The district court’s grant of summary judgment against the plaintiff was accompanied by a refusal of his request for discovery. This court has indicated that summary judgment should rarely be granted against a plaintiff in a stockholder’s derivative action especially when the plaintiff has not had an opportunity to resort to discovery procedures, See, for example, Subin v. Goldsmith, 224 F.2d 753 (2d Cir.), cert. denied, 350 U.S. 883, 76 S.Ct. 136, 100 L. Ed. 779 (1955); Colby v. Klune, 178 F.2d 872 (2d Cir. 1949); Fogelson v. American Woolen Co., 170 F.2d 660 (2d Cir. 1948). The plaintiff typically has in his possession only the facts which he alleges in his complaint. Having little or no familiarity with the internal affairs of the corporation, he is faced with affidavits setting forth in great detail management’s version of what actions were taken and what motives led the affiants to take these actions. Since the facts in such a case are exclusively in the possession of the defendants, summary judgment should not ordinarily be granted where the facts alleged by the plaintiff provide a ground for recovery, at least not without allowing discovery in order to provide plaintiff the possibility of counteracting the effect of defendants’ affidavits.
Indeed in many stockholder’s derivative actions there will be issues as to the knowledge, intent and motive which will require a full trial with an opportunity to observe the demeanor of the witnesses, and to conduct cross-examination in open court. In such cases summary judgment cannot be granted even after discovery has been had. See Subin v. Goldsmith, supra, 224 F.2d at 757. See also Poller v. CBS, 368 U.S. 464, 473, 82 S.Ct. 486, 491, 7 L.Ed.2d 458 (1962) (“We believe that summary procedures should be used sparingly in complex antitrust litigation where motive and intent play leading roles, the proof is largely in the hands of the alleged conspirators, and hostile witnesses thicken the plot.”); Cross v. United States, 336 F.2d 431, 434 (2d Cir. 1964); Alvado v. General Motors Corp., 229 F.2d 408, 411-12 (2d Cir. 1955), cert. denied, 351 U.S. 983, 76 S.Ct. 1050, 100 L.Ed. 1497 (1956). (For a discussion of a number of additional cases, see Judge Frank’s opinion in the Subin case.)
In the present case the plaintiff’s allegations constitute a claim that Aquitaine, knowing the true value of Banff stock, used its control over Banff to acquire 500,000 shares at a vastly inadequate price. The allegations have a sufficient factual basis — Aquitaine’s control, Aquitaine’s knowledge of the oil discovery, the inadequacy of the price paid for the stock — to require at least that the plaintiff be permitted through discovery to develop the evidence to counter defendants’ affidavits.
Plaintiffs Cause of Action Under Section 10-b and Rule 10b-5 of the Securities Exchange Act of 1934
We hold that the complaint states a triable claim under Section 10(b) and Rule 10b-5 of the Securities Exchange Act of 1934 against all defendants except Paribas.
As to Paribas it appears that the negotiations for the purchase of treasury stock were arm’s length negotiations. There is no reason to believe that Paribas was in possession of any information not available to Banff and, more importantly, there is no reason to believe that Paribas was in any position to influence the judgment of the Banff directors by any improper means. Paribas and the purchasers whom it represented were, so far as appears, unconnected with Banff and unable through ownership of Banff stock or otherwise to bring any pressure on Banff to sell its stock at a price below its true value. For these reasons the dismissal of the complaint as to Paribas is affirmed.
The case against the other defendants is a far different one.
The issuance by Banff of its stock to Aquitaine was a sale of securities within the meaning of Section 10(b) and Rule 10b-5. The stockholders of Banff may bring a derivative action for damages to the corporation suffered by reason of a violation of Section 10(b) and Rule 10b-5. Ruckle v. Roto Amer. Corp., 339 F.2d 24 (2d Cir. 1964); Hooper v. Mountain States Sec. Corp., 282 F. 2d 195 (5th Cir. 1960), cert. denied, 365 U.S. 814, 81 S.Ct. 695, 5 L.Ed.2d 693 (1961).
In Ruckle v. Roto Amer. Corp., supra, the corporation proposed to issue shares for an inadequate consideration. The new shares were to be issued to or, at least, to be controlled by the president of the corporation. Certain material information was withheld from one of the directors when the board was called upon to approve the transaction. The issuance of the shares under these circumstances was held to be a fraud upon the corporation within the meaning of Section 10(b) and Rule 10b-5. The court said: “in other contexts, such as embezzlement and conflict of interest, a majority or even the entire board of directors may be held to have defrauded their corporation.” 339 F.2d at 29.
In the present case it is alleged that Aquitaine exercised a controlling influence over the issuance to it of treasury stock of Banff for a wholly inadequate consideration. If it is established that the transaction took place as alleged it constituted a violation of Rule 1 Ob-5, subdivision (3) because Aquitaine engaged in an “act, practice or course of business which operates or would operate as a fraud or deceit upon any person, in connection with the purchase or sale oany security.” Moreover, Aquitaine and the directors of Banff were guilty of deceiving the stockholders of Banff (other than Aquitaine). See Pappas v. Moss, 393 F.2d 865 (3d Cir. 1968).
It is argued that the agreement to sell Banff stock to Aquitaine was entered into before the results of the oil exploration were known. However it is by no means clear that the letter of Aquitaine’s president dated January 5, 1965 resulted in the formation of a binding contract. Moreover in the absence of an opportunity for discovery procedures it cannot be accepted as true that on January 5, 1964 or at the earlier date in December, 1964 when Banff made the offer to sell, the parties were not in possession of sufficient information as to the true value of Banff stock to make the sale at market price a fraud on Banff. In addition, whether Aquitaine’s acquisition of the Banff stock on the eve of the completion of the first oil well constituted overreaching presents an issue to be resolved only after an opportunity for further investigation.
The order of the district court is reversed as to all defendants except Paribas and the ease is remanded for further proceedings consistent with this opinion.
. Regulation op the Use op Manipulative and Deceptive Devices
It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce or of the mails, or of any facility of any national securities exchange—
(b) To use or employ, in connection with the purchase or sale of any security registered on a national securities exchange or any security not so registered, any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors.
. Employment op Manipulative and Deceptive Devices
It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce, or of the mails or of any facility of any national securities exchange,
(1) to employ any device, scheme, or artifice to defraud,
(2) to make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or
(3) to engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person,
in connection with the purchase or sale of any security.
Question: What is the number of judges who voted in favor of the disposition favored by the majority?
Answer:
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sc_casesource
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023
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court whose decision the Supreme Court reviewed. If the case arose under the Supreme Court's original jurisdiction, note the source as "United States Supreme Court". If the case arose in a state court, note the source as "State Supreme Court", "State Appellate Court", or "State Trial Court". Do not code the name of the state.
STRICKLER v. GREENE, WARDEN
No. 98-5864.
Argued March 3, 1999 —
Decided June 17, 1999
Stevens, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O’Connor, Scalia, Ginsburg, and Breyer, JJ., joined in full, in which Kennedy and Souter, 3J., joined as to Part III, and in which Thomas, J., joined as to Parts I and IV. Souter, J., filed an opinion concurring in part and dissenting in part, in which Kennedy, J., joined as to Part II, post, p. 296.
Miguel A. Estrada argued the cause for petitioner. With him on the briefs were Barbara L. Hartung, Mark E. Olive, and John H. Blume.
Pamela A. Rumpz, Assistant Attorney General of Virginia, argued the cause for respondent. With her on the brief was Mark L. Earley, Attorney General.
Gerald T. Zerkin filed a brief for the National Association of Criminal Defense Lawyers et al. as amici curiae urging reversal.
Kent S. Scheidegger filed a brief for the Criminal Justice Legal Foundation as amicus curiae urging affirmance.
Justice Stevens
delivered the opinion of the Court.
The District Court for the Eastern District of Virginia granted petitioner’s application for a writ of habeas corpus and vacated his capital murder conviction and death sentence on the grounds that the Commonwealth had failed to disclose important exculpatory evidence and that petitioner had not, in consequence, received a fair trial. The Court of Appeals for the Fourth Circuit reversed because petitioner had not raised his constitutional claim at his trial or in state collateral proceedings. In addition, the Fourth Circuit concluded that petitioner’s claim was, “in any event, without merit.” App. 418, n. 8. Finding the legal question presented by this case considerably more difficult than the Fourth Circuit, we granted certiorari, 525 U. S. 809 (1998), to consider (1) whether the Commonwealth violated Brady v. Maryland, 373 U. S. 83 (1963), and its progeny; (2) whether there was an acceptable “cause” for petitioner’s failure to raise this claim in state court; and (3), if so, whether he suffered prejudice sufficient to excuse his procedural default.
I
In the early evening of January 5,1990, Leanne Whitlock, an African-American sophomore at James Madison University, was abducted from a local shopping center and robbed and murdered. In separate trials, both petitioner and Ronald Henderson were convicted of all three offenses. Henderson was convicted of first-degree murder, a noncapital offense, whereas petitioner was convicted of capital murder and sentenced to death.
At both trials, a woman named Anne Stoltzfus testified in vivid detail about Whitlock’s abduction. The exculpatory material that petitioner claims should have been disclosed before trial includes documents prepared by Stoltzfus, and notes of interviews with her, that impeach significant portions of her testimony. We begin, however, by noting that, even without the Stoltzfus testimony, the evidence in the record was sufficient to establish petitioner’s guilt on the murder charge. Whether petitioner would have been convicted of capital murder and received the death sentence if she had not testified, or if she had been sufficiently impeached, is less clear. To put the question in context, we review the trial testimony at some length.
The Testimony at Trial
At about 4:30 p.m. on January 5,1990, Whitlock borrowed a 1986 blue Mercury Lynx from her boyfriend, John Dean, who worked in the Valley Shopping Mall in Harrisonburg, "Virginia. At about 6:30 or 6:45 p.m., she left her apartment, intending to return the car to Dean at the mall. She did not return the ear and was not again seen alive by any of her friends or family.
Petitioner’s mother testified that she had driven petitioner and Henderson to Harrisonburg on January 5. She also testified that petitioner always carried a hunting knife that had belonged to his father. Two witnesses, a friend of Henderson’s and a security guard, saw petitioner and Henderson at the mall that afternoon. The security guard was informed around 3:30 p.m. that two men, one of whom she identified at trial as petitioner, were attempting to steal a car in the parking lot. She had them under observation during the remainder of the afternoon but lost sight of them at about 6:45.
At approximately 7:30 p.m., a witness named Kurt Massie saw the blue Lynx at a location in Augusta County about 25 miles from Harrisonburg and a short distance from the cornfield where Whitlock’s body was later found. Massie identified petitioner as the driver of the vehicle; he also saw a white woman in the front seat and another man in the back. Massie noticed that the car was muddy, and that it tinned off Route 340 onto a dirt road.
At about 8 p.m., another witness saw the Lynx at Buddy’s Market, with two men sitting in the front seat. The witness did not see anyone else in the ear. At approximately 9 p.m., petitioner and Henderson arrived at Dice’s Inn, a bar in Staunton, Virginia, where they stayed for about four or five hours. They danced with several women, including four prosecution witnesses: Donna Kay Tudor, Nancy Simmons, Debra Sievers, and Carolyn Brown. While there, Henderson gave Nancy Simmons a watch that had belonged to Whit-lock. Petitioner spent most of his time with Tudor, who was later arrested for grand larceny based on her possession of the blue Lynx.
These four women all testified that Tudor had arrived at Dice’s at about 8 p.m. Three of them noticed nothing unusual about petitioner’s appearance, but Tudor saw some blood on his jeans and a cut on his knuckle. Tudor also testified that she, Henderson, and petitioner left Dice’s together after it closed to search for marijuana. Henderson was driving the blue Lynx, and petitioner and Tudor rode in back. Tudor related that petitioner was leaning toward Henderson and talking with him; she overheard a crude conversation that could reasonably be interpreted as describing the assault and murder of a black person with a ''rock erusher.” Tudor stated that petitioner made a statement that implied that he had killed someone, so the person “wouldn’t give him no more trouble.” App. 99, Tudor testified that while she, petitioner, and Henderson were driving around, petitioner took out his knife and threatened to stab Henderson because he was driving recklessly. Petitioner then began driving.
At about 4:30 or 5 a.m. on January 6, petitioner drove Henderson to Kenneth Workman’s apartment in Timberville. Henderson went inside to get something, and petitioner and Tudor drove off without waiting for him. Workman testified that Henderson had blood on his pants and stated he had killed a black person.
Petitioner and Tudor then drove to a motel in Blue Ridge. A day or two later they went to Virginia Beach, where they spent the rest of the week. Petitioner gave Tudor pearl earrings that Whitlock had been wearing when she was last seen. Tudor saw Whitlock’s driver’s license and bank card in the glove compartment of the car. Tudor testified that petitioner unsuccessfully attempted to use Whitlock’s bank card when they were in Virginia Beach.
When petitioner and Tudor returned to Augusta County, they abandoned the blue Lynx. On January 11, the police identified the car as Dean’s, and found petitioner’s and Tudor’s fingerprints on both the inside and the outside of the ear. They also found shoe impressions that matched the soles of shoes belonging to petitioner. Inside the ear, they retrieved a jacket that contained identification papers belonging to Henderson.
The police also recovered a bag at petitioner’s mother’s house that Tudor testified she and petitioner had left when they returned from Virginia Beach. The bag contained, among other items, three identification cards belonging to Whitlock and a black “tank top” shirt that was later found to have human blood and semen stains on it. Tr. 707.
On January 13, a farmer called the police to advise them that he had found Henderson’s wallet; a search of the area led to the discovery of Whitlock’s frozen, nude, and battered body. A 69-pound rock, spotted with blood, lay nearby. Forensic evidence indicated that Whitlock’s death was caused by “multiple blunt force injuries to the head.” App. 109. The location of the rock and the human blood on the rock suggested that it had been used to inflict these injuries. Based on the contents of Whitlock’s stomach, the medical examiner determined that she died fewer than six hours after she had last eaten.
A number of Caucasian hair samples were found at the scene, three of which were probably petitioner’s. Given the weight of the rock, the prosecution argued that one of the killers must have held the victim down while the other struck her with the murder weapon.
Donna Tudor’s estranged husband, Jay Tudor, was called by the defense and testified that in March she had told him that she was present at the murder scene and that petitioner did not participate in the murder. Jay Tudor’s testimony was inconsistent in several respects with that of other witnesses. For example, he testified that several days elapsed between the time that petitioner, Henderson, and Donna Tudor picked up Whitlock and the time of Whitlock’s murder.
Anne Stoltzfus’ Testimony
Anne Stoltzfus testified that on two occasions on January 5 she saw petitioner, Henderson, and a blonde girl inside the Harrisonburg mall, and that she later witnessed their abduction of Whitlock in the parking lot. She did not call the police, but a week and a half after the incident she discussed it with classmates at James Madison University, where both she and Whitlock were students. One of them called the police. The next night a detective visited her, and the following morning she went to the police station and told her story to Detective Claytor, a member of the Harrisonburg City Police Department. Detective Claytor showed her photographs of possible suspects, and she identified petitioner and Henderson “with absolute certainty” but stated that she had a slight reservation about her identification of the blonde woman. Id., at 56.
At trial, Stoltzfus testified that, at about 6 p.m. on January 5, she and her 14-year-old daughter were in the Music Land store in the mall looking for a compact disc. While she was waiting for assistance from a clerk, petitioner, whom she described as “Mountain Man,” and the blonde girl entered. Because petitioner was “revved up” and “very impatient,” she was frightened and backed up, bumping into Henderson (whom she called “Shy Guy”), and thought she felt something hard in the pocket of his coat. Id., at 36-37.
Stoltzfus left the store, intending to return later. At about 6:45, while heading back toward Music Land, she again encountered the threesome: “Shy Guy” walking by himself, followed by the girl, and then “Mountain Man” yelling “Donna, Donna, Donna.” The girl bumped into Stoltzfus and then asked for directions to the bus stop. The three then left.
At first Stoltzfus tried to follow them because of her concern about petitioner’s behavior, but she “lost him” and then headed back to Music Land. The clerk had not returned, so she and her daughter went to their ear. While driving to another store, they saw a shiny dark blue car. The driver was “beautiful,” “well dressed and she was happy, she. was singing .. . .” Id., at 41. "When the blue car was stopped behind a minivan at a stop sign, Stoltzfus saw petitioner for the third time.
She testified:
“Mountain Man’ came tearing out of the Mall entrance door and went up to the driver of the van and ... was just really mad and ran back and banged on back of the backside of the van and then went back to the Mall entrance wall where ‘Shy Guy' and ‘Blonde Girl’ was standing.... [T]hen we left [and before the van and a white pickup truck could turn] Mountain Man’ came out again-” Id., at 42-43.
After first going to the passenger side of the pickup truck, petitioner came back to the black girl’s car, “pounded on” the passenger window, shook the ear, yanked the door open and jumped in. When he motioned for “Blonde Girl” and “Shy Guy" to get in, the driver stepped on the gas and “just laid on the horn” but she could not go because there were people walking in front of the ear. The horn “blew a long time” and petitioner
“started hitting her ... on the left shoulder, her right shoulder and then it looked like to me that he started hitting her on the head and I was, I just became concerned and upset. So I beeped, honked my horn and then she stopped honking the horn and he stopped hitting her and opened the door again and the ‘Blonde Girl’ got in the back and ‘Shy Guy’ followed and got behind him.” Id., at 44-45.
Stoltzfus pulled her car up parallel to the blue car, got out for a moment, got back in, and leaned over to ask repeatedly if the other driver was “O.K.” The driver looked “frozen” and mouthed an inaudible response. Stoltzfus started to drive away and then realized “the only word that it could possibly be, was help.” Id., at 47. The blue car then drove slowly around her, went over the curb with its horn honking, and headed out of the mall. Stoltzfus briefly followed, told her daughter to write the license number on a “3x4 [inch] index card,” and then left for home because she had an empty gas tank and “three kids at home waiting for supper.” Id., at 48-49.
At trial Stoltzfus identified Whitlock from a picture as the driver of the car and pointed to petitioner as “Mountain Man.” When asked if pretrial publicity about the murder had influenced her identification, Stoltzfus replied “absolutely not.” She explained:
“[F]irst of all, I have an exceptionally good memory. I had very close contact with [petitioner] and he made an emotional impression with me because of his behavior and I, he caught my attention and I paid attention. So I have absolutely no doubt of my identification.” Id., at 58.
The Commonwealth did not produce any other witnesses to the abduction. Stoltzfus’ daughter did not testify.
The Stoltzfus Documents
The materials that provide the basis of petitioner’s Brady claim consist of notes taken by Detective Claytor during his interviews with Stoltzfus, and letters written by Stoltzfus to Claytor. They cast serious doubt on Stoltzfus’ confident assertion of her “exceptionally good memory.” Because the content of the documents is critical to petitioner’s procedural and substantive claims, we summarize their content.
Exhibit 1 is a handwritten note prepared by Detective Claytor after his first interview with Stoltzfus on January 19,1990, just two weeks after the erime. The note indicates that she could not identify the black female victim. The only person Stoltzfus apparently could identify at this time was the white female. Id., at 306.
Exhibit 2 is a document prepared by Detective Claytor some time after February 1. It contains a summary of his interviews with Stoltzfus conducted on January 19 and January 20, 1990. At that time “she was not sure whether she could identify the white males but felt sure she could identify the white female.”
Exhibit 3 is entitled “Observations” and includes a summary of the abduction.
Exhibit 4 is a letter written by Stoltzfus to Claytor three days after their first interview “to clarify some of my confusion for you.” The letter states that she had not remembered being at the mall, but that her daughter had helped jog her memory. Her description of the abduction includes the comment: “I have a very vague memory that I’m not sure of. It seems as if the wild guy that I saw had come running through the door and up to a bus as the bus was pulling off.... Then the guy I saw came running up to the black girl’s window. Were those 2 memories the same person?” Id., at 316. In a postscript she noted that her daughter “doesn’t remember seeing the 3 people get into the black girl’s ear ....” Ibid.
Exhibit 5 is a note to Claytor captioned “My Impressions of ‘The Car,’ ” which contains three paragraphs describing the size of the car and comparing it with Stoltzfus’ Volkswagen Rabbit, but not mentioning the license plate number that she vividly recalled at the trial. Id., at 317-318.
Exhibit 6 is a brief note from Stoltzfus to Claytor dated January 25, 1990, stating that after spending several hours with John Dean, Whitlock’s boyfriend, “looking at current photos,” she had identified Whitlock “beyond a shadow of a doubt.” Id., at 318. The District Court noted that by the time of trial her identification had been expanded to include a description of her clothing and her appearance as a college kid who was “singing” and “happy.” Id., at 387-388.
Exhibit 7 is a letter from Stoltzfus to Detective Claytor, dated January 16, 1990, in which she thanks him for his “patience with my sometimes muddled memories.” She states that if the student at school had not called the police, “I never would have made any of the associations that you helped me make.” Id., at 321.
In Exhibit 8, which is undated and summarizes the events described in her trial testimony, Stoltzfus commented:
“So where is the 3x4 card? ... It would have been very nice if I could have remembered all this at the time and had simply gone to the police with the information. But I totally wrote this off as a trivial episode of college kids carrying on and proceeded with my own full-time college load at JMU.... Monday, January 15th. I was cleaning out my car and found the 3x4 card. I tore it into little pieces and put it in the bottom of a trash bag.” Id., at 326.
There is a dispute between the parties over whether petitioner’s counsel saw Exhibits 2, 7, and 8 before trial. The prosecuting attorney conceded that he himself never saw Exhibits 1, 3, 4, 5, and 6 until long after petitioner’s trial, and they were not in the file he made available to petitioner. For purposes of this case, therefore, we assume that petitioner proceeded to trial without having seen Exhibits 1, 3, 4, 5, and 6.
State Proceedings
Petitioner was tried in Augusta County, where Whitlock’s body was found, on charges of capital murder, robbery, and abduction. Because the prosecutor maintained an open file policy, which gave petitioner’s counsel access to all of the evidence in the Augusta Comity prosecutor’s files, petitioner’s counsel did not file a pretrial motion for discovery of possible exculpatory evidence. In closing argument, petitioner’s lawyer effectively conceded that the evidence was sufficient to support the robbery and abduction charges, as well as the lesser offense of first-degree murder, but argued that the evidence was insufficient to prove that petitioner was guilty of capital murder. Id., at 192-198.
The judge instructed the jury that petitioner could be found guilty of the capital charge if the evidence established beyond a reasonable doubt that he “jointly participated in the fatal beating” and “was an active and immediate participant in the act or acts that caused the victim’s death.” Id., at 160-161. The jury found petitioner guilty of abduction, robbery, and capital murder. Id., at 200-201. After listening to testimony and arguments presented during the sentencing phase, the jury made findings of “vileness” and “future dangerousness,” and unanimously recommended the death sentence that the judge later imposed.
The Virginia Supreme Court affirmed the conviction and sentence. Strickler v. Commonwealth, 241 Va. 482, 404 S. E. 2d 227 (1991). It held that the trial court had properly instructed the jury on the “joint perpetrator” theory of capital murder and that the evidence, viewed most favorably in support of the verdict, amply supported the prosecution’s theory that both petitioner and Henderson were active participants in the actual killing.
In December 1991, the Augusta County Circuit Court appointed new counsel to represent petitioner in state habeas corpus proceedings. State habeas counsel advanced an ineffective-assistance-of-counsel claim based, in part, on trial counsel’s failure to file a motion under Brady v. Maryland, 373 U. S. 83 (1963), “to have the Commonwealth disclose to the defense all exculpatory evidence known to it — or in its possession.” App. 205-206. In answer to that claim, the Commonwealth asserted that such a motion was unnecessary because the prosecutor had maintained an open file policy. The Circuit Court dismissed the petition, and the State Supreme Court affirmed. Strickler v. Murray, 249 Va. 120, 452 S. E. 2d 648 (1995).
Federal Habeas Corpus Proceedings
In March 1996, petitioner filed a federal habeas corpus petition in the Eastern District of Virginia. The District Court entered a sealed, ex parte order granting petitioner’s counsel the right to examine and to copy all of the police and prosecution files in the case. Record, Doe. No. 20. That order led to petitioner’s counsel’s first examination of the Stoltzfus materials, described supra, at 273-275.
Based on the discovery of those exhibits, petitioner for the first time raised a direct claim that his conviction was invalid because the prosecution had failed to comply with the rule of Brady v. Maryland. The District Court granted the Commonwealth’s motion to dismiss all claims except for petitioner’s contention that the Commonwealth violated Brady, that he received ineffective assistance of counsel, and that he was denied due process of law under the Fifth and Fourteenth Amendments. In its order denying the Commonwealth’s motion to dismiss, the District Court found that petitioner had “demonstrated cause for his failure to raise this claim earlier [because] [d]efense counsel had no independent access to this material and the Commonwealth repeatedly withheld it throughout Petitioner’s state habeas proceeding.” App. 287.
After reviewing the Stoltzfus materials, and making the assumption that the three disputed exhibits
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097. Oklahoma Northern U.S. District Court
098. Oklahoma Western U.S. District Court
099. Oregon U.S. District Court
100. Pennsylvania Eastern U.S. District Court
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103. Puerto Rico U.S. District Court
104. Rhode Island U.S. District Court
105. South Carolina U.S. District Court
106. South Dakota U.S. District Court
107. Tennessee Eastern U.S. District Court
108. Tennessee Middle U.S. District Court
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110. Texas Eastern U.S. District Court
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114. Utah U.S. District Court
115. Vermont U.S. District Court
116. Virgin Islands U.S. District Court
117. Virginia Eastern U.S. District Court
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119. Washington Eastern U.S. District Court
120. Washington Western U.S. District Court
121. West Virginia Northern U.S. District Court
122. West Virginia Southern U.S. District Court
123. Wisconsin Eastern U.S. District Court
124. Wisconsin Western U.S. District Court
125. Wyoming U.S. District Court
126. Louisiana U.S. District Court
127. Washington U.S. District Court
128. West Virginia U.S. District Court
129. Illinois Eastern U.S. District Court
130. South Carolina Eastern U.S. District Court
131. South Carolina Western U.S. District Court
132. Alabama U.S. District Court
133. U.S. District Court for the Canal Zone
134. Georgia U.S. District Court
135. Illinois U.S. District Court
136. Indiana U.S. District Court
137. Iowa U.S. District Court
138. Michigan U.S. District Court
139. Mississippi U.S. District Court
140. Missouri U.S. District Court
141. New Jersey Eastern U.S. District Court (East Jersey U.S. District Court)
142. New Jersey Western U.S. District Court (West Jersey U.S. District Court)
143. New York U.S. District Court
144. North Carolina U.S. District Court
145. Ohio U.S. District Court
146. Pennsylvania U.S. District Court
147. Tennessee U.S. District Court
148. Texas U.S. District Court
149. Virginia U.S. District Court
150. Norfolk U.S. District Court
151. Wisconsin U.S. District Court
152. Kentucky U.S. Distrcrict Court
153. New Jersey U.S. District Court
154. California U.S. District Court
155. Florida U.S. District Court
156. Arkansas U.S. District Court
157. District of Orleans U.S. District Court
158. State Supreme Court
159. State Appellate Court
160. State Trial Court
161. Eastern Circuit (of the United States)
162. Middle Circuit (of the United States)
163. Southern Circuit (of the United States)
164. Alabama U.S. Circuit Court for (all) District(s) of Alabama
165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas
166. California U.S. Circuit for (all) District(s) of California
167. Connecticut U.S. Circuit for the District of Connecticut
168. Delaware U.S. Circuit for the District of Delaware
169. Florida U.S. Circuit for (all) District(s) of Florida
170. Georgia U.S. Circuit for (all) District(s) of Georgia
171. Illinois U.S. Circuit for (all) District(s) of Illinois
172. Indiana U.S. Circuit for (all) District(s) of Indiana
173. Iowa U.S. Circuit for (all) District(s) of Iowa
174. Kansas U.S. Circuit for the District of Kansas
175. Kentucky U.S. Circuit for (all) District(s) of Kentucky
176. Louisiana U.S. Circuit for (all) District(s) of Louisiana
177. Maine U.S. Circuit for the District of Maine
178. Maryland U.S. Circuit for the District of Maryland
179. Massachusetts U.S. Circuit for the District of Massachusetts
180. Michigan U.S. Circuit for (all) District(s) of Michigan
181. Minnesota U.S. Circuit for the District of Minnesota
182. Mississippi U.S. Circuit for (all) District(s) of Mississippi
183. Missouri U.S. Circuit for (all) District(s) of Missouri
184. Nevada U.S. Circuit for the District of Nevada
185. New Hampshire U.S. Circuit for the District of New Hampshire
186. New Jersey U.S. Circuit for (all) District(s) of New Jersey
187. New York U.S. Circuit for (all) District(s) of New York
188. North Carolina U.S. Circuit for (all) District(s) of North Carolina
189. Ohio U.S. Circuit for (all) District(s) of Ohio
190. Oregon U.S. Circuit for the District of Oregon
191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania
192. Rhode Island U.S. Circuit for the District of Rhode Island
193. South Carolina U.S. Circuit for the District of South Carolina
194. Tennessee U.S. Circuit for (all) District(s) of Tennessee
195. Texas U.S. Circuit for (all) District(s) of Texas
196. Vermont U.S. Circuit for the District of Vermont
197. Virginia U.S. Circuit for (all) District(s) of Virginia
198. West Virginia U.S. Circuit for (all) District(s) of West Virginia
199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin
200. Wyoming U.S. Circuit for the District of Wyoming
201. Circuit Court of the District of Columbia
202. Nebraska U.S. Circuit for the District of Nebraska
203. Colorado U.S. Circuit for the District of Colorado
204. Washington U.S. Circuit for (all) District(s) of Washington
205. Idaho U.S. Circuit Court for (all) District(s) of Idaho
206. Montana U.S. Circuit Court for (all) District(s) of Montana
207. Utah U.S. Circuit Court for (all) District(s) of Utah
208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota
209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota
210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma
211. Court of Private Land Claims
Answer:
|
songer_geniss
|
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. 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".
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ALMEIDA BUS LINES, INC., Respondent.
No. 6260.
United States Court of Appeals First Circuit.
June 25, 1964.
Vivian Asplund, Attorney, Washington, D. C., with whom Arnold Ordman, General Counsel, Dominick L. Manoli, Associate General Counsel, Marcel Mallet-Prevost, Assistant General Counsel, and Warren M. Davison, Washington, D. C., Attorney, were on brief, for petitioner.
Joseph C. Wells, Washington, D. C., with whom Reilly & Wells, Washington, D. C., was on brief, for respondent.
Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges.
HARTIGAN, Circuit Judge.
This is a petition of the National Labor Relations Board for enforcement of its order issued against respondent on December 26, 1962, following the usuál proceedings under the Act. The Board, in adopting the opinion of its trial examiner, found respondent to have discriminated with respect to the hire and tenure of two of its employees in violation of Section 8(a) (3) of the Act and to have violated Section 8(a) (1) by interfering with, restraining and coercing its employees in the exercise of their statutory rights.
Respondent, a Massachusetts corporation with its principal office and terminal in New Bedford, is engaged in providing bus transportation to the public on runs set up by the Massachusetts Department of Public Utilities. In the latter part of 1961, the Union instituted an organizing campaign among respondent’s .employees. This campaign culminated in a Board conducted election on October 27, 1961, which was won by the Union. On January 18, 1962, the Union filed unfair labor practice charges against respondent which were supplemented by amended charges filed on March 16 and April 23, 1962. On March 22, 1962, an original charge against respondent was filed by one Gilbert Jesus, a former employee. The cases were consolidated for hearing.
The Section 8(a) (3) violation concerned the firing of one Joseph Olivera, and the alleged firing of Jesus. We will consider Olivera’s case first. Olivera had worked as a bus driver for respondent since 1955. Respondent was aware of his union leadership and activity. He was the Union’s observer at the October election and was elected president of the local in November, 1961. On December 12, 1961, Olivera’s bus was involved in an accident resulting in substantial damage to the vehicle. It does not appear from the record whether or not Olivera was at fault. Immediately following the accident, he called the terminal, told what had happened and requested that another coach be sent out for the passengers. When none arrived, he called again and spoke to John Almeida, Jr., respondent’s principal stockholder and husband of Mrs. Almeida, respondent’s president and operating manager. Almeida was very upset and told Olivera “I’ve sent an inspector out, and I’m going to get to the bottom of this.”
Olivera continued driving for three days. On Saturday, December 16, he was in respondent’s office and was told by Mrs. Almeida that he had neglected to make out an accident report. He immediately completed one, whereupon Mrs. Almeida paid him his wages for the prior week and told him not to return to work until he had spoken to her again the following Monday. On Monday, in a telephone conversation, Olivera asked Mrs. Almeida if he was going back to work. She said “No.” He asked if she was firing him. She replied that she was sorry but would have to let him go. He asked why and she replied “Well, you’ve had too many accidents.” Olivera then commented “Come Mrs. Almeida you know that you are firing me because I’m president of the union.” She answered, “Well, you fellows want it that way, and that’s the way its going to be; you want to live by your rules, and I’ve got rules of my own to live by.” Further testimony at the hearing elicited the fact that Olivera had been involved in seven accidents prior to the one on December 12.
This is not the substantial evidence on the record considered as a whole necessary to support the Board’s decision. National Labor Relations Board v. Walton Mfg. Co., 369 U.S. 404, 82 S.Ct. 853, 7 L.Ed.2d 829 (1962). The reason given Olivera for his discharge was that he had “too many accidents” and that is not an unreasonable characterization of someone involved in eight accidents within a four years time span. It may be that none of the accidents were due to any fault on his part. But it is not for the Board to determine whether- or not an employer’s business judgment was too harsh under the circumstances. Rather, the burden is on the Board to-show that an improper motive dictated the employer’s decision to fire its employee and absent such a showing, the-employer’s right to make such a decision must be respected. N.L.R.B. v. United Parcel Service, Inc., 317 F.2d 912 (1st Cir. 1963); National Labor Rel. Bd. v. Houston Chronicle Pub. Co., 211 F.2d 848-(5th Cir. 1954). This the Board has failed to do. One of the first incidents from which the trial examiner inferred an improper motive was absence of any management official to testify as to why Olivera was fired. Such testimony was not necessary since Olivera himself stated the reason given was his number of accidents — which were certainly more than the “few” ascribed to him by the examiner. The examiner reported Joseph Almeida, III, respondent’s general manager and the son of its owner, as admitting that many bus drivers were still operating who had filed many accident reports in the past. All that Almei-da actually said was that he had “seen the forms filed in the office on many occasions” and that he had “seen many of them make the reports.” Mrs. Almeida’s response to Olivera that “you want to live by your rules, and I’ve got rules of my own” was taken by the trial examiner to support his conclusion that Olivera’s discharge was a discriminatory device, This was reading too much into an ambiguous statement which could more accurately reflect the thought that under the rules of the company an employee is discharged if involved in too many accidents. A conversation Olivera had with Almeida, III, concerning the Union, mentioned by the examiner, could not be considered coercive and ended with Al-meida’s statement that “I’m not going to tell you how to vote.” In sum, one is left with the impression that the examiner improperly inferred employer discnmi-nation merely because of Olivera’s membership and active participation of the union. National Labor Relations Board v. Citizen-News Co., 134 F.2d 970 (9th Cir. 1943).
The case of Jesus stands on a different footing. Jesus worked as a regular driver for respondent from 1952 until 1954 when he left voluntarily. He returned to work for respondent in the fall of 1960 as a garage employee and extra driver but quit again in May 1961 in pique because of his continual relegation to garage duty while other part-time men were assigned bus runs at higher pay. In September 1961 he was called by Joseph Florio, respondent’s dispatcher, and asked if he would take the “dog race run” several nights a week. Florio testified that prior to this call, Jesus had come to the terminal and inquired of the possibility of his driving one of respondent’s Labor Day charter buses to Ludlow and that Mrs. Almeida told Florio to “put him to work until there is an opening in the garage; when there’s an opening, we’ll give him an opening' permanently in the garage.” Florio claimed that Jesus was made aware of this arrangement and drove the chartered bus Saturday and Sunday, Jesus denied being hired under such a condition. On Monday he began the dog track run, working two to four times a week as a spare driver on the run and also accepting extra and charter runs. He worked only one night in the garage during this period at which time he noticed that the usual garage worker was out driving a bus: “So I told [Florio] I didn’t like that and I didn’t want it to happen again; I didn’t want to work in the garage.” A few nights later Florio again needed help in the garage and called Jesus who turned down the offer. “So I didn’t call him any more when there was any extra work to do because he didn’t want it.” Nevertheless, Jesus continued on the dog track run until October 25, 1961, two days prior to the election,
Qn 0ctober 2g Jesus was called to the home of Almeida> m the son of Mrs. Almeida; and asked «to g0 for a ride» with him. During the ride Almeida referred to the election the next day and said; “if you fellows go along with the union you’re not going to get no more work, but if you go along with the company and help us out, well, I’ll give you * can’ -Almeida did not deny making ttls statement but contended that he did °n his and without the knowledge 0 1S mo^ er'
It is undisputed that following his participation in the election Jesus was offered no more work by respondent, save a charter trip to Connecticut in November, 1961 after he had recommended respondent’s services to the charterer and a charter trip to Indiana in the Spring of 1962, a few weeks prior to the labor board hearing. On the day following the election, Jesus testified he asked Florio for the reason why no run was assigned to him and Florio’s response was “Well, Johnny [Almeida, III] told me to tell you X'ight now there’s nothing doing.” Jesus continued to go to the terminal but no jobs were assigned to him. In April, 1962 he discovered that the unemployment compensation people had been informed by respondent that he had quit his job. He went to see respondent about this and while there asked Florio “how come you fellows lay me off and then I go down to Security and you mess me up down there, and you guys are putting guys on the runs?” He testified that Flox'io replied “Well, Johnny told me not to give you any more work because of this union baloney.” Florio denied making the statements attributed to him. He claimed that the dog track run ended in late October and following that there was no more work for Jesus insofar as he refused to work in the garage. It appears, however, that at least two new drivers were hired in December, 1961 and Flox'io admitted that several new drivers were hired commencing in the fall of that year. Upon these facts the trial examiner found that respondent had “discriminatorily refused to give regular work as a bus driver to Jesus in order to discourage union membership and activity.”
There is evidence in this record indicating that valid business reasons may have dictated respondent’s failure to offer employee Jesus further driving assignments after the election. A slow down in business in the months following the close of the dog track season in late October', together with the fact that Jesus had refused work in the garage (and the evidence showed respondent generally in need of garage help) may have served to convince respondent that other drivers should be given the bus runs instead. But “[c]onduet which on its face appears to serve legitimate business ends * * * is wholly impeached by the showing of an intent to encroach upon protected rights. The employer’s claim of legitimacy is totally dispelled.” National Labor Relations Board v. Erie Resistor Corp., 373 U.S. 221, 228, 83 S.Ct. 1139, 1145, 10 L.Ed.2d 308 (1963). And where-the Board failed to disclose an improper motive with regard to the discharge of Olivera, it has succeeded in the case of Gilbert Jesus.
Almeida, III admitted that he had talked to Jesus about the union but contended that it was an independent act, done without the knowledge of his mother and by one who was but a “clerk” in the company. This “clerk”, however, was the son of the owner, a director of respondent’s charter service and listed as “General Manager” on respondent’s time tables. The employees who testified at the hearing, when questioned on the subject, stated that they believed him to be the manager. At times he directed Florio as to whom to assign to the various runs. He was thus in a position to make good his threat that unless Jesus went along with the company he would get “no more work.” Jesus’ testimony concerning Florio’s discriminatory statements, which reflected Almeida, Ill’s determination to follow through on his threat, was denied by Florio and raised an issue of credibility which was resolved by the-examiner in Jesus’ favor. The Board’s acceptance of the examiner’s disbelief in Florio’s testimony, based on his observance of the witness while testifying in general was not “incredible on its face.”' N.L.R.B. v. C. Malone Trucking, Inc., 278 F.2d 92, 95 (1st Cir. 1960). It is true that Jesus was not a union protagonist nor is there any evidence that he favored the union. It is also true that he alone-was denied work after voting in the election. Yet he was distinctly warned by the second in command of his employer that if he went along with the union he would receive no further work, and this-threat proved to be very accurate. Faced with the conflicting explanations put. ■forward by respondent and the General •Counsel, each of which was contended to be the true reason for the denial of work, the examiner had to determine which one actually motivated the discharge. Such a decision is often a difficult one to make' •since a single situation often presents .a complex of motives none of which is clearly identifiable as predominant. However, what we said in N.L.R.B. v. Corning Glass Works, 293 F.2d 784, 786 (1st Cir. 1961) is applicable here:
“We agree with the principle underlying [National Labor Rel. Bd. v.] Chronicle Publishing Co. [230 F.2d 543 (7th Cir. 1956)] that where an employer’s conduct admits of a number of inferences, the Board must ascertain his true motive. The effect of his conduct is not dependent ■upon the particular inference drawn by the employee. But this does not mean that an employer can not be held for natural consequences of unambiguous statements. The Board was justified in accepting respondent’s announced reason at its face value.” (Emphasis supplied.)
The order pertaining to Jesus, as modified by the Board, will be enforced. The order pertaining to Olivera is ■denied enforcement. The instances of Section 8(a) (1) violations cited by the Board are not all supported in law and ■only two are clearly violative of the Act and will be granted enforcement. The threat made to Jesus by Almeida III is ■one, N.L.R.B. v. Prince Macaroni Manufacturing Co., 329 F.2d 803 (1st Cir. 1964), and the second is Almeida, Jr.’s warning to employee LaFlamme shortly before the employees went out on strike in April, 1962 that if he went out on strike he had “better look for another job.” Editorial “El Imparcial,” Inc. v. N.L.R.B., 278 F.2d 184 (1st Cir. 1960); see National Labor Relations Board v. Erie Resistor Corp., supra. We return the case to the Board but shall retain our jurisdiction so as to grant prompt enforcement of a revised order consistent with this opinion.
. Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, APL-CIO.
. The Board recognized that Jesus was only a “sixare driver” and revised the examiner’s, recommended order accordingly.
Question: What is the general issue in the case?
A. criminal
B. civil rights
C. First Amendment
D. due process
E. privacy
F. labor relations
G. economic activity and regulation
H. miscellaneous
Answer:
|
songer_counsel1
|
E
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine 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
NATIONAL LABOR RELATIONS BOARD v. KAPLAN et al.
No. 19.
Circuit Court of Appeals, Second Circuit.
Nov. 1, 1943.
Jacob I. Karro, of Washington, D.C., and Robert B. Watts, Gen. Counsel, Ernest A. Gross, Associate Gen. Counsel, Howard Lichtenstein, Asst. Gen. Counsel, and Sanford H. Bolz, Attys., National Labor Relations Board, all of Washington, D.C., for the Board.
Herbert L. Wasserman and Wasserman & Erenstoft, all of New York City, for respondents. <■
Before L. HAND, CHASE, and CLARK, Circuit Judges.
PER CURIAM.
This case comes up on the usual motion for an order of this court to enforce the Board’s order directing the respondents to desist from discouraging membership in an affiliated union, and from “in any other way interfering with * * * employees in the exercise of the right to self-organization * * * and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed by Section 7 of the Act.” The order also reinstated one discharged employee with back pay.
The respondents had resisted an earlier attempt at union organization in their factory, and when the attempt was renewed by another union nearly a year later, there was testimony which, if believed, justified the conclusion that they opposed the second effort as well. As to the discharge, the usual conflict arose whether it was due to the employee’s union activities or to her insubordination; it was possible to find either way. The first objection, being to the sufficiency of the evidence to sustain the Board’s findings, is without merit; there was “substantial” evidence, which it will serve no purpose to set out in detail.
The discharged employee at the time of the hearing had obtained employment which she preferred to reinstatement with the respondents. However, she had been employed upon a probationary period of two months which had not then quite expired. The order directed the respondents to reinstate her with back pay if she applied within five days after the order issued, and if she did not, to pay her any loss of wages from her discharge until she got the new j'ob. The respondents are not content with this, because her new job was at a higher wage than she had earned with them. As we understand it, they wish to be credited with the excess from the time of her new employment until the date of the order, or at least until she declared for reinstatement. If the employee had demanded reinstatement she would have had to credit all that she had earned, because the order would then have restored her to the same position she would have been in, had she been continuously employed. But when she was not reinstated, the wrong so far as it can be measured in dollars ceased as soon as she began to earn as much elsewhere. The respondents were no more entitled to any part of her wages during the probationary period than thereafter.
The respondents also object to the order because of its breadth, invoking National Labor Relations Board v. Express Publishing Co., 312 U.S. 426, 61 S.Ct. 693, 85 L.Ed. 930. We have discussed this question in National Labor Relations Board v. Standard Oil Co., 2 Cir., 138 F.2d 885, handed down herewith, to which we refer.
An enforcement order may pass.
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_method
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine the nature of the proceeding in the court of appeals for the case, that is, the legal history of the case, indicating whether there had been prior appellate court proceeding on the same case prior to the decision currently coded. Assume that the case had been decided by the panel for the first time if there was no indication to the contrary in the opinion. The opinion usually, but not always, explicitly indicates when a decision was made "en banc" (though the spelling of "en banc" varies). However, if more than 3 judges were listed as participating in the decision, code the decision as enbanc even if there was no explicit description of the proceeding as en banc.
Mauro GADALETA, Plaintiff-Appellant, v. NEDERLANDSCH-AMEREKAANSCHE STOOMVART, etc., a/k/a Holland America Line, Defendant-Respondent and Third-Party Plaintiff-Appellant, v. International Terminal Operating Co., Inc., Third-Party Defendant-Respondent.
No. 391, Docket 26874.
United States Court of Appeals Second Circuit.
Argued May 10, 1961.
Decided June 6, 1961.
Bernard Chazen, Hoboken, N. J. (Baker, Garber & Chazen, and Nathan Baker, Hoboken, N. J., on the brief), for plaintiff-appellant.
Edmund F. Lamb, New York City (William E. Fay III, Lawless & Lynch, Purdy, Lamb & Catoggio, New York City, on the brief), for defendant-respondent and third party plaintiff-appellant.
Nicholas Milano, New York City, for third party defendant-respondent.
Before FRIENDLY and SMITH, Circuit Judges, and WATKINS, District Judge.
U. S. District Judge for the Northern and Southern Districts of West Virginia, sitting by designation.
SMITH, Circuit Judge.
Plaintiff, a longshoreman, was injured August 31, 1956 while handling barrels •of pickled skins which had been unloaded from defendant’s vessel and stacked on defendant’s pier on August 23 and 24, 1956. Plaintiff’s claim was that he had .slipped on brine, which had leaked from broken barrels, while loading one of the heavy barrels on the plate of a hi-lo, and that he suffered a herniated intervertebral disc. Defendant introduced reports tending to show that plaintiff had •sprained his back while lifting a barrel, not because of having slipped, and some testimony that there was no brine on the pier.
The jury found for the defendant. The court dismissed the non-jury third party action over against the stevedore, plaintiff’s employer. Plaintiff appeals from judgment entered on the verdict, ■defendant, third party plaintiff, from the dismissal of the third party action.
Plaintiff bases his appeal on two grounds, exclusion from evidence of defendant’s answers to interrogatories propounded by the third party defendant, and refusal of the court to charge on a claim of negligence of defendant in unloading its vessel.
Answers to interrogatories clearly may be utilized as admissions. 4 Moore Fed.Prac. 2d Ed. p. 1190. F.R. Civ.P. Rule 33, Rule 26(d) (2), 28 U.S.C.A.; Lumbermen’s Mutual Ins. Co. of Mansfield, Ohio v. Cantex Mfg. Co., 5 Cir., 1958, 262 F.2d 63. The answers here, however, through the reference to the third party complaint in the interrogatories, were conditional on the prior establishment of the existence of the wet condition of the pier, which was not admitted by defendant. They would have been misleading to the jury under the circumstances. The court was therefore correct in excluding them.
Charge No. 3 rejected by the court was as follows:
“3. The defendant owed the duty to the plaintiff longshoreman to exercise reasonable care in discharging the cargo from the vessel to the pier and in stacking the cargo on the pier and in inspecting the cargo upon its discharge to the pier.”
If negligence in discharging or stacking or in failing to inspect created a condition which caused injury, the pier owner might well be liable under New Jersey law. The difficulty with plaintiff’s position here, however, is that the record reveals no evidence as to the manner of discharge, stacking or inspection from which a finding of negligence could have been made. There was therefore no error in refusing the charge. We need not determine whether the charge as given would have been sufficient had such evidence been presented.
Since judgment for defendant on the principal action must be affirmed, the appeal from the dismissal of the third party action becomes academic.
Judgment affirmed.
. The charge given included the following:
“The defendant owed the duty to plaintiff, as invitee upon the pier, to exercise reasonable care to provide him with a place to work which is safe.
“The defendant’s duty was not limited to warning plaintiff of dangers known to defendant, but included the affirmative duty to exercise reasonable care to make provision for the plaintiff’s safety even if the dangers were apparent.
“If you find that the defendant, in the exercise of reasonable care, knew or should have known that the cargo was ■defective or leaking so as to become unsafe to longshoremen handling the cargo on the pier, then you may find that it was the duty of the defendant to take measures to protect the longshoremen from the dangers. If it failed in that duty, you may find that defendant was negligent.
“If you find that the pier was in fact unreasonably slippery as plaintiff claims and if you find that the condition existed for a period of time sufficient for the defendant to have learned of and corrected it, you may find that the defendant had constructive knowledge that the pier was dangerously slippery due to the wetness on the pier. If you so find and if you find that defendant failed to use reasonable care to remedy the condition, you may then find that defendant was negligent.
“If you find that Holland-America Line was not thus actually or constructively notified of the condition complained of, you must find for the defendant, Holland-America Line.”
. Stark v. Great Atlantic & Pacific Tea Co., 1926, 102 N.J.L. 694, 133 A. 172 (failure to inspect).
Question: What is the nature of the proceeding in the court of appeals for this case?
A. decided by panel for first time (no indication of re-hearing or remand)
B. decided by panel after re-hearing (second time this case has been heard by this same panel)
C. decided by panel after remand from Supreme Court
D. decided by court en banc, after single panel decision
E. decided by court en banc, after multiple panel decisions
F. decided by court en banc, no prior panel decisions
G. decided by panel after remand to lower court
H. other
I. not ascertained
Answer:
|
songer_appbus
|
2
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "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.
Jane S. SHATKIN, as Executrix of the Estate of Lloyd J. Shatkin, Deceased, Plaintiff-Appellee-Cross-Appellant, v. McDonnell Douglas Corporation and American Airlines, Inc., Defendants-Appellants-Cross-Appellees.
Nos. 288, 396 and 520, Dockets 83-7674, 83-7680 and 83-7698.
United States Court of Appeals, Second Circuit.
Argued Nov. 23, 1983.
Decided Jan. 26, 1984.
Randal R. Craft, Jr., New York City (Peter Hoenig, Lawrence M. Harnett, Haight, Gardner, Poor & Havens, New York City, of counsel), for defendant-appellant American Airlines, Inc.
Mendes & Mount, New York City (Garrett J. Fitzpatrick, Anthony G. Bouscaren, New York City, of counsel), for defendant-appellant McDonnell Douglas Corp.
David S. Gould, New York City (F. Lee Bailey and Aaron J. Broder, New York City, of counsel), for plaintiff-appellee Jane S. Shatkin.
Before FRIENDLY, MANSFIELD and KEARSE, Circuit Judges.
MANSFIELD, Circuit Judge:
Defendants American Airlines, Inc. (American) and McDonnell Douglas Corporation (McDonnell Douglas) appeal from that portion of a judgment entered in the Southern District of New York pursuant to the order of Judge Milton Pollack after a jury rendered a special verdict awarding plaintiff Jane Shatkin $87,500 for conscious pain and suffering experienced by her son Lloyd Shatkin immediately prior to the crash of an American Airlines jet on which he was a passenger. Plaintiff cross-appeals from that portion of the special verdict that awarded her $15,000 for loss of services and $15,000 for loss of financial support. We reverse the award for pre-impact pain and suffering and remand with instructions to enter judgment for the defendants notwithstanding the verdict. We affirm the awards for loss of services and financial support.
This case stems from the highly publicized crash of a DC-10 plane on an American Airlines flight near O’Hare International Airport on May 25, 1979, after it lost an engine during take-off. All of those aboard the plane, including Lloyd Shatkin and his wife, Ina, were killed immediately upon impact. Mr. and Mrs. Shatkin left mutual wills bequeathing their property in the event of their simultaneous deaths to their respective parents. Lloyd’s will left three-quarters of his estate to his mother, Jane S. Shatkin, and one quarter to his wife’s parents. His mother was appointed executrix of his estate and as such brought this action against American and the jet’s manufacturer, McDonnell Douglas, to recover damages for wrongful death and pre-impact pain and suffering. On June 29, 1979, the Judicial Panel on Multidistrict Litigation ordered the action transferred to the Northern District of Illinois pursuant to 28 U.S.C. § 1407 for consolidated pre-trial proceedings. After conducting extensive discovery the parties entered a “no contest” stipulation as to the defendants’ liability on September 10, 1982. On November 18, 1982, the action was remanded to the Southern District of New York for trial of the damages claim.
Following further discovery trial was held from June 9 through June 13, 1983. The evidence was undisputed that the plane was a wide-bodied three-engine DC-10 manufactured by defendant McDonnell Douglas Corporation and operated by defendant American Airlines on its Flight 191, which took off on May 25, 1979, from O’Hare International. Airport, Chicago, Illinois. Upon take-off the plane lost an engine on its left side. Mr. Shatkin, a passenger, was seated on the right side of the plane in seat No. 24H, from which a passenger would not normally be able to note the absence of an engine on the left side. The total flight lasted 31 seconds from take-off until the crash.
Portions of a report of the National Transportation Safety Board (NTSB), which is based on data from the plane’s flight recorder, reveal that the plane was able to take off smoothly despite the loss of the engine, climbing to 325 feet. The flight lifted off in a slight left wing-down attitude. This condition was corrected by application of a right wing-down aileron and right rudder, stabilizing the plane at a wings-level stance, and the plane continued to climb. At about 11 seconds before impact the plane began to roll slightly to the left. It was not until 3 seconds before impact that the plane reached a 90-degree position. It then crashed. Barbara Mueller, who witnessed the movements of the plane from a distance of 2V2 miles from the airport and 1 mile from the scene of the crash, testified that she saw the plane tilt from side to side and descend nose-down just before the crash. However, she did not see the take-off and had no recollection of the timing of the movements she witnessed other than to say, “It might have been seconds, minutes, I cannot really tell you.” Thus there is not necessarily any inconsistency between her testimony and the flight recorder. Both indicate that the plane was not in obvious difficulty until a very short time before impact.
In view of the “no contest” stipulation with respect to liability the trial was concerned almost entirely with proof as to damages. Aside from evidence as to the plane’s pre-impact movements no proof of conscious pain and suffering on the part of Lloyd Shatkin was introduced. However, plaintiff did offer some evidence in support of her claim for loss of services and financial support.
At the time of the crash Lloyd Shatkin was 29 years old and employed as a buyer for Mayfair Incorporated, a retail home furnishing firm in Albany, New York. His 1979 salary was $18,000 a year. His employer testified that his 1980 salary probably would have been $28,000 to $80,000, including bonus, but that it was impossible to estimate his future income from the company.
Plaintiff Jane S. Shatkin, a nurse, was a 66-year old widow (her husband died in 1969) with a life expectancy of 14.8 years at the time of her son’s death. She had received $80,000 in life insurance payments on her husband’s death and returned to work. She earned approximately $12,000 to $14,-000 in 1978 and $12,000 in 1979. Prior to his death her son Lloyd had in 1969 assigned to her monthly payments of $96.01 due under an annuity inherited from his father, which expired in 1979. The son was apparently devoted to his mother, making small gifts to her from time to time, advising that she could come to live with him rather than go into a home and doing repair jobs for her around her house.
After a voir dire Judge Pollack filed an opinion (published at 565 F.Supp. 93) refusing to admit the testimony of Dr. Edmund Mantell, an economics expert called by plaintiff to testify as to his projections of Lloyd Shatkin’s future gifts to Mrs. Shatkin based on assumptions as to economic trends, future tax rates, Lloyd’s income and percentages of disposable income that he assumed Lloyd would probably have assigned to his mother. Objections to the evidence were sustained on the ground that “Dr. Mantell’s assumptions and techniques of calculation involve egregious and gross error at almost every step,” 565 F.Supp. at 94, and that “[tjhese assumptions are no more than conjecture and wild speculation.” Id. at 95. Judge Pollack concluded that “[gjiven all the facts and circumstances of this case, the testimony would seriously prejudice, mislead and confuse the jury....” Id. at 96.
The jury returned special verdicts awarding $87,500 for Lloyd Shatkin’s conscious pain and suffering prior to impact, $15,000 for the loss of household services that Lloyd would otherwise have performed for his mother, and $15,000 for support Lloyd would have given his mother over the course of their respective life expectancies. On June 20, American moved pursuant to Rule 50(b) of the Federal Rules of Civil Procedure for judgment notwithstanding the verdict on the claim for pre-impact pain and suffering; in the alternative, American sought an order pursuant to Rule 59 setting aside the verdict and granting a new trial on that issue. The court denied the motion on July 5 and entered judgment on July 6, 1983, from which the defendants appeal.
On August 6, 1983, plaintiff moved for leave to file a motion for a new trial on the issues of loss of support and services, alleging that the jury’s awards were inadequate. On August 12, 1983, the district court denied the motion both on the merits and because it was untimely, from which plaintiff appeals.
DISCUSSION
Plaintiffs Claim for Pre-Impact Pain and Suffering
Defendants claim that the district court erred in not dismissing plaintiff’s claim based on the deceased’s alleged pre-impact pain and suffering. Relying principally on Clancy v. Port of New York Authority, 55 A.D.2d 587, 389 N.Y.S.2d 615 (1st Dept.1976), they contend that under New York law no recovery may be had on such a claim. Secondly they argue that, even if damages could be recovered for pre-impact pain and suffering, the claim here was wholly unsupported by the evidence. Since we agree with the latter contention it is unnecessary to rule on the former.
Assuming that pre-impact pain and suffering is compensable, it must first be shown by a preponderance of the evidence that the decedent had some knowledge or other basis for anticipating the impending disaster; otherwise no basis would exist for a finding of fright or mental anguish. In granting summary judgment dismissing a similar claim, the court in Anderson v. Rowe, 73 A.D.2d 1030, 425 N.Y.S.2d 180 (4th Dept.1980), recognized this elementary proposition:
“The plaintiff was not able to present any evidence that they suffered any conscious pain. Nor was the plaintiff able to show evidence from which one might imply that the decedents were aware of the danger and suffered from pre-impact terror.” (73 A.D.2d at 1030, 425 N.Y.S.2d at 181).
Similarly, in Feldman v. Allegheny Airlines, Inc., 382 F.Supp. 1271 (D.Conn.1974), aff’d in relevant part, 524 F.2d 384 (2d Cir.1975), even though there was evidence suggesting that some passengers anticipated the plane crash that killed the decedent, the court dismissed the claim for pre-impact conscious pain and suffering, stating:
“Nor was any evidence presented from which the Court could fairly infer that the decedent was aware of the proximity of disaster in advance of the actual impact. Mr. Kelly was alert to the situation only because he was monitoring the plane’s descent by looking out the window; the plane’s attitude underwent no dramatic change indicative of disaster.
“Based on the proof adduced specifically on this point and on the totality of the circumstances of this case, the Court concludes that it would be too speculative to award damages for Mrs. Feldman’s conscious pain and suffering and contemplation of death.” (382 F.Supp. at 1300-01).
Eyewitness testimony to the decedent’s pain and suffering is not essential to recovery; indeed, in most cases of the present type it would be difficult if not impossible to obtain. But at least some circumstantial evidence must be adduced from which it can reasonably be inferred that the passenger underwent some suffering before the impact. See, e.g., Solomon v. Warren, 540 F.2d 777, 792 (5th Cir.1976), cert. dismissed, 434 U.S. 801, 98 S.Ct. 28, 54 L.Ed.2d 59 (1977) (permissible to infer that four people aboard small Cessna plane were aware of impending death from fact that pilot radioed plans to ditch at sea).
[3] In the present case there is no evidence in the record from which a person could reasonably find that Lloyd Shatkin suffered any conscious pain and suffering prior to the impact which instantly killed him. The NTSB report, the reliability of which has not been questioned (indeed it was introduced by the plaintiff), reveals that despite the loss of the left engine the plane on which Shatkin and his wife were passengers took off normally, was able to correct a slight bank to the left, and did not go into its 90-degree left plunge until only 3 seconds before it crashed. There is no evidence permitting an inference that Shatkin was aware that the left engine had been lost on take-off; since he was seated on the right side of the wide-bodied plane, it would be sheer speculation to infer that he knew of the incident. There was no evidence that the pilot or anyone else called the danger to the passengers’ attention. As far as the record is concerned Shatkin could have dozed off in his seat. Even if one accepts as wholly credible the testimony of Mrs. Mueller that from a distance of 1 to 2h miles she saw the plane tilt and roll just before the crash this evidence is wholly insufficient to create an inference that Shatkin knew something was wrong. It is a common experience for a plane in no danger to bank to one side immediately after take off, sometimes sharply, in order to conform to prescribed traffic patterns.
On this record we are therefore forced to conclude that even assuming a claim for pre-impact pain and suffering were recognizable in New York, the district court erred in denying defendants’ motion for judgment NOV dismissing plaintiff’s claim. In view of the insufficiency of the evidence we need not rule upon the issue of whether such a claim, if supported by evidence, would be insufficient on its face. For the same reason we also need not decide whether certain remarks of plaintiff’s counsel and the witness Barbara Mueller were so inflammatory as to require a new trial.
The Cross-Appeal
In support of her cross-appeal from the judgment awarding her $15,000 for loss of services and $15,000 for loss of financial support, plaintiff contends that Judge Pollack erred in (1) excluding evidence of her financial needs and the defendant’s possible future income, (2) refusing to admit the proffered expert testimony of Dr. Edmund Mantell, and (3) applying a higher burden of proof than that required by New York law. We have reviewed each of these arguments and find them to be without merit.
It is elementary that a claim for loss of financial support may be supported by evidence of the plaintiff’s needs, and the deceased’s probable future income, even though inexact, since such proof by its nature usually cannot be precise. See Jones & Laughlin Steel Corp. v. Pfeifer, -- U.S. --, 103 S.Ct. 2541, 76 L.Ed.2d 768 (1983); Parilis v. Feinstein, 49 N.Y.2d 984, 985-86, 429 N.Y.S.2d 165, 166, 406 N.E.2d 1059, 1060 (1980). The same principle governs admission of evidence regarding services the deceased would probably render to the plaintiff. But the proffered evidence must be relevant to the issues on trial within the meaning of Fed.R.Evid. 401. The trial judge is vested with wide discretion in determining whether an adequate foundation has been laid for admission of the evidence and whether its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issue, or misleading the jury. Fed.R.Evid. 403. See United States v. Corr, 543 F.2d 1042, 1051 (2d Cir.1976); United States v. Catalano, 491 F.2d 268, 273 (2d Cir.), cert. denied, 419 U.S. 825, 95 S.Ct. 42, 42 L.Ed.2d 48 (1974).
In the present case the district court excluded evidence of the plaintiff’s needs and her son’s income not because of inexactness but because of her failure to lay a proper foundation by showing the probability that he would support her and the extent of such likely support. The evidence on that score was limited to several vague assurances made by Lloyd and repeated by his mother at trial, and similar testimony by a friend of the family. Yet it was clear to Judge Pollack that the only support Lloyd had ever given his mother during his lifetime was a monthly annuity of $96.01, which his father had left him, and which was due to expire in 1979. Although Mrs. Shatkin’s financial difficulties were said to have begun when she retired from her position as director of health services at Sarah Lawrence College on January 1,1978, Lloyd gave her no additional money before his death in late May 1979. Moreover, Mrs. Shatkin was only a secondary beneficiary under Lloyd’s will, which left everything to his wife. If his wife had lived, Mrs. Shat-kin would have received nothing from his estate.
There was no evidence that Lloyd had ever made a firm commitment with any reasonable degree of certainty to support his mother. Given this state of the record we cannot say that the district court abused its discretion in refusing to admit evidence regarding Mrs. Shatkin’s financial condition and standard of living and testimony of her son’s employer about his possible future income. As Judge Pollack stated to plaintiffs counsel “[There] is not a sufficient foundation for what you are attempting to do. You are extrapolating speculations on hypotheses with more speculations at the end. The answer is that you have not laid a foundation for any such evidence.”
Nor do we find that Judge Pollack erred in excluding the testimony of Dr. Edmund Mantell, plaintiff’s economics expert, on the extent of plaintiff’s lost support. Here the district court, in ruling on the admissibility of the proposed testimony, possessed not only the power under Fed.R. Evid. 403 to determine whether it had a propensity for misleading or confusing the jury, see United States v. Margiotta, 662 F.2d 131, 142 (2d Cir.1981), cert. denied, -- U.S. --, 103 S.Ct. 1891, 77 L.Ed.2d 282 (1983); United States v. Bowe, 360 F.2d 1, 15 (2d Cir.), cert. denied, 385 U.S. 961, 87 S.Ct. 401, 17 L.Ed.2d 306 (1966), but also the discretionary right under Fed.R.Evid. 703 to determine whether the expert acted reasonably in making assumptions of fact upon which he would base his testimony, see Zenith Radio Corp. v. Matsushita Electric Industrial Co., 505 F.Supp. 1313, 1325-26, 1330 (E.D.Pa.1981); 3 J. Weinstein & M. Berger, Weinstein’s Evidence 1703[03] (1982) (the court must find that the data underlying the expert’s opinion are “of a kind that is reasonably relied upon by experts in the particular field”).
The district court noted a number of assumptions and assertions made by Dr. Man-tell that were so unrealistic and contradictory as to suggest bad faith. For example, although the only contribution that the decedent had made to his mother was his assignment of the $96.01 monthly annuity due to expire in 1979, Dr. Mantell assumed that Lloyd would have contributed 20% of his disposable income to his mother. That figure was derived from statistics indicating that the average head of a household spends 20% of his income on himself; we find no basis for using that statistic in these calculations, where it has no relevance at all. In a further effort to justify such a high level of projected contributions, Dr. Mantell compared their discounted present value with Mrs. Shatkin’s undiscounted projected consumption; such an “apples and oranges” comparison simply cannot withstand scrutiny. Moreover, after projecting Lloyd’s income for 1990 to be either $151,990 or $117,700, Dr. Mantell deducted no state tax and applied a constant 11.7% federal tax rate. That assumption is highly suspect even when considered on its own; it is completely unacceptable when one realizes that he used a 23% rate in calculating the tax on Mrs. Shatkin’s income from whatever award she might receive, which of course would be far less than Lloyd’s annual income. Clearly such proposed testimony was riddled with errors, and therefore ex-cludable under Fed.R.Evid. 703. In addition, it would probably have hopelessly confused and misled the jury because of the latter’s inability to appraise the extremely questionable and unsupported assumptions underlying the testimony. We therefore conclude that the trial court’s decision to exclude that testimony was not erroneous.
Finally, plaintiff claims that it was error for the district court not to charge the jury on New York’s “Noseworthy rule,” which permits a plaintiff in a wrongful death action to assume a lower burden of proof than in an ordinary negligence action. Noseworthy v. City of New York, 298 N.Y. 76, 80 N.E.2d 744 (1948). We are not persuaded that the Noseworthy rule applies to this case, where the defendants have conceded their liability and the only issue is the proper measure of damages. But even if we assume that it was error not to charge the rule with respect to proof of loss of support and services the error was clearly harmless. There simply was no evidence that the plaintiff would have received any financial support from her son other than the annuity that expired in 1979. Viewed in that light the jury’s special verdict of $15,000 was not unreasonable. The $15,000 verdict for the loss of Lloyd’s services— which amounted to repairing an iron, changing light bulbs, moving furniture and the like during his occasional visits to Mrs. Shatkin’s home — was also quite adequate. In short, applying the Noseworthy rule would have made no difference in this case.
The judgment, insofar as it awards $87,-500 for pain and suffering, is reversed and the case remanded for entry of judgment notwithstanding the verdict on that issue. In all other respects the judgment is affirmed.
. Following New York’s choice of law principles, we apply New York law to this case, both because of the numerous contacts with the forum, and because the parties have conducted the entire litigation on the assumption that New York law governs. See Cousins v. Instrument Flyers, Inc., 44 N.Y.2d 698, 405 N.Y.S.2d 441, 376 N.E.2d 914 (1978).
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_typeiss
|
C
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups.
CHILDERS OIL COMPANY, INCORPORATED, a corporation; James E. Childers, Jr.; Erma L. Childers, doing business as Childers Short Stop, Plaintiffs-Appellants, v. EXXON CORPORATION, a corporation, Defendant-Appellee.
No. 91-2598.
United States Court of Appeals, Fourth Circuit.
Argued Dec. 4, 1991.
Decided April 3, 1992.
Carl Lee Fletcher, Jr., Spilman, Thomas, Battle & Klostermeyer, Charleston, W.Va., argued (David A. Faber, R. Scott Long, on brief), for plaintiffs-appellants.
William R. O’Brien, Howrey & Simon, Washington, D.C., argued (Darren B. Bern-hard, Gregory J. Commins, Jr., Howrey & Simon, Washington, D.C., Thomas B. Bennett, Bowles, Rice, McDavid, Graff & Love, Charleston, W.Va., William R. Hurt, Exxon Co., U.S.A., Houston, Tex., on brief), for defendant-appellee.
Before HALL, NIEMEYER, and LUTTIG, Circuit Judges.
OPINION
K.K. HALL, Circuit Judge:
Childers Oil Company and James and Erma Childers d/b/a Short Stop appeal the district court’s grant of summary judgment for defendant Exxon Corporation in Childers’ action for breach of contract, tor-tious interference with prospective business relations, and fraud, and on Exxon’s counterclaims for trademark infringement, breach of contract, and recovery on a promissory note. Through a combination of waiver, the parol evidence rule, and the statute of limitations, the appellants are unable to recover. In addition, they offer no colorable defenses to Exxon’s counterclaims. Accordingly, the judgment is affirmed.
I.
The appellants are two businesses, both wholly owned by James and Erma Child-ers — Childers Oil Co., Inc., and Short Stop, a partnership. Childers Oil was formed in 1975 to operate a bulk fuel distributorship in Bluefield, West Virginia. Childers Oil initially sold Amoco products. Shortly after it began operations, Childers Oil built a new plant near Princeton, West Virginia, at the junction of two major highways — Interstate 77 and U.S. Route 460.
In January 1980, Childers Oil built a retail service station adjacent to its Princeton plant. It leased the station to the Short Stop partnership. The competition-less station prospered. In early 1982, however, Amoco announced its withdrawal from West Virginia. Mr. Childers learned of-Amoco’s action in his Sunday newspaper.
If Mr. Childers worried of not having a supplier, his fears were quickly erased. The very next day, William Lucas, a distributorship salesman for Exxon, telephoned Mr. Childers to express Exxon’s interest in replacing Amoco as Childers Oil’s supplier. At the time, Exxon had no retail outlets on Interstate 77 from Charleston, West Virginia, to Wytheville, Virginia — a stretch of over 120 miles — and it was interested in filling this lacuna in its competitive ubiquity.
Mr. and Mrs. Childers had one serious concern about Exxon. Exxon owned a tract of land 400 yards from Short Stop, and the Childers had heard rumors that Exxon planned to build a companyowned station there. The Childers did not want to become an Exxon distributor and then be forced to compete with another retail Exxon outlet.
A few days after the initial telephone call, Lucas came to the Childers Oil plant to discuss Exxon’s proposal, Mr. Childers asked Lucas about Exxon’s plans for its tract of land. According to Mr. Childers, Lucas promised that Exxon would not build a retail station on the tract if Childers Oil would sign an Exxon Distributor Agreement.
A few weeks passed. Then Lucas and his boss, Lowe Lunsford, paid Mr. Childers another visit. Again, Mr. Childers brought up his concern about Exxon’s plans for its land. Lunsford assured him that the property was in Exxon’s inactive “land bank,” and Exxon had no plans to construct a station there.
Through the summer of 1982, Mr. Child-ers continued negotiations with Exxon. Both Lucas and Lunsford repeated their assurances that Exxon would not compete with Short Stop by building on its “land bank” tract.
On September 14, 1982, Childers Oil signed Exxon’s standard Distributor Agreement. The agreement contains a boilerplate integration clause:
25. ENTIRE AGREEMENT: This writing is intended by the parties to be the final, complete and exclusive statement of their agreement about the matters covered herein. THERE ARE NO ORAL UNDERSTANDINGS, REPRESENTATIONS OR WARRANTIES AFFECTING IT.
Mr. Childers asked that Exxon’s promise not to compete be included in the agreement, but was told that no changes could be made in the form. He signed anyway. The agreement was to expire on March 31, 1984.
Within a few months, Mr. and Mrs. Child-ers began hearing new rumors that Exxon was planning to develop its property. Mr. Childers called Lunsford each time he heard such a rumor. At first, Lunsford said that he had heard nothing, but he later expressly stated that a company-owned station would not be built.
Sometime in late 1983, a contractor showed up at Childers Oil and said he was there for a pre-bid conference on the “new station.” Mr. Childers told the contractor that he had no intention of building a new station. He immediately called Lunsford, who said that Exxon was “just getting some cost figures together” and was not actually planning to build.
Nonetheless, before the end of 1983, Exxon began construction of a station to compete with Short Stop. Mr. Childers called Lunsford at the first sign of construction. Lunsford said, “Jim, I am sorry, I didn’t have the clout I thought I had, I couldn’t prevent this from happening.”
By June 1984, Exxon’s retail service station was open for business. Short Stop’s business immediately and sharply declined. On June 10, 1984, Mr. Childers appeared in front of the Small Business Subcommittee of the Joint Committee of Government and Finance of the West Virginia Legislature to complain of Exxon’s conduct. To contravene Mr. Childers’ complaint, Exxon sent a written response, with a cover letter signed by Lunsford, to members of the subcommittee on September 14,1984. In it, Exxon asserted that it had always planned to build the station, and no one at Exxon had told Childers otherwise. Exxon’s response was not sent to Mr. Childers, and he did not inquire about the subcommittee’s handling of his complaint. In September 1988, at Mr. Childers' deposition, he first learned of the existence of this document.
If they desired relief through litigation, 1984 was the most apt moment for the Childers to have filed suit against Exxon. Instead, they took fateful steps toward financial and litigation ruin. In early 1984, with construction of the company station going on before their eyes, they signed a second distributorship agreement, substantively identical to and expressly superseding the first. This new agreement extended the Exxon franchise for three years. The Childers spent $700,000, most of it borrowed, turning Short Stop into an extravagant traveler’s mecca. The new and improved Short Stop included an ice cream store, convenience store, delicatessen, separate restroom building, and a large increase in gasoline capacity.
The revenue of Short Stop could not keep up with the increased debt burden. In January 1986, Childers Oil’s account with Exxon became delinquent (over thirty days late) in an amount exceeding $100,000. The parties agreed on a payment plan under which Childers Oil would pay the two oldest outstanding invoices each time it picked up a load of gasoline from Exxon. This repayment scheme did not work, however, because Childers Oil began purchasing gasoline from Pennzoil instead of Exxon, and thus avoided the triggering of two-for-one payments. Exxon soon exercised its contractual right to demand payment by cashier’s check.
Things got even worse when Exxon learned that Childers Oil had sold Pennzoil gas under Exxon’s trademark. On April 23, 1986, Exxon exercised its right under the Petroleum Marketing Practices Act to terminate the franchise, effective July 24, 1986, because of the misbranding. The appellants admit the misbranding and the lawfulness of the franchise termination.
During the three-month window between notice and the effective date of the termination, Mr. and Mrs. Childers tried to sell Childers Oil to H.C. Lewis, an Exxon distributor in Welch, West Virginia. The Childers and Lewis agreed that Lewis would purchase Childers Oil and sell gas to Short Stop, which the Childers would continue to own. The agreement, however, was contingent on Exxon’s increasing Lewis’ allotment so that he would have enough gas to supply Short Stop. Because it had no more wish to entrust its trademark to the Childers indirectly as directly, Exxon refused to increase Lewis’ allotment, and the proposed deal collapsed.
In October 1986, two months after termination of the franchise, the Childers still owed Exxon $224,168.27. They signed a promissory note providing for monthly payments and interest. They have made only small payments, and do not dispute the amount that they owe on the note.
On August 10, 1987, the Childers filed this suit against Exxon in district court. Jurisdiction rests on diversity of citizenship. They amended the complaint twice, the last time on March 24, 1989. The final complaint pled three claims: (1) breach of contract, (2) tortious interference with plaintiffs’ prospective business relationship with Lewis, and (3) fraud. The fraud claim did not appear in earlier versions of the complaint.
Exxon counterclaimed for breach of the distributorship agreement, for trademark infringement, and to recover on the promissory note. At the conclusion of discovery, on September 15, 1989, Exxon moved for summary judgment on all claims and counterclaims. On June 27, 1991, the district court granted summary judgment for Exxon.
Plaintiffs appeal.
II.
The substantive law of West Virginia applies to this diversity action. A concept central to the contract issues we must address — the parol evidence rule — is not, as its name may suggest, a procedural rule of evidence, but is rather a substantive component of West Virginia’s law of contracts. United States v. Bethlehem Steel Co., 215 F.Supp. 62, 68 n. 12 (D.Md.1962), aff'd, 323 F.2d 655 (4th Cir.1963); Jack H. Brown & Co., Inc. v. Toys “R” Us, Inc., 906 F.2d 169, 173 (5th Cir.1990); see Mohr v. Metro East Manufacturing Co., 711 F.2d 69, 72 (7th Cir.1983).
The district court held that the parol evidence rule barred use of Exxon’s oral promises to vary the terms of the written distributorship agreement. See generally, Kanawha Banking and Trust Co. v. Gilbert, 131 W.Va. 88, 46 S.E.2d 225, 232-233 (1947); Cardinal State Bank v. Crook, 184 W.Va. 152, 399 S.E.2d 863, 866-867 (1990). Appellants proffer various exceptions to the rule, but none of them quite fit.
A.
Fraudulent inducement is an exception to the parol evidence rule, because such evidence does not “alter or vary” the terms of the contract; instead, a party may avoid the contract altogether (through rescission) by showing that it was fraudulently procured. Central Trust Co. v. Virginia Trust Co., 120 W.Va. 23, 197 S.E. 12, 16 (1938); Foremost Guaranty Cory. v. Meritor Savings Bank, 910 F.2d 118, 123 (4th Cir.1990) (applying Virginia law). The Childers do not seek rescission of the distributorship agreement; they seek damages for breach of the alleged parol promise.
B.
Appellants’ argument that the no-competition promise was a collateral contract is unavailing as well. They do not identify the separate consideration for the collateral promise. The subject matter of the supposed collateral contract is very closely related to the distributorship agreement, and indeed, a covenant not to compete would naturally be a part of an integrated distributorship agreement. This close connection precludes a finding of a collateral contract. Jones v. Kessler, 98 W.Va. 1, 126 S.E. 344, 349 (1925). Finally, the agreement’s integration clause emphasizes that no “ORAL UNDERSTANDINGS ... AFFECT[ ] IT.” The district court rightly rejected the collateral contract argument.
C.
In direct contradiction to the collateral contract theory, appellants posit that the oral promise was additional consideration for the distributorship agreement. Where consideration is a mere recital (e.g. “one dollar and other good and valuable consideration”), parol evidence may establish what the actual consideration was. However, West Virginia law draws a line at enforcement of parol promises as “additional consideration.” Kanawha Banking & Trust, 46 S.E.2d at 233-234. In a sense, every promise made in a contract is in “consideration” of the other party’s promises, and the “additional consideration” exception would swallow the rule if it were applied as appellants suggest.
D.
Finally, with full knowledge that Exxon had broken its promise not to compete, Childers entered into a new distribution agreement. This second agreement specifically states:
28. PRIOR AGREEMENT: This Agreement cancels and supersedes any prior agreements between the parties thereto, covering the purchase and sale of product(s) covered by this Agreement.
The parol term the Childers seek to enforce was, if anything, a part of the original distributorship agreement. Signing a new agreement that “cancels and supersedes” the former, with knowledge of a breach of the old agreement, is a clear waiver of that breach.
In sum, the Childers have no tenable breach of contract claim, and the summary judgment on that claim was proper.
III.
The district court held that Exxon had an absolute right to refuse to increase Lewis’ allotment, and its refusal can never be “tortious interference” with the proposed Lewis-Childers transaction. Restatement (Second) of Torts § 766, comment b; Torbett v. Wheeling Dollar Savings & Trust Co., 173 W.Va. 210, 314 S.E.2d 166, 171-173 (1983) (relying on Restatement definition).
We agree with the district court, for the reason it gave and more. Tortious interference claims lie only against a party that is a stranger to the relationship. Torbett, 314 S.E.2d at 173. Exxon would have been the supplier of the fuel that was the subject of the proposed transaction, it would have had to license the use of its marks, and it would have derived profits from the sale of the product. Finally, even if Exxon were a stranger to the deal, and had some legal duty to supply the fuel, we think it was entitled as a matter of law to refuse to entrust its product to a person who had admitted prior misuse of its trademark. See Humboldt Oil Co. v. Exxon Co., USA, 823 F.2d 373, 375 (9th Cir.1987), cert. denied, 485 U.S. 1021, 108 S.Ct. 1575, 99 L.Ed.2d 890 (1988).
IV.
The West Virginia statute of limitations for claims of fraud is two years. W.Va. Code § 55-2-12. The parties agree that if the statute of limitations began to run when the Childers learned that Exxon was going to build a company-owned station, the action is barred.
A.
Appellants, however, argue that they did not find out that Exxon knew its promise was false when made until September 1988, when, at his deposition, Mr. Child-ers was shown Exxon’s 1984 letter to the state legislative subcommittee. Breaking a promise, without more, is only a breach of contract. Making a promise that is not intended to be kept may be a fraud, if the other elements of that tort are present. Janssen v. Carolina Lumber Co., 137 W.Va. 561, 73 S.E.2d 12, 17 (1952); Dyke v. Alleman, 130 W.Va. 519, 44 S.E.2d 587 (1947). Consequently, the Childers argue that they did not “discover” their fraud cause of action until Mr. Childers’ deposition, and the statute of limitations did not begin to run until then.
Appellants assert that the possibility of sanctions under Fed.R.Civ.Pr. 11 is a strong deterrent to pleading fraud claims on bare suspicion that a broken promise was never intended to be kept. Appellees counter that Rule 9(b) permits intent to be pled generally, and, if fraud claims do not accrue until a smoking gun is in the plaintiff's hands, few claims will accrue until after a suit is filed and information in the defendant’s possession is discovered. This debate, whether knowledge of so-called “legal” causation is required to begin the running of a statute of limitations, is not new to jurisprudence.
Two recent West Virginia cases provide guidance. In Hickman v. Grover, 178 W.Va. 249, 358 S.E.2d 810 (1987), the plaintiff had been injured by a bursting air tank. He sued a defendant, who then filed a third-party claim against the manufacturer of the tank. More than two years after the accident, the plaintiff attempted to assert a claim directly against the manufacturer. He asserted that the statute of limitations did not begin to run until he discovered that the tank was defective. The West Virginia court rejected his argument, 358 S.E.2d at 813-814:
In products liability cases, the statute of limitations begins to run when the plaintiff knows, or by the exercise of reasonable diligence should know, (1) that he has been injured, (2) the identity of the maker of the product, and (3) that the product had a causal relation to his injury.
* * * * * *
Hickman asks us to take this one step further. He suggests that we add another requirement, i.e., that the product was defective as a result of the conduct of its manufacturer. Indeed, this is a big requirement, because such knowledge is often not known with legal certainty until after the jury returns its verdict. At the very least, this knowledge would be very difficult to obtain, except during the discovery phase of trial. Thus, we would have a situation where the statute of limitations would almost never accrue until after the suit was filed. This would almost abrogate the statute of limitations in products liability claims. We cannot accept such a holding.
Hickman was followed by Stemple v. Dobson, 184 W.Va. 317, 400 S.E.2d 561 (1990), which imported its concepts into a fraud case. The court held, 400 S.E.2d at 565:
[W]e conclude that where a cause of action is based on tort or on a claim of fraud, the statute of limitations does not begin to run until the injured person knows, or by the exercise of reasonable diligence should know, of the nature of his injury, and determining that point in time is a question of fact to be answered by the jury.
The court identifies the “injury” as the thing to be discovered, not that the defendant’s state of mind or breach of duty may legally entitle the plaintiff to recover damages. The majority rule is the same. United States v. Kubrick, 444 U.S. 111, 118-125, 100 S.Ct. 352, 357-360, 62 L.Ed.2d 259 (1979); Phillips v. Amoco Oil Co., 799 F.2d 1464, 1469 (11th Cir.1986); Berkley v. American Cyanamid Co., 799 F.2d 995, 999 (5th Cir.1986).
The “discovery rule” tolls a statute of limitations until the plaintiff has, or ought to have, answers to two questions: Am I injured? Who injured me? Kubrick, 444 U.S. at 122, 100 S.Ct. at 359. At that point, the plaintiff has enough information to begin investigating his claims. Phillips, 799 F.2d at 1469 (fraud cause of action accrues “when the plaintiff should have discovered facts that would provoke a person of ordinary prudence to inquiry”); Berkley, 799 F.2d at 999 (fraud cause of action accrues when plaintiff knows of “falsity of defendant’s statements and their relationship to the claimed injury”). He may not know enough to win a verdict or even file a complaint on that first day, but that is why the law gives him a reasonable limitations period to investigate. The appellants had sufficient knowledge to be put on a duty to inquire when Exxon built its company station. Lest the discovery rule abrogate West Virginia’s fraud statute of limitations, we hold that the fraud claim is barred.
B.
Appellants seize the Stemple court’s comment that the point in time that a plaintiff discovers enough to start the clock running is a question of fact to be resolved by a jury. Appellants argue that the district court should have let a jury decide when the statute began to run.
We do not read Stemple to require submission of a statute of limitations defense on undisputed facts to a jury. Stemple was a pair of homeowners’ appeal of a summary judgment entered against them in their suit against the prior owners for, among other things, fraudulently concealing severe termite damage to the structure. As we described above, the court identified the termite damage, and not the defendants’ state of mind, as the thing to be discovered. 400 S.E.2d at 565. The court then surveyed the evidence in the case, which consisted of a series of events, each one of which would tend to cause more alarm in the plaintiffs. Inasmuch as application of the statute of limitations required identifying one of these discoveries as the proverbial straw that broke the camel’s back, the court concluded, in reversing the summary judgment (400 S.E.2d at 566, emphasis added):
Clearly, reasonable persons could draw different conclusions from these facts.... Because there is a material question of fact with regard to when the plaintiffs’ right of action accrued so as to commence the running of the statute of limitations, the matter was clearly a question for the jury.
In other words, if resolution of a statute of limitations defense presents a genuine question of material fact, a jury should resolve it. If not, a statute of limitations may be applied as a matter of law. Here, if Childers’ knowledge of Exxon’s state of mind were a prerequisite to the running of the statute, a jury might very well have to resolve whether Childers should have, with reasonable diligence, discovered the 1984 report to the legislative subcommittee sooner. However, because knowledge of the injury and the injurer is enough, and appellants admittedly had both more than two years before suit, there is no material issue of fact for a jury to resolve. Exxon is entitled to the benefit of its statute of limitations defense as a matter of law.
The judgment of the district court is affirmed.
AFFIRMED.
. This opinion will refer to the appellants collectively as "Childers,” except where the context indicates otherwise.
. Exxon denies that this oral promise was made, but concedes that disputed issues of fact must be resolved in appellants’ favor for purposes of Exxon's motion for summary judgment. Our recital of facts applies this rule, and we make no attempt to identify every fact that Exxon might controvert if the case were tried.
. 15 U.S.C. §§ 2801-2841.
. Exxon also argues that if the promise not to compete were a freestanding contract independent of the distributorship agreement, it would be unenforceable under the Statute of Frauds, because any contract for a term of more than one year must be in writing. W.Va.Code, § 55-1 — 1(f) (1981 & Supp.1991). Exxon did not as-serf this defense below, however, and it was not considered by the district court. Because adequate alternate grounds for affirmance are present, we need not decide whether Exxon may interpose a statute of frauds defense for the first time on appeal.
. Mr. Childers admitted at his deposition that he knew Exxon had broken its promise, and that he felt he had been lied to, when construction of the station began.
. Kubrick was cited by the West Virginia court in a medical malpractice case, Harrison v. Seltzer, 165 W.Va. 366, 268 S.E.2d 312, 315 n. 2 (1980), where the court stated in dicta the rule it was later to explicitly adopt in Hickman:
[W]here the adverse results of medical treatment are so extraordinary that the patient is immediately aware that something went wrong, ... the statute of limitations will begin to run once the extraordinary result is known to the plaintiff even though he may not be aware of the precise act of malpractice.
Harrison, 268 S.E.2d at 315. West Virginia’s medical malpractice/discovery rule jurisprudence is disproportionately replete with cases involving foreign objects left within a patient’s body during surgery. Hill v. Clarke, 161 W.Va. 258, 241 S.E.2d 572 (1978); Morgan v. Grace Hospital, 149 W.Va. 783, 144 S.E.2d 156 (1965); Gray v. Wright, 142 W.Va. 490, 96 S.E.2d 671 (1957), overruled in part, Morgan, 144 S.E.2d at 161 (fraudulent concealment of object's presence by physician not required for discovery rule tolling); Baker v. Hendrix, 126 W.Va. 37, 27 S.E.2d 275 (1943). Inasmuch as discovery of such an object not only identifies the source of the injury, but also virtually establishes malpractice res ipsa loquitur, the Kubrick issue did not arise in those cases.
. Without citation to authority, appellants assert that Exxon’s counterclaim on the promissory note should have been held in abeyance pending resolution of appellants’ claims "by a jury.” Of course, the district court had disposed of appellants’ claims on summary judgment when it ruled in Exxon’s favor on the note, and the premise of their argument is rendered nugatory by our affirmance. Moreover, the Childers proffer no defense to collection of the note.
Question: What is the general category of issues discussed in the opinion of the court?
A. criminal and prisoner petitions
B. civil - government
C. diversity of citizenship
D. civil - private
E. other, not applicable
F. not ascertained
Answer:
|
songer_genresp1
|
C
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed respondent.
UNITED STATES of America v. Morris W. VAUGHN, Appellant.
No. 24084.
United States Court of Appeals, District of Columbia Circuit.
Argued April 23, 1971.
Decided May 25, 1971.
Mr. Robert W. Healy, Washington, D. C., with whom Mr. James A. Koerner, Washington, D. C. (both appointed' by this court), was on the brief, for appellant.
Mr. Michael J. Madigan, Asst. U. S. Atty., with whom Messrs. Thomas A. Flannery, U. S. Atty., and John A. Terry, Asst. U. S. Atty., were on the brief, for appellee.
Before McGOWAN and TAMM, Circuit Judges, and DAVIES, United States District Judge for the District of North Dakota.
Sitting by designation pursuant to Title 28, U.S.Code, Section 292(e).
PER CURIAM:
In this appeal from a conviction under 18 U.S.C. § 751(a), the so called federal escape law, the only question raised is that of whether that statute is applicable. Appellant, while awaiting trial for robbery, was by order of the court permitted to participate in the work release program. This meant that he was released from the D.C. Jail for a few hours each day for the purpose of working for a private employer. Failing to return to the jail one day, appellant was apprehended two months later on another charge of robbery.
Appellant argues that, at the time he failed to return to the jail, he was not in the custody of the Attorney General within the meaning of Section 751(a). He points out that his participation in the work release program was under the authority of the Bail Reform Act, 18 U.S.C. § 3146(a) (5), which provides that the court may grant pretrial release upon conditions, “[ijncluding a condition requiring that a person return to custody after specified hours.” (Emphasis supplied.) Appellant further insists that, since the Bail Reform Act has its own penal provisions, 18 U.S.C. § 3150, Congress is to be taken as intending those to be, apart from contempt, the exclusive source of sanctions for vio-, lating a conditional release under that statute.
We are not persuaded of the validity of these contentions, either alone or in combination. The Congressional response in 1965 to a decision holding that an escape from a halfway house was not covered by Section 751(a) is very significant for present purposes. In order to nullify the ruling in United States v. Person, 223 F.Supp. 982 (S.D.Cal.1963), Congress amended 18 U.S.C. § 4082 to provide as follows:
The. willful failure of a prisoner to remain within the extended limits of his confinement, or to return within the time prescribed to an institution or facility designated by the Attorney General, shall be deemed an escape from the custody of the Attorney General punishable as provided in [Section 751(a)].
The penal provisions of the Bail Reform Act are couched in terms of a default in appearances “before any court or judicial officer as required.” Appellant’s defection was not of that nature. What he did appears to us to be plainly within the contemplation of Section 751(a) which, as its legislative history makes clear, applies to pretrial, as well as postconviction, custody. See H.R. Rep. No. 1014, 88th Cong. 1st Sess. 1 (1963), U.S.Code Cong. & Admin.News 1963, p. 1381; and United States v. Barber, 300 F.Supp. 771 (D.Del.1969).
Affirmed.
. Tlio statute provides in pertinent part as follows:
Whoever escapes or attempts to escape from the custody of the Attorney General or his authorized representative, or from any institution or facility in which he is confined by direction of the Attorney General, or from any custody under or by virtue of any process issued under the laws of the United States by any court, judge, or commissioner " * * shall, if the custody or confinement is by virtue of an arrest on a charge of felony, or conviction of any offense, be fined not more than $5,000 or imprisoned not more than five years, or both; * * *.
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_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.
UNITED STATES of America v. Walter E. ASHE, Appellant. UNITED STATES of America v. Walter E. ASHE, Appellant.
Nos. 71-1033, 71-1509.
United States Court of Appeals, District of Columbia Circuit.
Argued April 12, 1972.
Decided March 26, 1973.
Michael Nussbaum, Washington, D. C. (appointed by this Court) for appellant. James P. Davenport, Washington, D. C., also entered an appearance for appellant, in No. 71-1033.
Herbert M. Silverberg, Washington, D. C. (appointed by this court) for appellant in No. 71-1509.
Guy H. Cunningham, III, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty. and John A. Terry, Asst. U. S. Atty., were on the brief, for appellee. John D. Aldock, Asst. U. S. Atty., at the time the record was filed, also entered an appearance for appellee.
Before LEVENTHAL, ROBINSON and ROBB, Circuit Judges.
LEVENTHAL, Circuit Judge:
This is the third time that we have been asked to review some phase of the Government’s case against Walter Ashe. In this latest chapter of the proceedings, Ashe was found not guilty by reason of insanity of a violation of 22 D.C. Code § 2801, carnal knowledge of a female child under sixteen years of age. In 71-1033, Ashe appeals the finding of guilt of the commission of the act, which is implicit in an acquittal by reason of insanity. In 71-1509, he appeals from the determination, following a Bolton hearing for his continued custody on the basis of dangerousness because of mental illness.
I.
The indictment charges that on October 14, 1967, Walter Ashe had sexual relations with his daughter Mary, then age ten. The Government’s evidence consisted of the testimony of Mary Ashe; the corroborative evidence of Mary’s then eight or nine year old brother Walter, Jr. and of their mother Mrs. Ashe, both of whom were witnesses to the incident; the testimony of Thomas Ashe, a still-younger brother, who was not a witness to the event itself; and the expert testimony of a pediatrician who examined Mary after the incident. On May 9, 1968, Ashe was brought to trial. Mrs. Ashe invoked her marital privilege. Mary and Walter, Jr. were questioned in order to judge their competency to give evidence. Walter, Jr.’s responses were unclear, and he eventually became unresponsive. At length, defense moved for a mistrial in order that a more thorough examination of Ashe’s capacity to stand trial be undertaken. This motion was granted by District Judge Smith.
Ashe was determined fit to stand trial and on October 2, 1968, a second trial was begun before District Judge Green. At this trial, the Government rested its case substantially upon the evidence of Mary and Walter, Jr. Mary’s testimony was elicited only with the greatest of difficulty. The first time she took the stand, she did not give damaging testimony. She was excused and later recalled and eventually, after she refreshed her recollection by reading over the statement she had made to the police, her testimony did establish a corpus delicti. The Government sought corroboration from Walter, Jr.; the child’s response to the questions he was asked were badly garbled and generally difficult to understand. Walter, Jr. did not seem able to place himself at a particular place at a particular time, and his testimony taken as a whole did not specifically corroborate the incident charged in the indictment.
The District Court, sum sponte and over the objection of Ashe, raised the question of insanity, and Dr. Mauris Platkin, a St. Elizabeths psychiatrist, testified that Ashe had a personality structure which was not inconsistent with committing deviant sexual acts. (Tr. p. 544: “. . . it is not at all improbable that he could have committed this kind of act. It certainly relates to this condition.”) The jury found Ashe guilty, rejecting the insanity issue. Appeal was taken to this court, and on May 12, 1970, we vacated the conviction and remanded. United States v. Ashe, 138 U.S.App.D.C. 356, 427 F.2d 626 (1970). We noted that the Government’s case on corroboration was very thin, and that the real corroboration had come from Dr. Platkin. This we held to be unduly prejudicial. “[T]he judge interposing an insanity defense did have the obligation to establish bifurcated trial or some other protective procedure to avoid prejudice to the defendant from the court’s insistence of airing a defense interposed contrary to the defendant’s will.”
On August 20, 1970, the Government began civil commitment proceedings against Ashe under 21 D.C.Code § 541 et seq., but the Commission on Mental Health found that Ashe was not dangerous because of mental illness.
A third trial was consequently begun on November 30, 1970. The proceedings were bifurcated, ánd the Government’s case developed much more smoothly than it had in the trial of October, 1968. Mary Ashe’s testimony was direct and to the point, Walter, Jr. coherently corroborated her story, and Thomas Ashe also gave evidence which was generally corroborative as well. After hearing the evidence, the jury brought in a verdict of guilty, whereupon the second stage of the trial — dealing with the insanity issue — was begun. Only one witness was presented, Dr. Robert Robertson of St. Elizabeths. After Dr. Robertson was heard, the jury retired and quickly brought back a verdict of not guilty by reason of insanity. Ashe was committed to St. Elizabeths for observation, and on February 16, 1971, a Bolton hearing was begun before Judge Green, testing the question of whether continued retention in custody should be ordered due to Ashe’s dangerousness because of mental illness. The Bolton jury found, after hearing almost a dozen witnesses, that Ashe was dangerous due to his mental illness. Judge Green thereupon remanded him to the custody of St. Elizabeths until such time as he was no longer dangerous.
Ashe petitioned for habeas corpus, claiming that his detention for observation at St. Elizabeths was longer than that authorized by Judge Green and that he had not been accorded treatment nor the “least-restrictive alternative” in his disposition. This petition was summarily dismissed by the District Court. We vacated the dismissal in Ashe v. Robinson, 146 U.S.App.D.C. 220, 450 F.2d 681 (1971), and remanded for further proceedings. Nothing has been done about this remand to date, and counsel informed us at oral argument that no further action in that matter is contemplated.
II.
The Notice of Appeal in 71-1033 was somewhat ambiguous as to what decision was being appealed from. The Government argues that this appeal is evidently from the interlocutory finding of “guilty” by the jury, but that a “guilty” verdict in a bifurcated proceeding, if followed by a verdict of not guilty by reason of insanity, is not a “final decision” within the meaning of the rule that permits appeals only from such decisions. The Government further argues that Ashe failed to file his notice of appeal within the ten-day period of Rule 4(b), Federal Rules of Appellate Procedure. The appeal was noted 13 days after the insanity verdict of the jury and several months prior to the Bolton hearing.
We disagree with the Government’s contention. We conclude that we have jurisdiction to hear the appeal, and to consider both the sufficiency of the Government’s case underlying the implicit finding of guilt and the validity of the detention order. We need not determine whether a bare verdict of not guilty by reason of insanity is “freighted with sufficiently substantial indicia of finality to support an appeal” see Corey v. United States, 375 U.S. 169, 84 S.Ct. 298, 11 L.Ed.2d 229 (1963); United States v. Fort, 133 U.S.App.D.C. 155, 409 F.2d 441 (1969). Certainly the court ordered Ashe’s commitment for examination based solely on the jury verdict, and this culminated in an order for continuation of commitment following a Bolton hearing. Since we have consolidated the appeal from the verdict of not guilty by reason of insanity, and the appeal 71-1509, from the order of continued commitment, we do not have to decide the technical question as to whether our consideration of the question presented derives from one appeal, or the other, or both.
III.
Appellant contends that Walter Ashe, Jr. was not a competent witness. For support, appellant cites Walter, Jr.’s performance at the voir dire before Judge Smith in the mistrial and his testimony, upon which we commented in Ashe-I, at the trial before Judge Green in 1968. In both of these instances, Walter — in startling contrast to his performance at the third trial — was almost an unreachable witness. Although it is difficult to isolate any determinative single reason therefor, it is reasonably plain that poor language skills, together with the intimidation of the courtroom and the obvious painfulness of the subject — which precipitated the dissolution of the Ashe family and the childrens’ dispersion into Junior Village and various foster homes —worked a severe inhibition on the child.
Counsel submits that our first opinion, Ashe-I, in effect held that Walter, Jr. was not competent to testify, or that at least his testimony was non-corroborative. If it was non-corroborative, then of course the Government’s proof in Ashe-I failed for want of the corroboration we require in proof of sex offenses. And if, in turn, the Government’s proof failed in Ashe-I, then the rule in our circuit is clear that another trial cannot be brought.
The Government’s response to this chain of reasoning is that even if there had been no corroboration, there was still ample evidence to convict Ashe of simple assault. We do not need to pass upon this response. We believe that Walter, Jr.’s testimony in Ashe-I was sufficient to meet the corroboration requirement. That rule must be applied in light of its purpose, to prevent fabrication of easily-fabricated crimes, and not to interpose a technical barrier that rejects a substantial showing of guilt. We attribute most of the deficiencies of Walter, Jr.’s testimony in Ashe-I to inferior language skills and emotional turmoil which have since substantially abated. The transcript from Ashe-11 certainly suggests a child functioning well within the limits of intellectual normality. We are sensitive to the point that Walter, Jr.'s testimony in Ashe-1 was weak and garbled, but we attribute the weakness to interference factors rather than to any fundamental inability to observe with accuracy. A family where a father is having indecent or incestuous traffic with his children is surely a family in turmoil. In addition to the ordinary and normal testimonial inadequacies which are a part of immaturity, the children of such families are likely to exhibit all sorts of emotional abnormalities which may often prevent their effective communication, especially in a context as intimidating as g crowded, unfamiliar courtroom. Unless we want in effect to wipe the enforcement of the carnal knowledge statute out of the incest situation, we must be prepared to accept evidence from some seriously mixed-up young witnesses, and to be flexible in assessing their competency and evidentiary sufficiency.
Our opinion in Ashe-I recognized that the Government’s case was thin, but we did not hold it legally insufficient. The thin Government evidence meant that the error of permitting Dr. Platkin’s testimony in evidence, without protecting precautions such as bifurcation having first being taken, could not be harmless. We are satisfied that the retrial cured this prejudice. The record in Ashe-I indicates that the competency determination was made in open court outside the presence of the jury. The transcript shows that the defendant was present, as is his right under the Sixth Amendment. The procedure was sound. The jury’s finding of guilt, which is a part of its total determination of not guilty by reason of insanity, is not infected by legal insufficiency or error, and will not be disturbed.
IV.
We now address the issues raised in 71-1509, which attacks certain aspects of the Bolton hearing. At the end of that hearing, the jury found that Ashe was dangerous because of mental illness and Judge Green thereupon ordered his commitment.
A. Appellant claims that the jury voir dire was not adequate for purposes of discovering whether there were some prospective jurors who, knowing that Ashe had recently been found to have committed a felonious sex crime and had been declared insane, might be prejudiced on the question of whether Ashe was now “dangerous as a result of mental illness.” Counsel submitte'd twelve questions, which are set out in footnote 2. The questions Judge Green asked were these (Tr. pp. 27, 28) :
1. Are there any of you who feel any sort of prejudice toward people who have been confined in jail, mental hospitals, Saint Elizabeths, or would this be such that it would prevent your reaching a fair decision in this case?
2. Do any of you feel that the conviction of a crime, committing an act of sex with one’s own daughter, would necessarily make one committable to a mental hospital ?
3. Do any of the members of the panel have any employment or patients or anyone in their family who has ever been employed at Saint Eliza-beths Hospital or been a patient there ?
4. Does any member of the panel have anyone in their family or have ever themselves suffered from any mental disease or defect?
5. Are there any reasons at all why any member of the panel would prefer not to sit on a case of this kind ?
Seven of the prospective jurors told the court of some misgiving they had, based on the questions asked, and six of these were, upon further questioning by the court, excused. While the questions probing the ability of the jurors to render a fair verdict might have been improved, we are satisfied that they did an adequate job of discovering possible prejudice. Certainly appellant cannot claim reversible error for the denial of the argumentative — and equally unfocused — questions requested by appellant.
B. Appellant also argues that the experts were improperly asked whether, in their opinion, Ashe was or would be dangerous. Ashe relies on our decision in Washington v. United States, 129 U.S.App.D.C. 29, 390 F.2d 444 (1967). As counsel succinctly put it at argument, “Expert witnesses should never be allowed to speak the magic words.”
There are different vectors of considerations that culminate in a psychiatrist’s resultant conclusion as to “dangerousness,” yea or nay. Some aspects are primarily determined by his expertise, and others by his value preferences in matters involving community values where the ultimate decisions must be made by the court and jury. The same may also be said of “mental illness” as a legal concept, for this is not controlled by the medical conception. Yet it has not been suggested that a psychiatrist may not speak, in parlance that is natural and understandable, of mental illness. The possibility of confusion must be obviated by attentive explanation, sorting out of factors, and cross-examination.
The issue of “dangerousness” is different from the issue of “productivity.” Washington held that experts called to testify on the issue of insanity must not speak in terms of productivity. Our concern was against oversteering of the jury on the ultimate decision of criminal responsibility, one that “intertwine[s] moral, legal and medical judgments,” King v. United States, 125 U.S.App.D.C. 318, 324, 372 F.2d 383, 389 (1967). The problem of “oversteering,” identified in Washington, is not avoided completely but it is substantially diluted here, in a Bolton hearing on the issue of dangerousness. As we pointed out in Brawner a critical reason for the Washington opinion was the lack of a generally accepted meaning for the “product” term. But we specifically held that the expert could testify on the causal relationship between mental disease and the existence of substantial capacity for control at the time of the act. And so in the case at bar, where there is no use of a term like “product” that has no accepted meaning, the expert can testify on the ultimate causal issue. The jury can be expected, with reasonable confidence, to assess the concept of “dangerousness” for itself and in such a way as to reflect community values.
In a Bolton hearing, the jury is aware that the witness is not making a scientific finding as to a past fact, but is making an estimate as to the future— the kind of judgment that doubtless reflects some margin of doubt yet is part of his clinical function. Of course the judge clearly charges it is the jury’s role to make the determination. Such steering by experts as exists is due not to words and misunderstandings as to the natural tendency to be respectful of the comments of those who have given special study to a subject. It would likely persist ‘to substantially equivalent degree if the expert were merely asked to give his conclusions as to the consequences he foresaw if the individual were released to the community. The substantive criterion for committability is fixed by the statute. It uses terms and concepts that are common parlance for both experts and laymen. The jury needs whatever help the experts can provide, and that should not be cramped by interdicting the use of these terms in the testimony.
On the other hand, the jury hearing a psychiatrist’s testimony of dangerousness, should be informed of its various components: to what extent it reflects a predicting of behavior (often palpably dangerous); whether it is prediction of an occurrence of a kind of behavior that, however deviant, might be considered by the jury to lie in the realm of the private, the eccentric, or the offensive, but not the dangerous. The expert must be prepared to state the bases for his conclusion and be aware that the attorney, seeking to expose the predicate of the expert’s conclusion is not necessarily challenging his expertise within its proper realm, but may properly be seeking to ask the jury to come to a different ultimate conclusion on the basis of the community-value factor involved. Following the lead of our Brawner opinion we hold that henceforth the Washington Appendix should be used in Bolton hearings, following adjustment for the difference in issues, should be sent to the experts in advance of hearing, and should be read at least once to the jury.
C. Appellant strongly contends that Dr. Reisen should have been qualified as an expert in psychiatry and allowed to testify as such. Dr. Reisen is a physician with several years of background — both practical and academic — in psychiatry. He is not a board-certified psychiatrist or neurologist, but of all the physicians who testified, Dr. Reisen knows Ashe best. At oral argument, we were advised that Dr. Reisen is in charge of the observation ward at St. Elizabeths, and is entrusted by the Hospital with considerable unsupervised responsibility. Based on what we glean from the record and what we heard at oral argument, we conclude Dr. Reisen could have qualified as an expert in psychiatry.
We do not however find reversible error, for these reasons: First, counsel at trial did not detail the extent of the responsibility which St. Elizabeths has entrusted to Dr. Reisen. More important, Dr. Reisen was permitted to testify as a physician and to express his opinion on Ashe’s probable future dangerousness. He was not allowed to testify directly on Ashe’s mental status. But other questions, intimately related to mental status, were allowed. Specifically, he was allowed to testify about how, in his opinion, Ashe would function in the community if released from the hospital. The thrust of that question operates, in effect, in the same way as a question put in terms of mental illness and dangerousness. The witness’s projection of the individual’s functioning, in the absence of commitment, necessarily embraces an appraisal of the individual’s mental and emotional capacities and behavioral controls.
Finally, Ashe’s counsel was able to present the testimony of Dr. Paul Weis-berg, who did qualify as a psychiatric expert, that appellant was not suffering from mental illness. Dr. Weisberg’s testimony on direct was clear and unequivocal, and the skillful cross-examination by the Assistant U.S. Attorney did little to dislodge or becloud any of that testimony. Dr.. Reisen’s greater familiarity and contacts with Ashe might have given his opinion more weight with the jury. But in a context where the judge was not advised of critical aspects of Dr. Reisen’s responsibility at St. Elizabeths, and permitted Dr. Reisen to give testimony concerning the functioning of Ashe if released, we do not think the interest of justice would be served by a finding of reversible error because he did not expressly corroborate Dr. Weis-berg’s testimony on the absence of present mental illness.
D. Appellant’s last major argument challenges the “preponderance of evidence” standard which the Bolton jury was charged it must use in its findings of mental illness and dangerousness. Our opinion in United States v. Brown is the contrary.
We have considered appellant’s other arguments and find them without merit.
Affirmed.
. Bolton v. Harris, 130 U.S.App.D.C. 1, 395 F.2d 642 (1968).
. Appellant’s proposed voir dire questions were:
1. The law controlling this case requires that a person be both mentally ill and likely to, injure himself or others before lie’s involuntarily confined in a mental institution.
2. Are there any of you who do not agree that there are many so called mentally ill or disturbed persons who are walking the streets, enjoying their liberty, and not harming anyone (including themselves) ?
3. Are there any of you who, after searching your feelings, feel any sort of prejudice towards people who have been confined in jail, mental hospitals — St. Elizabeths— which might render you unable to reach a fair decision in this case.
4. Are there any of you who do not agree that the burden is on the government to establish that the defendant is mentally ill and likely to injure himself and others, and the fact that he is in the courtroom today does not raise a presumption of either?
5. Are there any of you who feel that the conviction of a crime of incest, or committing an act of sex with one’s daughter, necessarily should make one committable to a mental hospital?
6. Do you jurors agree that the burden is on the government to establish in this case that as the result of a mental illness the defendant is likely to repeat the act of which he stands convicted, or commit some other dangerous act, in order to commit him to SEH?
7. Do you jurors agree that while psychiatrists may testify as to their opinion in this case, it is not binding on you and you may choose to disregard it, or weight it lightly, if your own experience and intuition and judgment lead you to another conclusion?
8. Do you jurors agree that patients at St. Elizabeths Hospital are not presumptively dangerous?
9. Do you jurors agree that mental patients — or people suffering from some mental disturbance — are not necessarily dangerous to society, or themselves, and should not necessarily be confined in mental institutions?
10. Do any of you have any mental illness in your family or among your close friends, which might prevent you from rendering a fair decision in this case?
11. Do any of you have policemen or law enforcement officers in your family?
12. Are there any reasons — perhaps reasons which you may find hard to articulate — which would make any of you uncomfortable in sitting on this kind of case and rendering a fair decision?
. J. Goldstein and J. Katz, Dangerousness and Mental Illness; Some Observations on the Decision to Release Persons Acquitted By Reason of Insanity, 70 Yale L.J. (1960) 225.
. United States v. Brawner, 153 U.S.App.D.C. 1, 471 F.2d 969 (1972, en banc).
. See opinion at p. 38, 471 F.2d at p. 1006: “It is the responsibility of all concerned — expert, counsel and judge — to see to it that the jury in an insanity case is informed of the expert’s underlying reasons and approach, and. is not confronted with ultimate opinions on a take-it-or-leave-it basis. The Appendix to Washington is useful in this regard— assuming appropriate modification.
. 155 U.S.App.D.C.—, 478 F.2d 606 (1973).
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_origin
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C
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What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of court which made the original decision. Code cases removed from a state court as originating in federal district court. For "State court", include habeas corpus petitions after conviction in state court and petitions from courts of territories other than the U.S. District Courts. For "Special DC court", include courts other than the US District Court for DC. For "Other", include courts such as the Tax Court and a court martial.
UNITED STATES of America, Appellant, v. Genevieve E. FRANKEL, Executrix of the Estate of Samuel F. Frankel, Deceased, and Genevieve E. Frankel, Appellees.
No. 16809.
United States Court of Appeals Eighth Circuit.
May 4, 1962.
Daniel K. Mayers, Atty., Dept, of Justice, Washington, D. C., made argument for appellant and was on the brief. Louis F. Oberdorfer, Asst. Atty. Gen., John R. Jones, Jr., Lee A. Jackson, Attys., Dept, of Justice, Washington, D. C., and Miles W. Lord, U. S. Atty., Minneapolis, Minn., were with him on the brief.
C. Stanley McMahon, for Brehmer & McMahon, Winona, Minn., made argument for appellee and was on the brief.
Before SANBORN and MATTHES, Circuit Judges, and GRAVEN, District Judge.
SANBORN, Circuit Judge.
This is an appeal by the Government from a judgment for Genevieve E. Frankel in an action brought by her for the refund of income taxes which she paid for the year 1956. The action is based upon the claim that in her income tax return for that year there had erroneously been included in her gross income nontaxable gifts.
Genevieve E. Frankel is the widow of Samuel F. Frankel, who died February 22, 1956, and the executrix of his estate. Her husband had been employed by the Badger Foundry Company (a corporation), of Winona, Minnesota, for approximately forty years. At the time of his death he was its secretary and treasurer and responsible for sales.
On March 15, 1956, the Board of Directors of the Badger company adopted the following resolution:
“It was moved by W. W. Meyst and seconded by O. H. Williams and carried, that in appreciation of the years of faithful and devoted service to the Badger Foundry Company by S. F. Frankel that the Management be authorized to pay Mrs. S. F. Frankel the bonus earned in the first quarter of operations of the Company by S. F. Frankel at the rate set at the Directors’ Meeting of January 31, 1956, and to continue to pay Mrs. S. F. Frankel the monthly salary that would have been earned by Mr. Frankel for the balance of the calendar year of 1956.”
The bonus and the salary which Mr. Frankel would have received in 1956 for the remainder of the year 1956, had he lived, amounted to $17,135.15 (bonus $4,-635.15, salary $12,500). That amount was paid to Mrs. Frankel during 1956. On April 16,1956, another resolution was adopted by the Board of the Badger company “that the 1955 Chrysler New Yorker automobile owned by the company be given to Mrs. S. F. Frankel as soon as transfer of title can be arranged.” This car, which had a value of $2,300, was transferred to her in 1956, pursuant to the resolution.
The Badger company in its corporate income tax return for 1956 took a deduction, under “Compensation of Officers,” of $21,511.15, representing the salary payments in 1956 to Mr. S. F. Frankel prior to his death, the salary continuation payments made to Mrs. Frankel after his death, the bonus payment made to Mrs. Frankel, and the Company’s basis in the car given to her.
The Company had never, upon the death of an employee, made any transfers similar to those made to Mrs. Frankel, and during the previous twenty-five years there had been no death of any corporate officer.
There was no contract between the Badger company and Mr. Frankel or between it and Mrs. Frankel to make any of the payments which were made to her in 1956 after his death. There was no legal obligation on the part of the Company to make any of the transfers of money or property to her in 1956. She had performed no services for the Company in 1956 or previously and had never been a stockholder, an officer or an employee of the Company. The transfers in suit were made directly to Mrs. Frankel personally, and not to the estate of her husband.
In her 1956 income tax return Mrs. Frankel included in her gross income all but $2,000 of the total gratuities which she received from the Company, and paid her tax. On April 20, 1959, she filed a claim for refund in the amount of $3,239.-50, the amount of tax paid which was attributable to the inclusion of the gratuities in gross income. Her claim for refund was disallowed. She brought this action to obtain the refund, alleging, in effect, that the gratuities she received from the Company in 1956 were nontaxable gifts, excludable from gross income under Section 102(a) of the Internal Revenue Code of 1954, 26 U.S.C.1958 ed. § 102(a).
The "case was tried by the District Court without a jury. The facts were stipulated. The trial court determined that the gratuities received by the taxpayer from the Company in 1956, subsequent to the death of her husband, were “gifts” and were not includable in her gross income. Judgment was entered in her favor for $3,239.50. It is conceded that that was the amount due her if the transfers were “gifts” as the trial court found. The memorandum opinion of the District Court is reported in 192 F.Supp. 776. That court also ruled that Section 101(b) of the Internal Revenue Code of 1954 does not limit to $5,000 the amount excludable on payments such as those here involved. That ruling is not challenged on this appeal. We are concerned only with the question whether the trial court erred in holding that the gratuities were excludable from gross income as “gifts.”
The Government challenges the adequacy of the trial court’s findings to support its determination that what the taxpayer received from the Company were “gifts.” The Government says that the findings “were not pertinent to the-determinative issue of the objective motivation of the transferor—i. e., why the-payments were made,” and that “[t]he decision of the lower court should be vacated, and the case remanded for the purpose of obtaining meaningful findings of fact on the relevant question in this case.”' The Government also contends that if it. be assumed that the trial court’s findings were pertinent, “[tjhere was no evidence-in the record to support a conclusion that, the corporate directors transferred corporate assets to the taxpayer because of' their personal affection and sympathy for her.”
The trial court found, among other things:
“X.
“That the payment by Badger-Foundry Company to plaintiff of the-money and property above referred' to was not intended to be, and was. not, made in consideration of or as. additional compensation for any services rendered to it by Samuel F.. Frankel. Said sums were not paid pursuant to any obligation of any kind or nature, express or implied, owed by Badger Foundry Company to Samuel F. Frankel, to his estate, or to Genevieve E. Frankel, plaintiff herein, and no consideration was-given for or on account of said payments.
“XI.
“That the payments made by Badger Foundry Company to the plaintiff herein were benevolent acts and were intended to be and were made as expressions of sympathy, generosity and kindness to the widow of a deceased officer and employe.”
The court’s conclusions were stated as follows:
“The payments of the aforesaid sums by Badger Foundry Company to Genevieve E. Frankel, the plaintiff herein, were intended to be and were gifts to her by Badger Foundry Company within the meaning of the provisions of Section 102(a) of the 1954 Internal Revenue Code. 26 U.S.C. Section 102(a). The amount of such gifts was not includable in gross income and was not subject to the limitation of the §5,000.00 exclusion provided in Section 101(b) of the 1954 Internal Revenue Code. 26 U.S.C., Section 101(b).
“II.
“That for the calendar year 1956 defendant erroneously assessed and collected from plaintiff the sum of $3,239.50.
“HI.
“That defendant owes plaintiff the sum of $3,239.50 with interest at the rate of six percent (6%) per annum from and after April 15, 1957.”
Whether more explicit or more meaningful findings and conclusions could have been drawn, we need not decide. It seems obvious that the trial court determined that, under the stipulated facts, the gratuities that the taxpayer received from the Company after her husband’s death qualified as nontaxable gifts under § 102(a) of the 1954 Internal Revenue Code.
The Government relies heavily upon what it conceives to be the teachings of the opinion in Commissioner v. Duberstein, 363 U.S. 278, 80 S.Ct. 1190, 4 L.Ed.2d 1218.
We think that the opinion in that case does not require that the instant case be remanded for more “meaningful findings.” The opinion in Duberstein covered two separate cases. One involved a present of a Cadillac car by Mohawk Metal Corporation, through its president Berman, to Duberstein out of gratitude or m recompense for business favors. The Tax Court decided that the Cadillac was not a “gift.” On petition to review, the Sixth Circuit (Duberstein v. Commissioner, 265 F.2d 28) reversed the Tax Court, holding that its decision was wrong. The Supreme Court disagreed with the Court of Appeals, ruling that the finding of the Tax Court was not clearly erroneous. (Page 291 of 363 U.S., page 1190 of 80 S.Ct.) The other case (Stanton v. United States, 363 U.S. 278, 281, 80 S.Ct. 1190, 4 L.Ed.2d 1218) involved a present of $20,000 by the Trinity Operating Company, Incorporated, to Stanton, who had been for approximately ten years in the employ of Trinity Church in New York City. He was comptroller of the Church corporation and president of the Operating Company. He had resigned from those positions to enter business for himself. The board of directors of the Operating Company, “in appreciation of the services rendered by Mr. Stanton,” awarded him a gratuity of $20,000 upon his departure from its employ. The Commissioner determined that the $20,-000 gratuity was taxable income. In a suit to obtain a refund of the tax paid as a result of including in gross income the $20,000 gratuity, the District Court held it was a “gift.” The findings of fact and conclusions, made orally, were:
“The resolution of the Board of Directors of the Trinity Operating Cotn^any, Incorporated, held November 19, 1942, after the resignations had been accepted of the plaintiff from his positions as controller of the corporation of the Trinity Church, and the president of the Trinity Operating Company, Incorporated, whereby a gratuity was voted to the plaintiff, Allen [sic] D. Stanton, in the amount of $20,000 payable to him in monthly installments of $2,000 each, commencing with the month of December, 1942, constituted a gift to the taxpayer, and therefore need not have been reported by him as income for the taxable years 1942, or 1943.”
The Court of Appeals for the Second Circuit reversed the judgment. Stanton v. United States, 268 F.2d 727. The question of the adequacy of the findings and conclusions of the trial court was not referred to by the Court of Appeals in its opinion. Apparently the only issue tried in the District Court in Stanton’s case was whether the gratuity received by him was excludable from gross income as a “gift,” and apparently, also, that issue was resolved in favor of the taxpayer. The Supreme Court granted certiorari. Five of the justices of the Supreme Court were of the view that the judgment in the Stanton case should be vacated and the case remanded to the District Court for further proceedings “looking toward new and adequate findings of fact.” (Page 293 of 363 U.S., page 1201 of 80 S.Ct.)
In the instant case it seems to us that the trial judge has made it plain by his opinion, findings and conclusions that he had determined that, under the stipulated facts, and under the standards established by Bogardus v. Commissioner, 302 U.S. 34, 43, 58 S.Ct. 61, 82 L.Ed. 32, and in conformity with Commissioner v. Duberstein, supra, [Stanton v. United States] (363 U.S. 278, 80 S.Ct. 1190, 4 L.Ed.2d 1218), the taxpayer’s return for 1956 included as taxable income nontaxable gifts made to her out of a spirit of sympathy and generosity.
We believe that to remand this case for more “meaningful” findings as to motivation and intent would serve no useful purpose and would merely prolong this controversy. See and compare, United States v. Kasynski, 10 Cir., 284 F.2d 143, 146, in which the same question as to adequacy of the trial court’s findings was raised. As we read the opinion in Duberstein (363 U.S. 278, 80 S.Ct. 1190), it does not change the criterion laid down in Bogardus v. Commissioner (302 U.S. 34, 43, 58 S.Ct. 61) for determining what are “gifts” within the meaning of the applicable statute. But see, Poyner et al., Executors of Estate of Pierpont v. Commissioner, 4 Cir., 301 F.2d 287 decided March 21, 1962.
We note that Mr. Justice Frankfurter, in his opinion concurring in Duberstein and dissenting in Stanton, said (pages 296-297 of 363 U.S., pages 1202, 1203 of 80 S.Ct.):
“The Court has made only one authoritative addition to the previous course of our decisions. Recognizing Bogardus v. Commissioner, 302 U.S. 34 [, 58 S.Ct. 61], as ‘the leading case here’ and finding essential accord between the Court’s opinion and the dissent in that case, the Court has drawn from the dissent in Bogardus for infusion into what will now be a controlling qualification, recognition that it is ‘for the triers of the facts to seek among competing aims or motives the ones that dominated conduct.’ 302 U.S. 34, 45 [, 58 S.Ct. 61, 66] (dissenting opinion) . All this being so in view of the Court, it seems to me desirable not to try to improve what has ‘already been spelled out’ in the opinions of this Court but to leave to the lower courts the application of old phrases rather than to float new ones and thereby inevitably produce a new volume of exegesis on the new phrases.”
To our minds, the findings and conclusions of the trial court are adequate. We think the factual basis for them, although stipulated, was not inadequate and was sufficient to sustain the judgment. Cf. Poyner et al., Executors of Estate of Pierpont v. Commissioner, supra; Joshel v. Commissioner, 10 Cir., 296 F.2d 645, 647; Estate of Kuntz v. Commissioner, 6 Cir., 300 F.2d 849, decided April 4, 1962.
In Commissioner v. Duberstein, the Supreme Court said (page 289 of 363 U.S., page 1198 of 80 S.Ct.):
“ * * * Decision of the issue presented in these cases must be based ultimately on the application of the fact-finding tribunal’s experience with the mainsprings of human conduct to the totality of the facts of each case. The nontechnical nature of the statutory standard, the close relationship of it to the data of practical human experience, and the multiplicity of relevant factual elements, with their various combinations, creating the necessity of ascribing the proper force to each, confirm us in our conclusion that primary weight in this area must be given to the conclusions of the trier of fact. Baker v. Texas & Pacific R. Co., 359 U.S. 227 [, 79 S.Ct. 664, 3 L.Ed.2d 756]; Commissioner v. Heininger, 320 U.S. 467, 475 [, 64 S.Ct. 249, 254, 88 L.Ed. 171]; United States v. Yellow Cab Co., 338 U.S. 338, 341 [, 70 S.Ct. 177, 179, 94 L.Ed. 150]; Bogardus v. Commissioner, supra [302 U.S. 34] at 45 [, 58 S.Ct. at page 66] (dissenting opinion).”
We are satisfied that in the present case the trial judge, whose long “experience with the mainsprings of human conduct” we regard as unsurpassed, did not misconceive or misapply the applicable law in this case to the facts before him.
The history of the Commissioner’s past attempts to have gratuities paid to widows of deceased employees made includable in gross income is of no help to the Government, and need not be discussed in this opinion.
The judgment appealed from is affirmed.
. Taxpayer excluded $2,000 under § 101 (b) of the Internal Revenue Code of 1954, 26 U.S.C.A. § 101(b).
. Ҥ 102. Gifts and inheritances.
“(a) General rule.-—Gross income does not include the value of property acquired by gift, * *
Question: What type of court made the original decision?
A. Federal district court (single judge)
B. 3 judge district court
C. State court
D. Bankruptcy court, referee in bankruptcy, special master
E. Federal magistrate
F. Federal administrative agency
G. Special DC court
H. Other
I. Not ascertained
Answer:
|
songer_circuit
|
D
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case.
UNITED STATES of America, Appellee, v. James G. MALLAS; Robert V. Jones, Jr., Appellants. (Two Cases)
Nos. 84-5085(L), 84-5258.
United States Court of Appeals, Fourth Circuit.
Argued Feb. 6, 1985.
Decided May 20, 1985.
See also 4 Cir., 696 F.2d 1069.
R. Stan Mortenson, Washington, D.C. (Jonathan B. Sallet, Miller, Cassidy, Larroca & Lewin, Washington, D.C., on brief), for appellants.
Deborah Wright Dawson, Dept, of Justice, Tax Division, Washington, D.C. (Glenn L. Archer, Jr., .Asst. Atty. Gen., Washington, D.C., Charles R. Brewer, U.S. Atty., Asheville, N.C., Michael L. Paup, Robert E. Lindsay, Dept, of Justice, Tax Division, Washington, D.C., on brief), for appellee.
Before SPROUSE and WILKINSON, Circuit Judges, and HAYNSWORTH, Senior Circuit Judge.
WILKINSON, Circuit Judge:
Defendants appeal from their convictions for evasion of federal income taxes. We find that their contested business practices raise novel questions of tax liability to which governing law offers no clear guidance. Because the defendants therefore could not have ascertained the legal standards applicable to their conduct, criminal proceedings may not be used to define and punish an alleged failure to conform to those standards. We reverse the convictions.
I
James G. Mallas and Robert V. Jones, Jr., investment counselors in Charlotte, North Carolina, began in 1977 to design a tax shelter program based on deductions allowed to participants in coal-mining enterprises. Mallas, as sole shareholder, formed Genesis Leases, Inc., for the corporate purpose of locating and purchasing leases of coal property in Kentucky. Jones, as sole shareholder, formed Trinity Properties, Inc., which would sublease the coal rights from Genesis for $3.40 per extracted ton. Trinity would then re-sublease its rights to individual investors for $3.50 per extracted ton. These investors would contract to pay Trinity an advance minimum royalty during each year for the four-year lease period. In return, Trinity warranted that economically recoverable coal in the leased property was sufficient to permit the investor to recoup his advance minimum royalties; if the coal reserves proved to be inadequate, Trinity promised to supplement the lease with other property that would allow for complete recoupment. Finally, Mallas, as sole shareholder, formed Omega Energy, Inc., to purchase from the individual investors, for specified royalties, their rights to mine coal. Omega would then mine and market the coal, either by itself or by subcontract.
Omega Energy also served an important purpose in the financial structure of Mallas and Jones’s tax shelter program. The investor, who was obligated to pay Trinity an individually negotiated advance minimum royalty, had to pay at least 2/7 of that amount from personal funds. The investor could then, if he wished, borrow the remaining 5/7 from Omega in exchange for a non-recourse promissory note secured by the investor’s subleased mineral rights. As Omega mined and sold each ton of coal, it would retire the non-recourse note by retaining half of the royalty that it owed the investor. Omega financed these loans by borrowing Trinity funds that had been accumulated from the investors’ initial personal payments. Through such loans by Trinity to Omega and by Omega to the investors, Omega was able to fund 5/7 of every electing investor’s obligation to Trinity without an outside source of funding.
According to its promoters, the MallasJones program offered significant tax savings to prospective investors. Under Treasury Regulation § 1.612-3(b)(3), the advance minimum royalty was deductible at the taxpayer’s option either when the royalty was paid or when the coal was mined and sold. For a deduction taken at payment, an investor who had received an Omega loan for 5/7 of the royalty obligation would receive $3.50 of deduction for every $1.00 invested. This opportunity attracted fifty-three investors to the leasing venture in 1977, and Mallas and Jones created a parallel 1978 program with eighty-nine investors.
According to the government, however, the annual minimum royalties were not deductible and the entire shelter was an illegal scheme to evade federal income taxes. The government raised two specific objections to the program. First, it maintained that Treasury Regulation § 1.612-3(b)(3) authorized deductions only if Trinity, at the beginning of each lease, committed to that leasing investor enough coal property to recoup all of the annual advance minimum royalties due over the full four years of the lease. Trinity, which did not own that much coal, asserted to the contrary that the regulation required it to have sufficient coal to permit recoupment of the minimum royalty payments only at the time that each obligation became due. Under this interpretation, Trinity’s holdings were satisfactory. Second, the government reasoned that the advance minimum royalties were not deductible because — upon close analysis of the loan network connecting Trinity, Omega, and the investors — the royalties had not been paid in “cash or its equivalent” as required by Helvering v. Price, 309 U.S. 409, 413, 60 S.Ct. 673, 675, 84 L.Ed. 836 (1940), and constituted an economic transaction in form but not in substance.
With these alternative government theories cast into criminal charges, a grand jury in the western district of North Carolina indicted Mallas and Jones on thirty-five counts for violations related to the alleged tax evasion. The two men stood trial in January 1984 and were each convicted on fourteen counts: one count of conspiracy to defraud the United States by defeating the lawful functions of the Internal Revenue Service, 18 U.S.C. § 371; two counts of willfully claiming false deductions on their 1977 and 1978 tax returns for their own participation in the coal-leasing programs, 26 U.S.C. § 7206(1); ten counts of aiding others in the filing of false returns based on those persons’ investments in the program, 26 U.S.C. § 7206(2); and one count of causing a person to travel interstate ■ in furtherance of a scheme to defraud, 18 U.S.C. § 2314. The court imposed prison sentences of twelve years on each defendant, fined Mallas $75,000 and Jones $40,000, and ordered them to pay the costs of prosecution and all taxes owed to the United States. This appeal followed.
II
We reverse. Grave penalties rest in this case on an unsubstantiated theory of tax law: that the defendants promoted fraudulent deductions if the Trinity coal holdings were not sufficient to warrant complete recoupment of all advance royalties at the beginning of the lease but were sufficient to warrant complete recoupment of all advanee royalties as each annual payment fell due. Whatever eventual success this proposition may enjoy as an interpretation of tax law — a destiny we do not influence here — present authority in support of the theory is far too tenuous and competing interpretations of the applicable law far too reasonable to justify these convictions.
“It is settled,” this court observed in the analagous criminal tax case of United States v. Critzer, “that where the law is vague or highly debatable, a defendant— actually or imputedly — lacks the requisite intent to violate it.” 498 F.2d 1160, 1162 (4th Cir.1974). Criminal prosecution for the violation of an unclear duty itself violates the clear constitutional duty of the government to warn citizens whether particular conduct is legal or illegal. See generally Note, Criminal Liability for Evasion of an Uncertain Tax, 81 Col.L.Rev. 1348 (1981). As Critzer indicates, this same requirement arises from the rule of 26 U.S.C. § 7206 that only a “willful” tax evasion is criminal. Willful conduct under § 7206, which the Supreme Court described in United States v. Pomponio as “voluntary intentional violation of a known duty,” 429 U.S. 10, 12, 97 S.Ct. 22, 23, 50 L.Ed.2d 12 (1976), requires that the duty involved must be knowable. See also James v. United States, 366 U.S. 213, 221-222, 81 S.Ct. 1052, 1056-1057, 6 L.Ed.2d 246 (1961).
Whether annual advance minimum royalties that are recoupable from warranted coal reserves acquired after execution of a lease but before payment of the royalty may be deducted from gross income is a point of law that is “vague or highly debatable” in the sense identified by United States v. Critzer, As the government concedes in its brief, the applicable Treasury regulation, § 1.612-3(b), “does not explicitly state that an AMRP is deductible in the year paid only if there are sufficient reserves committed in the first year of a lease such that the total amount of all the AMRP’s required under the lease can be recouped.” The regulation, which merely indicates that the royalties are to be “paid or accrued in connection with mineral property as a result of a minimum royalty provision,” does not address the issue. In the absence of explicit language in the regulation, potential liability might alternatively be announced by “authoritative constructions sufficiently illuminating the contours of an otherwise vague prohibition,” Dombrowski v. Pfister, 380 U.S. 479, 490-91, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965). But the government has failed to suggest any other regulation, judicial decision, or even revenue ruling that sheds such light on this aspect of § 1.612-3(b). Nor have we found any. The traditional sources of notice for potential defendants are simply silent — and hence ambiguous — on this subject.
We recognize that due process does not require the prosecution to cite a “litigated fact pattern directly on point,” United States v. Ingredient Technology Corp., 698 F.2d 88, 96 (2d Cir.1983), cert. denied, 462 U.S. 1131, 103 S.Ct. 3111, 77 L.Ed.2d 1366 (1983), quoting United States v. Brown, 555 F.2d 336, 339-340 (2d Cir.1977). We are accordingly open to the government’s suggestion that a duty not articulated by regulatory language or judicial construction may nonetheless be compelled by the authoritative force of common sense. But the prosecution and the defense can in this situation both offer plausible support for their positions. As the government argues, using the date of lease execution as the crucial moment for defendants’ reserves serves the policy of § 1.612-3(b) that coal leasing arrangements be a single, simple transaction, a goal otherwise expressed in the requirements that advance royalties be uniform, that they be due for every year, and that the taxpayer elect in the first year whether to deduct all royalties at the time of payment or at the time of the mineral sale. Contrary to the conclusion of the government, however, a determination that the prosecution theory of § 1.612-3(b) is “reasonable and well-supported” does not prove that “defendants’ claim that they could not have known what the law required is frivolous.” Defendants, too, advance a “reasonable and well-supported” reading of § 1.612-3(b). As they point out, using the date of payment as the crucial moment for defendants’ reserves permits greater sensitivity to the fluctuating coal market and follows the rule that the tax status of payments made under a long-term agreement is determined by conditions existing at the time of the deductible payment.
Nothing here is meant to imply that one of these solutions is not a better construction of tax law, or that civil liability — with appropriate civil penalties — may not be imposed on these defendants for deductions claimed without a foundation in sufficient coal reserves. Compare United States v. Dahlstrom, 713 F.2d 1423 (9th Cir.1983), cert. denied, — U.S.-, 104 S.Ct. 2363, 80 L.Ed.2d 835 (1984) with Zmuda v. Commissioner of Internal Revenue, 731 F.2d 1417 (9th Cir.1984) (criminal conviction vacated but civil liability imposed in connection with same tax shelter). We merely find that there has been no “fair warning ... given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed.” McBoyle v. United States, 283 U.S. 25, 27, 51 S.Ct. 340, 341, 75 L.Ed. 816 (1931) (Holmes, J.). The government may face a difficult task in translating the deductibility of annual advance minimum royalty payments into language that the common world will understand. But without that fair warning, the government may not institute criminal proceedings. As this court noted in United States v. Critzer, “the appropriate vehicle to decide this pioneering interpretation of tax liability is the civil procedure of administrative assessment,” not a criminal prosecution. 498 F.2d at 1164. We therefore reverse these judgments of conviction and remand the case for proceedings consistent with this opinion.
REVERSED.
. The investors did not personally participate in handling these loans. Each investor authorized Jones to negotiate through Trinity checks payable to the investor that were delivered to Jones by Omega. Trinity therefore wrote and delivered checks to Omega, which wrote checks to investors and delivered them to Trinity.
. Here, as throughout this opinion, we view the facts in the light most favorable to the government. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942). Defendants argued at trial that their coal holdings were adequate under the government’s theory.
. Because the jury considered alternate theories of liability, we must reverse the convictions if either theory is an improper basis for punishment. Chiarella v. United States, 445 U.S. 222, 237 n. 21, 100 S.Ct. 1108, 1119 n. 21, 63 L.Ed.2d 348 (1980); Leary v. United States, 395 U.S. 6, 31-32, 89 S.Ct. 1532, 1545-1546, 23 L.Ed.2d 57 (1969). We cannot conclude "with a high degree of probability" that the jury here did not rely on the unsupported theory of inadequate coal reserves. Cf. United States v. Alexander, 748 F.2d 185, 189 (4th Cir.1985). We therefore need not address appellants’ additional claim that the royalties were paid in “cash or its equivalent” in a substantial economic transaction or their claim that the jury charge failed to explain the “form versus substance” doctrine of Bridges v. Commissioner of Internal Revenue, 325 F.2d 180 (4th Cir.1963) with sufficient precision to sustain these convictions.
. The uncertainty of a tax law, like all questions of vagueness, is decided by the court as an issue of law. Critzer, 498 F.2d at 1162. To the extent that the Fifth Circuit has adopted a contrary approach in United States v. Garber, 607 F.2d 92 (5th Cir.1979) (en banc), we decline to follow that rule. See United States v. Ingredient Technology Corp., 698 F.2d 88, 96-97 (2d Cir.1983), cert. denied, 462 U.S. 1131, 103 S.Ct. 3111, 77 L.Ed.2d 1366 (1983).
. To the contrary, we note that the Ninth Circuit has described the coal reserve requirements of § 1.612-3(b) as unsettled during this period. Redhouse v. Commissioner of Internal Revenue, 728 F.2d 1249, 1252 (9th Cir.1984), citing Pomerance, Coal-Leasing Arrangements Offer Substantial Tax Shelter Benefits, 44 J. Tax’n 350 (1976).
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:
|
sc_respondent
|
029
|
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.
OKLAHOMA v. CASTLEBERRY et al.
No. 83-2126.
Argued March 20, 1985
Decided April 1, 1985
David W. Lee, Assistant Attorney General of Oklahoma, argued the cause for petitioner. With him on the briefs were Michael C. Turpén, Attorney General, and Hugh A. Manning, Assistant Attorney General.
Charles Foster Cox argued the cause and filed a brief for respondents.
Briefs of amici curiae urging reversal were filed for the State of California by John K. Van de Kamp, Attorney General, Robert R. Granucci, Assistant Attorney General, and Clifford K. Thompson, Jr., and Ronald E. Niver, Deputy Attorneys General; and 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.
Per Curiam.
The judgment is affirmed by an equally divided Court.
Justice Powell took no part in the decision of this case.
Question: Who is the respondent of the case?
001. attorney general of the United States, or his office
002. specified state board or department of education
003. city, town, township, village, or borough government or governmental unit
004. state commission, board, committee, or authority
005. county government or county governmental unit, except school district
006. court or judicial district
007. state department or agency
008. governmental employee or job applicant
009. female governmental employee or job applicant
010. minority governmental employee or job applicant
011. minority female governmental employee or job applicant
012. not listed among agencies in the first Administrative Action variable
013. retired or former governmental employee
014. U.S. House of Representatives
015. interstate compact
016. judge
017. state legislature, house, or committee
018. local governmental unit other than a county, city, town, township, village, or borough
019. governmental official, or an official of an agency established under an interstate compact
020. state or U.S. supreme court
021. local school district or board of education
022. U.S. Senate
023. U.S. senator
024. foreign nation or instrumentality
025. state or local governmental taxpayer, or executor of the estate of
026. state college or university
027. United States
028. State
029. person accused, indicted, or suspected of crime
030. advertising business or agency
031. agent, fiduciary, trustee, or executor
032. airplane manufacturer, or manufacturer of parts of airplanes
033. airline
034. distributor, importer, or exporter of alcoholic beverages
035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked
036. American Medical Association
037. National Railroad Passenger Corp.
038. amusement establishment, or recreational facility
039. arrested person, or pretrial detainee
040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association
041. author, copyright holder
042. bank, savings and loan, credit union, investment company
043. bankrupt person or business, or business in reorganization
044. establishment serving liquor by the glass, or package liquor store
045. water transportation, stevedore
046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines
047. brewery, distillery
048. broker, stock exchange, investment or securities firm
049. construction industry
050. bus or motorized passenger transportation vehicle
051. business, corporation
052. buyer, purchaser
053. cable TV
054. car dealer
055. person convicted of crime
056. tangible property, other than real estate, including contraband
057. chemical company
058. child, children, including adopted or illegitimate
059. religious organization, institution, or person
060. private club or facility
061. coal company or coal mine operator
062. computer business or manufacturer, hardware or software
063. consumer, consumer organization
064. creditor, including institution appearing as such; e.g., a finance company
065. person allegedly criminally insane or mentally incompetent to stand trial
066. defendant
067. debtor
068. real estate developer
069. disabled person or disability benefit claimant
070. distributor
071. person subject to selective service, including conscientious objector
072. drug manufacturer
073. druggist, pharmacist, pharmacy
074. employee, or job applicant, including beneficiaries of
075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan
076. electric equipment manufacturer
077. electric or hydroelectric power utility, power cooperative, or gas and electric company
078. eleemosynary institution or person
079. environmental organization
080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer.
081. farmer, farm worker, or farm organization
082. father
083. female employee or job applicant
084. female
085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of
086. fisherman or fishing company
087. food, meat packing, or processing company, stockyard
088. foreign (non-American) nongovernmental entity
089. franchiser
090. franchisee
091. lesbian, gay, bisexual, transexual person or organization
092. person who guarantees another's obligations
093. handicapped individual, or organization of devoted to
094. health organization or person, nursing home, medical clinic or laboratory, chiropractor
095. heir, or beneficiary, or person so claiming to be
096. hospital, medical center
097. husband, or ex-husband
098. involuntarily committed mental patient
099. Indian, including Indian tribe or nation
100. insurance company, or surety
101. inventor, patent assigner, trademark owner or holder
102. investor
103. injured person or legal entity, nonphysically and non-employment related
104. juvenile
105. government contractor
106. holder of a license or permit, or applicant therefor
107. magazine
108. male
109. medical or Medicaid claimant
110. medical supply or manufacturing co.
111. racial or ethnic minority employee or job applicant
112. minority female employee or job applicant
113. manufacturer
114. management, executive officer, or director, of business entity
115. military personnel, or dependent of, including reservist
116. mining company or miner, excluding coal, oil, or pipeline company
117. mother
118. auto manufacturer
119. newspaper, newsletter, journal of opinion, news service
120. radio and television network, except cable tv
121. nonprofit organization or business
122. nonresident
123. nuclear power plant or facility
124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels
125. shareholders to whom a tender offer is made
126. tender offer
127. oil company, or natural gas producer
128. elderly person, or organization dedicated to the elderly
129. out of state noncriminal defendant
130. political action committee
131. parent or parents
132. parking lot or service
133. patient of a health professional
134. telephone, telecommunications, or telegraph company
135. physician, MD or DO, dentist, or medical society
136. public interest organization
137. physically injured person, including wrongful death, who is not an employee
138. pipe line company
139. package, luggage, container
140. political candidate, activist, committee, party, party member, organization, or elected official
141. indigent, needy, welfare recipient
142. indigent defendant
143. private person
144. prisoner, inmate of penal institution
145. professional organization, business, or person
146. probationer, or parolee
147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer
148. public utility
149. publisher, publishing company
150. radio station
151. racial or ethnic minority
152. person or organization protesting racial or ethnic segregation or discrimination
153. racial or ethnic minority student or applicant for admission to an educational institution
154. realtor
155. journalist, columnist, member of the news media
156. resident
157. restaurant, food vendor
158. retarded person, or mental incompetent
159. retired or former employee
160. railroad
161. private school, college, or university
162. seller or vendor
163. shipper, including importer and exporter
164. shopping center, mall
165. spouse, or former spouse
166. stockholder, shareholder, or bondholder
167. retail business or outlet
168. student, or applicant for admission to an educational institution
169. taxpayer or executor of taxpayer's estate, federal only
170. tenant or lessee
171. theater, studio
172. forest products, lumber, or logging company
173. person traveling or wishing to travel abroad, or overseas travel agent
174. trucking company, or motor carrier
175. television station
176. union member
177. unemployed person or unemployment compensation applicant or claimant
178. union, labor organization, or official of
179. veteran
180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL)
181. wholesale trade
182. wife, or ex-wife
183. witness, or person under subpoena
184. network
185. slave
186. slave-owner
187. bank of the united states
188. timber company
189. u.s. job applicants or employees
190. Army and Air Force Exchange Service
191. Atomic Energy Commission
192. Secretary or administrative unit or personnel of the U.S. Air Force
193. Department or Secretary of Agriculture
194. Alien Property Custodian
195. Secretary or administrative unit or personnel of the U.S. Army
196. Board of Immigration Appeals
197. Bureau of Indian Affairs
198. Bonneville Power Administration
199. Benefits Review Board
200. Civil Aeronautics Board
201. Bureau of the Census
202. Central Intelligence Agency
203. Commodity Futures Trading Commission
204. Department or Secretary of Commerce
205. Comptroller of Currency
206. Consumer Product Safety Commission
207. Civil Rights Commission
208. Civil Service Commission, U.S.
209. Customs Service or Commissioner of Customs
210. Defense Base Closure and REalignment Commission
211. Drug Enforcement Agency
212. Department or Secretary of Defense (and Department or Secretary of War)
213. Department or Secretary of Energy
214. Department or Secretary of the Interior
215. Department of Justice or Attorney General
216. Department or Secretary of State
217. Department or Secretary of Transportation
218. Department or Secretary of Education
219. U.S. Employees' Compensation Commission, or Commissioner
220. Equal Employment Opportunity Commission
221. Environmental Protection Agency or Administrator
222. Federal Aviation Agency or Administration
223. Federal Bureau of Investigation or Director
224. Federal Bureau of Prisons
225. Farm Credit Administration
226. Federal Communications Commission (including a predecessor, Federal Radio Commission)
227. Federal Credit Union Administration
228. Food and Drug Administration
229. Federal Deposit Insurance Corporation
230. Federal Energy Administration
231. Federal Election Commission
232. Federal Energy Regulatory Commission
233. Federal Housing Administration
234. Federal Home Loan Bank Board
235. Federal Labor Relations Authority
236. Federal Maritime Board
237. Federal Maritime Commission
238. Farmers Home Administration
239. Federal Parole Board
240. Federal Power Commission
241. Federal Railroad Administration
242. Federal Reserve Board of Governors
243. Federal Reserve System
244. Federal Savings and Loan Insurance Corporation
245. Federal Trade Commission
246. Federal Works Administration, or Administrator
247. General Accounting Office
248. Comptroller General
249. General Services Administration
250. Department or Secretary of Health, Education and Welfare
251. Department or Secretary of Health and Human Services
252. Department or Secretary of Housing and Urban Development
253. Interstate Commerce Commission
254. Indian Claims Commission
255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement
256. Internal Revenue Service, Collector, Commissioner, or District Director of
257. Information Security Oversight Office
258. Department or Secretary of Labor
259. Loyalty Review Board
260. Legal Services Corporation
261. Merit Systems Protection Board
262. Multistate Tax Commission
263. National Aeronautics and Space Administration
264. Secretary or administrative unit of the U.S. Navy
265. National Credit Union Administration
266. National Endowment for the Arts
267. National Enforcement Commission
268. National Highway Traffic Safety Administration
269. National Labor Relations Board, or regional office or officer
270. National Mediation Board
271. National Railroad Adjustment Board
272. Nuclear Regulatory Commission
273. National Security Agency
274. Office of Economic Opportunity
275. Office of Management and Budget
276. Office of Price Administration, or Price Administrator
277. Office of Personnel Management
278. Occupational Safety and Health Administration
279. Occupational Safety and Health Review Commission
280. Office of Workers' Compensation Programs
281. Patent Office, or Commissioner of, or Board of Appeals of
282. Pay Board (established under the Economic Stabilization Act of 1970)
283. Pension Benefit Guaranty Corporation
284. U.S. Public Health Service
285. Postal Rate Commission
286. Provider Reimbursement Review Board
287. Renegotiation Board
288. Railroad Adjustment Board
289. Railroad Retirement Board
290. Subversive Activities Control Board
291. Small Business Administration
292. Securities and Exchange Commission
293. Social Security Administration or Commissioner
294. Selective Service System
295. Department or Secretary of the Treasury
296. Tennessee Valley Authority
297. United States Forest Service
298. United States Parole Commission
299. Postal Service and Post Office, or Postmaster General, or Postmaster
300. United States Sentencing Commission
301. Veterans' Administration
302. War Production Board
303. Wage Stabilization Board
304. General Land Office of Commissioners
305. Transportation Security Administration
306. Surface Transportation Board
307. U.S. Shipping Board Emergency Fleet Corp.
308. Reconstruction Finance Corp.
309. Department or Secretary of Homeland Security
310. Unidentifiable
311. International Entity
Answer:
|
songer_respond2_8_3
|
D
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed respondent. The nature of this litigant falls into the category "miscellaneous", specifically "fiduciary, executor, or trustee". Your task is to determine which of the following specific subcategories best describes the litigant.
FISKE et al. v. BUDER et al.
No. 12013.
Circuit Court of Appeals, Eighth Circuit.
Feb. 16, 1942.
Rehearing Denied March 13, 1942.
Jesse T. Friday, of St. Louis, Mo. (E. J. Doerner, of Tulsa, Okl., on the brief), for appellants.
G. A. Buder, Jr., of St. Louis, Mo. (Oscar E. Buder, of St. Louis, Mo., on the brief), for appellees.
Before THOMAS and JOHNSEN, Circuit Judges, and REEVES, District Judge.
THOMAS, Circuit Judge.
In 1898, Ehrhardt D. Franz of Saint Louis, Missouri, died testate, leaving an estate consisting of stocks, bonds and real estate. By the terms of his will his widow, Sophie Franz, was given a life interest in the estate with remainder over in equal shares to his ten children.
In 1909 the surviving widow created a trust, the res of which consisted of all the property owned by her in her own right and also as life tenant under the will of her deceased husband. The appellee, G. A. Buder, and G. A. Franz, now deceased, one of the sons of Ehrhardt D. Franz and Sophie Franz, were named as trustees in the instrument creating the trust. A clause of the instrument also provided that the law firm of Buder and Buder consisting of G. A. Buder, a trustee, and his brother, Oscar E. Buder, should be employed by the trustees as their counsel.
About 1924 dissension arose between the trustees and the owners of 6% shares of the remainder estate on one side and the owners of 3% shares on the other. The dissension resulted in litigation which has been carried on in the courts of Missouri and the Federal courts ever since. The facts necessary to a complete understanding of this controversy will be found in the reported decisions of the Supreme Court of Missouri, of the Supreme Court of the United States, and of this court.
Sophie Franz died in 1930, and her life estate was thereby terminated. The trustees under the trust agreement of 1909 claimed as compensation for their services a commission of five per cent estimated not only upon that part of the trust res which had been owned by Sophie Franz in her own right, but also upon the remainder interests of her deceased husband’s estate. The owners of 3% of the remainder interests objected to the allowance against their property but the owners of the 6% interests, then also represented by Buder and Buder, consented to the allowance. On April 1, 1932, an order was entered in the district court denying the commission upon the 3% shares of the objecting remainder-men but providing “that the said Trustees be allowed a credit for a commission of five per cent upon the value of the remaining 6% shares of the corpus of the estate in their possession.”
In 1939 the five appellants, who are among the owners of the 6% shares, moved the court to modify the order of April 1, 1932, “so as to vacate * * * that portion * * * which allows the claim of the trustees to a 5 per cent commission upon” the appellants’ remainder interests. The trustees filed an answer to the motion, and after a full hearing at which evidence was offered and received an order was entered on December 17, 1940, overruling the motion. The appeal is from this order.
The trust estate was brought under the jurisdiction of the district court in 1924 in the case of E. W. Franz v. G. A. Buder, et al., a case in which jurisdiction is based upon diversity of citizenship. See Franz v. Franz, 8 Cir., 15 F.2d 797. That case is still pending for the purpose at least of administering and closing the trust. In all the proceedings and litigation growing out of the trust the law firm of Buder and Buder represented the trustees and from 1926 until 1935 that firm also represented the appellants. On May 17, 1930, the appellants with the assistance of Buder and Buder, their attorneys, filed a Petition for Distribution of Remainder Interests in which it was stated that they were informed that the trustees under the conveyance of January 30, 1909, had filed, or would file, their petition asking for instructions as to making a distribution of the remainder estate. Among other recitations of the petition it was said: “And your petitioners inform the Court that they have agreed with divers other remaindermen that the said Trustees shall be allowed five per cent (5%) on the Trust Estate as compensation for their services as such trustees, and your petitioners consent to and hereby request that such allowance be made and that the Trustees be permitted to deduct and retain such five per cent (5%) out of their remainder interests aforesaid.”
The report of the trustees was filed about a year later, and in it they claimed a credit for a five per cent commission on the remainder estate.
The grounds of the motion to modify the order of April 1, 1932, by vacating the allowance of a commission to the trustees based upon the remainder interests were: (a) That Buder and Buder, while acting as appellants’ attorneys, for the purpose of enhancing the trustees’ commissions had by fraudulent representations, upon which they relied, procured appellants to sign the Petition for Distribution of May 17, 1930, consenting to the allowance of such commission, and (b) that as a result of the fraud complained of the appellants were deprived of their day in court to contest the allowance of said commission.
The fraudulent representations alleged to have been made were (1) that the trustees were entitled to a five per cent commission based upon the value of the interests of the several remaindermen; (2) that the remaindermen were legally obligated to pay such commission; and (3) that (a) unless appellants followed their advice and agreed to pay the commission the distribution of their remainder interests would be indefinitely postponed, and (b) that upon application of the trustees the court would allow a commission upon the remainder interests in excess of five per cent.
In their answer to the motion appellees admit the historical background alleged in the motion and as defenses plead (1) that the motion is a collateral attack upon the order; (2) that at various times prior to the death of the life tenant appellants had agreed that the trustees should be given a five per cent commission upon their remainder interests; (3) deny the alleged fraudulent representations; and (4) allege laches.
The questions presented upon this appeal for determination are: (1) Does the district court have power to grant the relief asked in appellants’ motion? (2) If so, are the appellants guilty of laches so as to deprive them of the right to relief? And (3) if not guilty of laches, are they entitled to relief on the merits?
1. The Power of the District Court.— After appellants had filed their motion to modify the order of April 1, 1932, appellees moved to dismiss and strike it on the ground that the court was without jurisdiction over the subject matter of appellants’ motion. Appellees’ motion was overruled by the court, and no cross appeal has been taken. The only question which can be raised on this appeal, therefore, is the power of the district court to act in the premises. It is the contention of appellees that the relief asked by appellants’ motion is barred by Rule 60(b) of the Rules of Civil Procedure, 28 U.S.C.A. following section 723c. The motion was not filed within six months after the order sought to be modified was entered. Rule 60(b) provides: “On motion the court, upon such terms as are just, may relieve a party or his legal representative from a judgment, order, or proceeding taken against’ him through his mistake, inadvertence, surprise, or excusable neglect. The motion shall be made within a reasonable time, but in no case exceeding six months after such judgment, order, or proceeding was taken. A motion under this subdivision does not affect the finality of a judgment or suspend its operation. This rule does not limit the power of a court (1) to entertain an action to relieve a party from a judgment, order, or proceeding, or (2) to set aside within one year, as provided in Section 57 of the Judicial Code, U.S.C., Title 28, § 118, a judgment obtained against a defendant not actually personally notified.”
It is argued that this proceeding does not come within the first saving clause of the rule which provides that the rule “does not limit the power of a court (1) to entertain an action to relieve a party from a judgment, order, or proceeding * * *” for the reason that this clause
applies only to original “actions”, and that appellants’ motion is not such an action. It is conceded by appellants, as it must be, that the motion to modify is in the nature of an ancillary proceeding. Simkins: Federal Practice, § 812; Thompson v. Schenectady Ry. Co., C.C.N.Y., 124 F. 274, 277, 278; Wallace v. Fiske, 8 Cir., 80 F.2d 897, 901, 902, 107 A.L.R. 726; St. Louis-San Francisco R. Co. v. Byrnes, 8 Cir., 24 F.2d 66; Dickey v. Turner, 6 Cir., 49 F.2d 998; 1 Moore’s Federal Practice, pp. 462, 465, 466. In this situation the effect and proper construction of Rule 60(b) must be determined. Here the case in which the motion was made is still pending, and the order sought to be modified relates to the administration of a fund in the custody of the court. The question is, does the court in the administration of justice have power under the circumstances to hear and determine the issue presented by the motion and the answer; or more than six months having elapsed after the order was entered before the motion was filed, does Rule 60(b) deprive the court of such power?
Rule 60(b) is based upon § 473 of the Code of Civil Procedure of California, and the question arises whether we should follow the construction placed upon it by the Supreme Court of that state. The general rule is that when a statute is adopted from another jurisdiction, in substantially the same language, the provisions so adopted are to be construed in the sense in-which they were understood at the time in the jurisdiction from which they were: -taken. Metropolitan Railroad Co. v. Moore, 121 U.S. 558, 572, 7 S.Ct. 1334, 30 L.Ed. 1022; United States v. Lecato, 2 Cir., 29 F.2d 694, 695. This is not in conflict with the rule that new legislation must be construed and applied consistently with the construction placed upon the related parts of the general law. United States ex rel. Demarois v. Farrell, 8 Cir., 87 F.2d 957, 962, 963; United States v. Jefferson Electric Co., 291 U.S. 386, 396, 54 S.Ct. 443, 446, 78 L.Ed. 859. And the latter rule does not impair the application of the first to the construction of Rule 60(b). 18 Hughes, Federal Practice, Rules Civil Procedure, p. 445, § 25631 et seq.
The Supreme Court of California has several times had occasion to construe § 473 of the California Code of Civil Procedure in cases where it was sought to vacate a judgment or decree after the period limited by the statute had expired. In Chiarodit v. Chiarodit, 218 Cal. 147, 21 P.2d 562, 564, the court said: “We now turn to consider whether the notice to set aside and vacate the decree was timely given. The notice was served before the expiration of six months but the time set for making the motion fell beyond the limit of section 473 of the Code of Civil Procedure. Those authorities which hold that the motion must actually be made within the period are beside the point in the present case for the reason that here the fraud established by the showing of the respondent was extrinsic. (McGuinness v. Superior Court [196 Cal. 222, 237 P. 42, 40 A.L.R. 1110], supra; Tomb v. Tomb, 120 Cal.App. 438, 7 P.2d 1104), and it has been determined that where it is of that character, the court has the inherent power to set aside the decree regardless of the limitations prescribed by section 473. McGuinness v. Superior Court, supra; Aldrich v. Aldrich, 203 Cal. 433, 264 P. 754; McKeever v. Superior Court, 85 Cal.App. 381, 259 P. 373; Tomb v. Tomb, supra.”
Applying the construction thus placed upon the California statute to Rule 60(b), the district court had power to decide the issue presented by the motion and answer provided the fraudulent representations alleged constitute extrinsic fraud. That question may be discussed more appropriately hereinafter in connection with our decision on- the merits of the controversy. Our conclusion there is that the alleged fraud is extrinsic or collateral. We hold,- therefore, that the district court had power to hear and determine the issues. See, also, Preveden v. Hahn, D.C.S.D.N.Y., 36 F.Supp. 952, 953.
2. Laches. — The contention that appellants’ right to relief is barred by laches, although serious, should not be sustained.
By far the greater part of the property subject to the life estate of Sophie Franz and transferred by her to the trustees consisted of stock dividends issued by corporations. In the early history of the trust it was contended by the trustees that such stock dividends were income belonging to the life tenant and consequently a part of the trust fund subject to a commission to the trustees. It was further contended that the remainder interests had been cancelled by advancements made by the life tenant to the remaindermen. Another claim was that the appellants had by valid contract as early as 1909 agreed to pay the trustees a five per cent commission upon their remainder interests. Practically all of these matters were adjudicated by this court in Buder et al. v. Franz et al., 8 Cir., 27 F.2d 101, decided in 1928. It was there held that stock dividends on stock held in a trust estate are part of the corpus of the estate and not income. It was also held that the remaindermen under the Franz will were not estopped to assert their interest in the securities held by the trustees. The state of Missouri, however, claimed that these stock dividends had by gift or otherwise been surrendered by the remaindermen and belonged to the life tenant. Had this contention been sustained the value of such stock dividends would have been subject to the inheritance tax of the state of Missouri. They would also have been a part of the trust res and liable to the trustees’ commission, because the trust agreement was a Missouri contract and subject to Missouri law. State of Missouri v. Fiske, 290 U.S. 18, 23, 54 S.Ct. 18, 78 L.Ed. 145. In Re Franz’ Estate, 344 Mo. 510, 127 S.W.2d 401, decided March 15, 1939, rehearing denied April 20, 1939, the Supreme Court of Missouri decided these contentions against the state and the trustees.
This ancillary proceeding was filed by the appellants on May 12, 1939, within two months after the decision of the Supreme Court of Missouri in the Franz’ Estate case supra. It was, in view of these circumstances, seasonably filed. It is true that it might have been filed more than six years earlier, but the appellants until that time had no conclusive reason for not believing the representations of Buder and Buder, and for believing that their interests would not be held to belong to their mother’s estate -and to be a part of the trust estate. There could be no distribution of the estate until after the decision of the Supreme Court of Missouri in the Franz’ Estate case supra. See State of Missouri v. Fiske, supra.
in the case of Wallace v. Fiske, supra, this court, at page 912 of 80 F.2d, 107 A.L.R. 726, said:
“ ‘Laches does not, like limitation; grow out of the mere passage of time. But it is founded upon the inequity of permitting the claim to be enforced — an inequity founded upon some change in the condition or relations of the property or the parties.’ Galliher v. Cadwell, 145 U.S. 368, 12 S.Ct. 873, 36 L.Ed. 738. ‘The length of time during which the party neglects the assertion of his rights, which must pass in order to show laches, varies with the peculiar circumstances of each case, and is not, like the matter of limitations, subject to an arbitrary rule. It is an equitable defense, controlled by equitable considerations, and the lapse of time must be so great, and the relations of the defendant, to the rights such, that it would be inequitable to permit the plaintiff to now assert them.’ Alsop v. Riker, 155 U.S. 448, 461, 15 S.Ct. 162, 167, 39 L.Ed. 218.
' “The chancellor will determine the extraordinary’ case in accordance with the equities which condition it. Kelley v. Boettcher, [8 Cir.], 85 F. 55.
“ ‘Laches which will bar a suit in equity depends on the peculiar circumstances of each case, and where the complainant’s inaction does not appear to have worked injury to any one, and.it is not shown that there was any occasion for more promptly asserting his rights, the defense will not prevail.’ Hanchett v. Blair [9 Cir.], 100 F. 817.”
Since, as shown supra, no distribution of the property was possible while the litigation was pending in . the Missouri courts, the parties could not be injured by the delay. It is argued by appellees that certain fights of Honorable James A. Reed had intervened during the delay and that he will be injured by a reversal of the order appealed from. The order of April 1, 1932, directed the trustees to pay Reed $14,000 out of the commissions paid to them. It does not appear that the commissions pay-' able to the trustees in.any event'will not be sufficient to pay this sum. Further, this allowance was made pursuant .to a request of the trustees contained in their report. Reed was not a party to the .suit, and he was given no judgment against the appellants.
Appellees 'assert further that they are prejudiced because of the death of G. A. Franz on July 30, 1939, prior to the trial of this case. His testimony, they assert, would have been important in reference 'to a certain resolution adopted by the parties at Las Vegas, New Mexico, in May, 1909. But the minutes of that meeting were introduced in evidence; and other witnesses were present at that and all other meetings material to the issues, and testified at the hearing. It does not appear' that appellees are in any way prej udiced by the death of Franz. The appellants should not be barred by laches.
3. The Merits. — The’merits of the controversy depend (I) upon the establishment of the alleged fraudulent representations of Buder and Buder inducing appellants to sign the Petition for Distribution on May 16, 1930; that such fraud prevented appellants from excepting to and defending against the allowance of:the claimed com-: mission; and (2) that such fraud, if established, was in its nature extrinsic rather than intrinsic. ■ •
It is the law that fraud must be proved by clear and convincing evidence. Continental Nat. Bank v. Holland Banking Co., 8 Cir., 66 F.2d 823, 830. It must appear also that the, fraud was practiced in the very act of procuring the judgment or order sought to be vacated or' modified and that it was extrinsic or collateral as distinguished from intrinsic fraud. United States v. Throckmorton, 98 U.S. 61, 25 L.Ed. 93; Phœnix Finance Corporation v. Iowa-Wisconsin Bridge Co., 8 Cir., 115 F.2d 1 (reversed on other .grounds by the Supreme Court in Phœnix Finance Corporation v. Iowa-Wisconsin Bridge Co., 62 S.Ct. 139, 86 L.Ed. -).
The evidence upon this question is conflicting. The appellants without dispute, following the death of the.,life tenant on April 14, 1930, met at the Chase Hotel in Saint Louis on May 16, 1930, for the- purpose of consulting their. attorneys, Buder and Buder, and to procure -a prompt distribution of their remainder; .interests in their . deceased father’s - estate. • ■ Some of them consulted G. A. Buder at his law office in the city the preceding day. Oscar E. Buder met with them at the hotel in both a forenoon and an afternoon session.
At the hearing the appellants testified unequivocally that the alleged representations were on the occasions mentioned made by both the Buders, and both the Buders unequivocally denied having made the statements attributed to them. Both parties claim that their testimony is corroborated by many pertinent facts.
It is the claim of appellees that it was the expressed wish of the life tenant that the trustees should be paid a commission of five per cent estimated upon the value of both the life and remainder estates; that her wish was communicated to the appellants and the appellants consented to the carrying out of her wishes.
It is next claimed that in May, 1909, within four months after the execution of the trust agreement of January 30, 1909, and twenty-one years prior to the execution of the Petition for Distribution, a family conference was held at Las Vegas, New Mexico, at which all the members of the family were present except Mrs. Zimmermann and E. W. Franz; and that at that conference a valid contract was entered into fixing the compensation of the trustees at five per cent of the entire property in the trustees’ hands.
. As showing adherence to the alleged agreement of May, 1909, the appellees refer to an agreement made in 1920, by the terms of which the remaindermen paid the trustees a five per cent commission on the distribution of 12,600 rights to subscribe to stock of the Burroughs Adding Machine Company.
Again, in November, 1929, at a family gathering called by the life tenant an instrument was prepared by Buder and Buder for the purpose of distributing a portion of the trust estate. That instrument, signed by the appellants, contained a provision that the trustees should receive a five per cent ■commission upon all the property distributed. That agreement did not become effective because E. W. Franz refused to sign it.
Finally, the Petition of May 17, 1930, the execution of which appellants claim was obtained by fraudulent representations of Buder and Buder, contained a provision that the trustees should retain a commission of five per cent of the market value of the stock distributed for their services in handling the assets of the trust.
Further, the appellees say the evidence of fraud is not clear and convincing but vague and indefinite because the testimony of appellants as to attendant circumstances is not clear and because their positive and direct testimony is denied by both the Buders.
The appellants contend, first, that there is no basis in either law or equity for the allowance of a commission to the trustees appointed by the life tenant payable out of the remainder estates. A life tenant is a quasi trustee for the remainder-men and liable for waste. It was so held by this court in Buder v. Franz, 8 Cir., 27 F.2d 101, 114. In the opinion of Judge Faris in connection with the order of April 1, 1932, he declared that remaindermen are not liable to burdens placed upon their remainder interests by the life tenant and that counsel for the trustees concede the bare bones of the law to be according to the contentions of the 3% excepting interests on this point, and that the trustees relied only upon a species of estoppel resting partly upon the former recognirion of the trust and partly upon the request of practically all of the beneficiaries. The trustees’ charges are lawfully deductible only from the income of the life tenant as a part of the expenses of the trust created by her. Missouri Central Building & Loan Ass’n v. Eveler, 237 Mo. 679, 141 S.W. 877. Their charges are not deductible from the remainder estate because they did not “create, enhance, preserve, or protect” that estate. Abbott, Puller & Myers v. Peyser, Receiver, App.D.C., 124 F.2d 524, 525, decided December 31, 1941.
Second, Buder and Buder, as counsel for the trustees and for more than nine years attorneys for these appellants, consistently claimed and advised that the trustees were entitled to a five per cent commission upon the remainder estates. They consistently endeavored by the instruments which they drew for appellants’ signatures to extinguish the remainder interests and to merge them with the life estate; and that appellants’ signatures were obtained to these various instruments because of their confidence in Buder and Buder and their reliance upon the advice and counsel so given them. The evidence supports these contentions of appellants. G. A. Buder admits their truth. That is the position taken by Buder and Buder in the litigation in both the federal and the state courts. Their explanation of this conduct is that it was a mistake of law, and that the law of Missouri was not settled with respect to the question of whether a stock dividend is income or corpus during that period. That question was settled, however, by the Supreme Court of Missouri in 1927 by its decision in the case of Hayes v. St. Louis Union Trust Co., 317 Mo. 1028, 298 S.W. 91, 99, 56 A.L.R. 1276. In that case the question was whether stock dividends on stock held in trust constituted income or whether they were a part of the corpus. The court held “that the stock dividends were not income of the trust estate but an accretion to the corpus * * After that decision was rendered there was no excuse for a Missouri lawyer to maintain or advise to the contrary.
The other contentions of Buder and Buder as to the validity of contracts prior to May 17, 1930, and as to the effect to be given the conduct of the appellants is answered by the decision of this court in Buder v. Franz, 8 Cir., 27 F.2d 101, 115. In our opinion in that case, Judge Stone, speaking for the court, said: “It is clear, from this record, that this entire controversy has been caused by the trustees. They have consistently and persistently refused to accord the cross-appellants the rights which were due them. They have gone further than this and have and do deny the existence of any and all rights and interest in the cross-appellants. Such course of conduct has compelled this litigation to establish those interests and to enforce and protect the resulting rights.” In that case the appellant and cross-appellants were the owners of 3% remainder interests, but the same conduct of the trustees applied with equal or greater force to these appellants because at that time they were subj ect to the influence of Buder and Buder as their attorneys.
The course of conduct of the trustees condemned by the court in the last cited case, as shown by this record, did not end with the decision of that case. Acting through their counsel, Buder and Buder, they continued in the determination to secure a five per cent commission on the remainder estates. The procuring of the signatures of the appellants to the Petition for Distribution of May 17, 1930, was but a part of that continued purpose. When the record is studied as a whole this fact is established by evidence so clear and convincing that it cannot be doubted. As late as 1931 the trustees filed a claim in the probate court of Saint Louis against the estate of Sophie Franz, deceased, for a five per cent commission upon both the life estate and the remainder interests as constituting the trust fund- in the amount of $810,001.22 as compensation for their services, alleging that all parties in interest had acquiesced in and consented to the charge. That the appellants trusted and relied upon Buder and Buder in signing the Petition is shown by appellants’ entire course of conduct during the period of their employment of Buder and Buder from 1926 until 1935.
The conclusion is also irresistible that appellants did not except to the trustees’ report nor make any defense to the claim of the trustees for credit for a commission upon the remainder interests for the same reason that they signed the Petition for Distribution containing a consent to the allowance of such credit. At that time the life tenant was dead and they were anxious to come into the possession of their remainder interests. They believed that the way to accomplish that desire was to follow the advice of their counsel. To do so involved a failure to file exceptions and contest the allowance which upon the representations and advice of their counsel they had requested the court to make. It is undisputed that Buder and Buder did not tell their clients, the appellants, that they had a right to contest the claimed commissions, nor that the law did not support the contention that the trustees were entitled to such a commission.
Another matter of concern to the court is the undisputed fact that the fiduciary duty of G. A. Buder as attorney for the appellants was in direct conflict with his interest-as a trustee claiming a commission upon their property to which under the law he was not entitled. Such a position is not tenable. It has always been condemned by courts. The relation obviously inspires confidence in the client, and a mere breach of fidelity to the client’s interest is constructive fraud and gives the client a right to redress. Jones v. Byrne, C.C.Ark., 149 F. 457, 464; Baker v. Humphrey, 101 U.S. 494, 495, 25 L.Ed. 1065; Parkerson v. Borst, 5 Cir., 264 F. 761; In re Conrad, 340 Mo. 582, 105 S.W.2d 1. In the litigation pending in the courts from 1926 to 1935 G. A. Buder occupied a fiduciary relation of several angles. He was one of the trustees of the trust estate of S.ophie Franz by reason of which the trustees had possession of the remainder interests under the will of Ehrhardt D. Franz. He had been attorney for the testator. He was Sophie Franz’ attorney. He and his brother were attorneys for the trustees and they were also attorneys for the appellant remaindermen.
Turning to the question of the nature of the fraud complained of as a ground for relief, it is the rule that fraud is extrinsic or collateral within the meaning of the rule when its effect is to prevent an unsuccessful party from having a trial or from fully presenting his case, as, for instance, when his attorney fraudulently connives at his defeat or sells out his client’s interest. Montgomery v. Gilbert, 9 Cir., 77 F.2d 39, 45. It is always extrinsic fraud for an attorney to fail fully to disclose to his client all material facts in any transaction in which their interests are adversary and when such fraud results in a failure of the client to defend against the claim of his attorney. Hockenberry v. Cooper County State Bank, 338 Mo. 31, 88 S.W.2d 1031, 1036. Fraud which prevents a person from presenting an available defense is proper ground for relief against a judgment. Footnote 12, 31 Am.Jr., § 6'54, p. 232. If the fraud really prevents the complaining party from making a full and fair defense it will justify setting aside a decree, whether extrinsic or intrinsic. Toledo Scale Co. v. Computing Scale Co., 261 U.S. 399, 421, 43 S.Ct. 458, 67 L.Ed. 719. In the present instance the conduct and fraudulent advice and representations of Buder and Buder had the direct effect of preventing the appellants from presenting an available defense to the claims of the trustees for a commission based upon the value of the appellants’ remainder estates. For that reason the allowance of the credit claimed in the trustees’ report and granted in the order of April 1, 1932, should be vacated and set aside. The motion should not be denied because of lapse of time under the circumstances of this case since this is purely an ancillary proceeding, since the fund being administered is under the control of the court and undistributed, and since the parties cannot be prejudiced by such an act of justice. In such a case technical considerations should be accorded little weight, unless their effect is to deprive the court of power to act.
The order appealed from is reversed with directions to enter an order sustaining appellants’ motion.
Franz v. Buder, 8 Cir., 11 F.2d 854; Franz v. Franz, 8 Cir., 15 F.2d 797; Buder v. Franz, 8 Cir., 27 F.2d 101; Franz v. Buder, 8 Cir., 34 F.2d 353; Franz v. Buder, 8 Cir., 38 F.2d 605; Mississippi Valley Trust Co. v. Buder, 8 Cir., 47 F.2d 507; Mississippi Valley Trust Co. v. Franz, 8 Cir., 51 F.2d 1047; Fiske v. State of Missouri, 8 Cir., 62 F.2d 150; Wallace v. Franz, 8 Cir., 66 F.2d 457; Wallace v. Franz, 8 Cir., 68 F.2d 313 ; Fiske v. State of Missouri, 8 Cir., 6
Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "miscellaneous", specifically "fiduciary, executor, or trustee". Which of the following specific subcategories best describes the litigant?
A. trustee in bankruptcy - institution
B. trustee in bankruptcy - individual
C. executor or administrator of estate - institution
D. executor or administrator of estate - individual
E. trustees of private and charitable trusts - institution
F. trustee of private and charitable trust - individual
G. conservators, guardians and court appointed trustees for minors, mentally incompetent
H. other fiduciary or trustee
I. specific subcategory not ascertained
Answer:
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sc_respondentstate
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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 associated with the respondent. If the respondent is a federal court or federal judge, note the "state" as the United States. The same holds for other federal employees or officials.
CHESSMAN v. TEETS, WARDEN.
No. 196.
Decided October 17, 1955.
Jerome A. Duffy for petitioner.
Per Curiam.
Petitioner applied to the United States District Court, Northern District of California, Southern Division, for a writ of habeas corpus, claiming that his automatic appeal to the California Supreme Court from a conviction for a capital offense had been heard upon a fraudulently prepared transcript of the trial proceedings. The official court reporter had died before completing the transcription of his stenographic notes of the trial, and petitioner alleges that the prosecuting attorney and the substitute reporter selected by him had, by corrupt arrangement, prepared the fraudulent transcript. On the record before us, there is no denial of petitioner’s allegations. The District Court, without issuing the writ or an order to show cause, dismissed the application as not stating a cause of action. 128 F. Supp. 600. The Court of Appeals affirmed the order of the District Court. 221 F. 2d 276. The charges of fraud as such set forth a denial of due process of law in violation of the Fourteenth Amendment. See Mooney v. Holohan, 294 U. S. 103. Without intimating any opinion regarding the validity of the claim, we hold that in the circumstances disclosed by the record before us the application should not have been summarily dismissed. Accordingly, the petition for a writ of certiorari is granted, the judgment of the Court of Appeals is reversed and the case is remanded to the District Court for a hearing.
Mr. Justice Reed, Mr. Justice Burton, and Mr. Justice Clark dissent..
The Chief Justice took no part in the consideration or decision of this case.
Question: What state is associated with the respondent?
01. Alabama
02. Alaska
03. American Samoa
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. District of Columbia
11. Federated States of Micronesia
12. Florida
13. Georgia
14. Guam
15. Hawaii
16. Idaho
17. Illinois
18. Indiana
19. Iowa
20. Kansas
21. Kentucky
22. Louisiana
23. Maine
24. Marshall Islands
25. Maryland
26. Massachusetts
27. Michigan
28. Minnesota
29. Mississippi
30. Missouri
31. Montana
32. Nebraska
33. Nevada
34. New Hampshire
35. New Jersey
36. New Mexico
37. New York
38. North Carolina
39. North Dakota
40. Northern Mariana Islands
41. Ohio
42. Oklahoma
43. Oregon
44. Palau
45. Pennsylvania
46. Puerto Rico
47. Rhode Island
48. South Carolina
49. South Dakota
50. Tennessee
51. Texas
52. Utah
53. Vermont
54. Virgin Islands
55. Virginia
56. Washington
57. West Virginia
58. Wisconsin
59. Wyoming
60. United States
61. Interstate Compact
62. Philippines
63. Indian
64. Dakota
Answer:
|
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.
KAWAAUHAU et vir v. GEIGER
No. 97-115.
Argued January 21, 1998
Decided March 3, 1998
GlNSBURG, J., delivered the opinion for a unanimous Court.
Norman W. Pressman argued the cause for petitioners. With him on the briefs were Teresa A. Generous, .Ronald J. Mann, and Edward B. Greensfelder.
Laura K. Grandy argued the cause and filed a brief for respondent.
Gary Klein filed a brief for the National Association of Consumer Bankruptcy Attorneys as amicus curiae urging affirmance.
Justice Ginsburg
delivered the opinion of the Court.
Section 523(a)(6) of the Bankruptcy Code provides that a debt “for willful and malicious injury by the debtor to another” is not dischargeable. 11 U. S. C. § 523(a)(6). The question before us is whether a debt arising from a medical malpractice judgment, attributable to negligent or reckless conduct, falls within this statutory exception. We hold that it does not and that the debt is dischargeable.
I
In January 1983, petitioner Margaret Kawaauhau sought treatment from respondent Dr. Paul Geiger for a foot injury. Geiger examined Kawaauhau and admitted her to the hospital to attend to the risk of infection resulting from the injury. Although Geiger knew that intravenous penicillin would have been more effective, he prescribed oral penicillin, explaining in his testimony that he understood his patient wished to minimize the cost of her treatment.
Geiger then departed on a business trip, leaving Kawaau-hau in the care of other physicians, who decided she should be - transferred to an infectious diseáse specialist. When Geiger returned, he canceled the transfer "and discontinued all antibiotics because'he believed the infection had subsided. Kawaauhau’s condition deteriorated over the next few days, requiring the amputation of her right leg below the knee.
KawaauhaUj joined by her husband Solomon, sued Geiger for malpractice. After a trial, the jury found Geiger liable and awarded the Kawaauhaus approximately $355,000 in damages. Geiger, who carried no malpractice insurance, moved to Missouri, where his wages were garnished by the Kawaauhaus. Geiger then petitioned for bankruptcy. The Kawaauhaus requested the Bankruptcy Court to hold the malpractice judgment nondisehargeable on the ground that it was a debt “for willful and malicious injury” excepted from discharge by 11 U. S. C. § 523(a)(6). The Bankruptcy Court concluded that Geiger’s treatment fell far below the appropriate standard of care and therefore ranked as “willful and malicious.” Accordingly, the Bankruptcy Court held the debt nondisehargeable. In re Geiger, 172 B. R. 916, 922-923 (Bkrtcy. Ct. ED Mo. 1994). In an unpublished order, the District Court affirmed. App. to Pet. for Cert. A-18 to A-22.
A three-judge panel of the Court of Appeals for the Eighth Circuit reversed, 93 F. 3d 443 (1996), and a divided en banc court adhered to the panel’s position, 113 F. 3d 848 (1997) (en banc). Section 523(a)(6)’s exemption from discharge, the en banc court held, is confined to debts “based on what the law has for generations called an intentional tort.” Id., at 852. On this view, a debt for malpractice, because it is based on conduct that is negligent or reckless, rather than intentional, remains dischargeable.
The Eighth Circuit acknowledged that its interpretation of § 523(a)(6) diverged from previous holdings of the Sixth and Tenth Circuits. See id., at 853 (citing Perkins v. Scharffe, 817 F. 2d 392, 394 (CA6), cert. denied, 484 U. S. 853 (1987), and In re Franklin, 726 F. 2d 606, 610 (CA10 1984)). We granted certiorari to resolve this conflict, 521 U. S. 1153 (1997), and now affirm the Eighth Circuit’s judgment.
II
Section 523(a)(6) of the Bankruptcy Code provides:
“(a) A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt—
“(6) for willful and malicious injury by the debtor to another entity or to the property of another entity.”
The Kawaauhaus urge that the malpractice award fits within this exception because Dr. Geiger intentionally rendered inadequate medical care to Margaret Kawaauhau that necessarily led to her injury. According to the Kawaauhaus, Geiger deliberately chose less effective treatment because he wanted to cut costs, all the while knowing that he was providing substandard care. Such conduct, the Kawaauhaus assert, meets the “willful and malicious” specification of § 528(a)(6).
We confront this pivotal question concerning the scope of the “willful and malicious injury” exception: Does §523(a)(6)’s compass cover acts, done intentionally, that cause injury (as the Kawaauhaus urge), or only acts done with the actual intent to cause injury (as the Eighth Circuit ruled)? The words of the statute strongly support the Eighth Circuit’s reading.
The word “willful” in (a)(6) modifies the word “injury,” indicating that nondisehargeability takes a deliberate or intentional injury, not merely a deliberate or intentional act that leads to injury. Had Congress meant to exempt debts resulting from unintentionally inflicted injuries, it might have described instead “willful acts that cause injury.” Or, Congress might have selected an additional word or words, i. e., “reckless” or “negligent,” to modify “injury.” Moreover, as the Eighth Circuit observed, the (a)(6) formulation triggers in the lawyer’s mind the category “intentional torts,” as distinguished from negligent or reckless torts. Intentional torts generally require that the actor intend “the conse quences of an act,” not simply “the act itself.” Restatement (Second) of Torts § 8A, Comment a, p. 15 (1964) (emphasis added).
The Kawaauhaus’ more encompassing interpretation could place within the excepted category a wide range of situations in which an act is intentional, but injury is unintended, i. e., neither desired nor in fact anticipated by the debtor. Every traffic accident stemming from an initial intentional act — for example, intentionally rotating the wheel of an automobile to make a left-hand turn without first checking oncoming traffic — could fit the description. See 113 F. 3d, at 852. A “knowing breach of contract” could also qualify. See ibid. A construction so broad would be incompatible with the “well-known” guide that exceptions to discharge “should be confined to those plainly expressed.” Gleason v. Thaw, 236 U. S. 558, 562 (1915).
Furthermore, “we are hesitant to adopt an interpretation of a congressional enactment which renders superfluous another portion of that same law.” Mackey v. Lanier Collection Agency & Service, Inc., 486 U. S. 825, 837 (1988). Reading § 523(a)(6) as the Kawaauhaus urge would obviate the need for § 523(a)(9), which specifically exempts debts “for death or personal injury caused by the debtor’s operation of a motor vehicle if such operation was unlawful because the debtor was intoxicated from using alcohol, a drug, or another substance.” 11 U. S. C. § 523(a)(9); see also §523(a)(12) (exempting debts for “malicious or reckless failure” to fulfill certain commitments owed to a federal depository institutions regulatory agency).
The Kawaauhaus heavily rely on Tinker v. Colwell, 193 U. S. 473 (1904), which presented this question: Does an award of damages for “criminal conversation” survive bankruptcy under the 1898 Bankruptcy Act’s exception from discharge for judgments in civil actions for “ 'willful and malicious injuries to the person or property of another’ ”? Id., at 480. The Tinker Court held such an award a nondis-ehargeable debt. The Kawaauhaus feature certain statements in the Tinker opinion, in particular: “[An] act is willful ... in the sense that it is intentional and voluntary” even if performed “without any particular malice,” id., at 485; an act that “necessarily causes injury and is done intentionally, may be said to be done willfully and maliciously, so as to come within the [bankruptcy discharge] exception,” id., at 487. See also id., at 486 (the statute exempts from discharge liability for “‘a wrongful act, done intentionally, without just cause or excuse’ ”) (quoting from definition of malice in Bromage v. Prosser, 4 Barn. & Cress. 247, 107 Eng. Rep. 1051 (K. B. 1825)).
The exposition in the Tinker opinion is less than crystalline. Counterbalancing the portions the Kawaauhaus emphasize, the Tinker Court repeatedly observed that the tort in question qualified in the common law as trespassory. Indeed, it ranked as “trespass vi et armis.” 193 U. S., at 482, 483. Criminal conversation, the Court noted, was an action akin to a master’s “action of trespass and assault ... for the battery of his servant,” id., at 482. Tinker thus placed criminal conversation solidly within the traditional intentional tort category, and we so confine its holding. That decision, we clarify, provides no warrant for departure from the current statutory instruction that, to be nondischargeable, the judgment debt must be “for willful and malicious injury.”
Subsequent decisions of this Court are in accord with our construction. In McIntyre v. Kavanaugh, 242 U.S. 138 (1916), a broker “deprive[d] another of his property forever by deliberately disposing of it without semblance of authority.” Id., at 141. The Court held that this act constituted an intentional injury to property of another, bringing it within the discharge exception. But in Davis v. Aetna Ac ceptance Co., 293 U. S. 328 (1934), the Court explained that not every tort judgment for conversion is exempt from discharge. Negligent or reckless acts, the Court held, do not suffice to establish that a resulting injury is “wilful and malicious.” See id., at 332.
Finally, the Kawaauhaus maintain that, as a policy matter, malpractice judgments should be excepted from discharge, at least when the debtor acted recklessly or carried no malpractice insurance. Congress, of course, may so decide. But unless and until Congress makes such a decision, we must follow the current direction § 523(a)(6) provides.
* * *
We hold that debts arising from recklessly or negligently inflicted injuries do not fall within the compass of § 523(a)(6). For the reasons stated, the judgment of the Court of Appeals for the Eighth Circuit is
Affirmed.
The jury awarded Margaret Kawaauhau $203,040 in special damages •and $99,000 in general damages. In re Geiger, 172 B. R. 916, 919 (Bkrtcy. Ct. ED Mo. 1994). In addition, the jury awarded Solomon Kawaauhau $18,000 in general damages for loss of consortium and $35,000 for emotional distress. Ibid.
Although the record is not clear on this point, it appears that Dr. Geiger was not required by state law to cany .medical malpractice insurance. See Tr. of Oral Arg. 19.
The word “willful” is defined in Black’s Law Dictionary as “voluntary” or “intentional.” Black’s Law Dictionary 1434 (5th ed. 1979). Consistently, legislative reports note that the word “willful” in § 523(a)(6) means “deliberate or intentional.” See S. Rep. No. 95-989, p. 79 (1978); H. R. Rep. No. 95-595, p. 365 (1977).
Sections 523(a)(9) and (12) were added to the Bankruptcy Code in 1984 and 1990 respectively. See Pub. L. 98-353, 98 Stat. 364 (1984), and Pub. L. 101-647, 104 Stat. 4865 (1990).
Question: Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case. Did the petitioning win the case?
A. Yes
B. No
Answer:
|
songer_adminrev
|
O
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the federal agency (if any) whose decision was reviewed by the court of appeals. If there was no prior agency action, choose "not applicable".
RHODE ISLAND HOSPITAL TRUST COMPANY, Executor, Petitioner, v. COMMISSIONER OF INTERNAL REVENUE, Respondent.
No. 4896.
United States Court of Appeals, First Circuit.
March 10, 1955.
Thomas R. Wickersham, Providence, R. I., with whom Harold B. Tanner, Providence, R. I., was on brief, for petitioner.
David 0. Walter, Sp. Asst, to Atty. Gen., with whom H. Brian Holland, Asst. Atty. Gen., and Ellis N. Slack, Sp. Asst, to Atty. Gen., were on brief, for respondent.
Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.
MAGRUDER, Chief Judge.'
This is a petition filed by Rhode Island Hospital Trust Company, as executor of the estate of the decedent Thomas E. Steere, seeking review of a decision of the Tax Court, 22 T.C. 79,’determining a deficiency in the estate tax of the said decedent. The Commissioner had assessed certain deficiencies against the estate, all of which deficiencies were settled by the parties at or before trial in the Tax Court. The sole issue now before us was first raised in the Commissioner’s answer. The question presented is whether the decedent as settlor of a., certain trust had at the date of his death reserved the right to alter or amend the trust so as to require inclusion of the corpus in his gross estate under the provisions of § 811(d) (1) of the Internal Revenue Code, 26 U.S.C.A.
By instrument dated May 13, 1925, decedent conveyed certain property and insurance policies to Rhode Island Hospital Trust Company in trust, the income from the property to be applied to payment of premiums on the insurance policies. Upon the settlor’s death the property and proceeds of the insurance policies were to be paid to the estate of the settlor. The trust instrument defined the investment and management powers of the trustee and contained the following provision:
“Provided, however, that the deposits made herewith and all future deposits as hereinbefore authorized and the trusts hereby declared, are to be considered as made and declared to be, and are made and declared, subject to the condition that I may at any time or from time to time during my life revoke any or all of the trusts herein declared and repossess myself of any or all of said property or policies, or any thereof, or any part or parts or accumulations of said property as my own sole property freed of all trusts; or I may at any time or from time to time add to, annul, change or modify in any respect whatsoever any of the trusts or powers hereby created or conferred, or any of the dispositions of income or of principal of my said trust estate.”
On September 23, 1937, the settlor modified the 1925 trust extensively. The 1937 instrument recited the above-quoted language as authority for the modi-' fication, as follows:
“Whereas, it is provided in said deed of trust that I may at any time or from time to time during my life revoke any or all of the trusts therein declared or at any time or from time to time add to, annul, change or modify in any respect whatsoever any of the trusts or powers thereby created or conferred, or any dispositions of income or principal of my said trust estate;
Now, Therefore, in exercise of the power therein retained by me, I do hereby change and modify the terms and provisions of said trust and the powers therein created and conferred, with regard to the property now held by my said trustee under the terms and provisions of said trust, whether principal or income or additions to or accumulations of the same, and notwithstanding any provisions to the contrary in said deed of trust contained, in the following manner * * * *f
The modified trust was to continue after the settlor’s death, providing a life estate for his wife if she survived, then equal gifts to his children or to grandchildren if the settlor’s children failed to live until certain designated ages. In other detailed provisions the modifying instrument spelled out the power of the trustee to invade principal, spendthrift provisions, and broader powers of investment for the trustee. The instrument concluded:
“I hereby declare said deed of trust bearing date of May 13, 1925, as modified by this instrument, to be irrevocable.
“In all other respects I hereby ratify and confirm said deed of trust.”
No further amendments were made at any time, and the settlor died on February 23, 1949.
Section 811(d) (1) provides as follows:
Ҥ 811. Gross estate
“The value of the gross estate of the decedent shall be determined by including the value at the time of his death of all property, real or personal, tangible or intangible, wherever situated, except real property situated outside of the United States— * *
“(d) Revocable transfers
“(1) Transfers after June 22, 1936. To the extent of any interest therein of which the decedent has at any time made a transfer (except in case of a bona-fide sale for an adequate and full consideration in money or money’s worth), by trust or otherwise, where the enjoyment thereof was subject at the date of his death to any change through the exercise of a power (in whatever capacity exercisable) by the decedent alone or by the decedent in conjunction with any other person (without regard to when or from what source the decedent acquired such power), to alter, amend, revoke, or terminate, or where any such power is relinquished in contemplation of decedent’s death * *
The Tax Court determined that the powers reserved in the 1925 instrument to “at any time or from time to time add to, annul, change or modify in any respect whatsoever any of the trusts or powers hereby created or conferred, or any of the dispositions of income or principal of my said trust estate” are encompassed by the “alter” or “amend” of § 811(d) (1), and this petitioner concedes. The Tax Court then held that the declaration of the 1937 instrument that the trust was to be “irrevocable” does not indicate that the settlor intended to release his power to alter or amend, and that this power was specifically carried forward by the provision, “In all other respects I hereby ratify and confirm said deed of trust.”
Petitioner contends that the Tax Court erroneously construed the unambiguous language of the two instruments, arguing ■ that to treat the 1925 phrase “add to, annul, change or modify in any respect whatsoever” as continued in force by the 1937 instrument, would negate the express provision of the latter instrument that the trust “as modified” was to be “irrevocable”, for several reasons:
(1) Because “to annul” is equivalent to “to revoke”, the provision in the 1937 instrument that the trust, as modified, is to be irrevocable amounted to a release not only of the power to revoke but also of the power to annul. Therefore, it is argued that the settlor could hardly have intended to release his power to “annul" without at the same time releasing the power “to change or modify” contained in the same clause; hence the only reasonable interpretation is that none of such powers were reserved by the 1937 instrument. On the other hand, the Commissioner contends that since “revoke” is defined in terms of re-vesting the corpus in the settlor in the 1925 instrument, while “annul” is not so defined, “annul” must refer to some modification of the trust provisions which would not result in a revesting in the settlor. We are not impressed by this particular contention of the Commissioner, because it would be difficult then to imagine what power was described by “annul”. On the whole, it seems more reasonable to treat “annul” as surplusage in the 1925 instrument, and to consider both the stated power to revoke and the redundant power to annul as extinguished by the later irrev-ocability provision, without affecting the power to “change or modify”.
(2) Because, had the effect of the 1937 instrument been to continue in force the power to “change or modify in any respect whatsoever”, this would have nullified the express irrevocability provision, since an unrestricted power to modify would authorize the settlor by amendment to make his estate the sole beneficiary and then permit him, in an action in equity, to terminate the trust. Petitioner cites as authority a series of cases and § 331 of Am.Law Inst., Restatement of Trusts, Comment h, which in part states that, “If the power to modify is subject to no restrictions it includes a power to revoke the trust.” The cases referred to, however, do not support this proposition since in none of them was there present any indication of an expressed intention that the trust should be irrevocable in favor of the settlor. In Porter v. Commissioner, 2 Cir., 1932, 60 F.2d 673, 674, at page 674, Judge Learned Hand had occasion to consider a similar argument. He reviewed several decisions of lower New York courts holding that, where a trust was irrevocable but reserved in the settlor power to change beneficiaries, the settlor could change to one friendly beneficiary and with, his consent revoke the trust. Judge Hand stated:
“The Court of Appeals of [New York] has not, however, passed upon the point, and we are not entirely satisfied that' the rights of existing beneficiaries can be circumvented by such a device. It may eventually be held that while the donee of the power is at liberty to revoke and reappoint at his pleasure, his choice must not violate the condition upon its exercise, either directly or indirectly. If so, the original interests are defeasible only when the settlor does not profit by the change, and equity will inquire whether this limitation has been observed, or whether the whole contrivance is in violation of the trust.”
This seems the more sensible view, and it is consistent with the comment of the Restatement of Trusts quoted above, if the irrevocability provision be considered as in effect an implied restriction upon the power to modify.. Moreover, we do not think that this tenuous hypothesis as to what a court of equity might permit affords much assistance in divining the settlor’s intention. For this reason the Third Circuit rejected a similar argument in In re' Tyler’s Estate, 1940, 109 F.2d 421, stating at page 422: “We think that the petitioners can draw small aid from [the language of § 331 of the Restatement of Trusts] for it is obvious that while a power to modify a trust may include a power to revoke it, the power to revoke a trust need not include necessarily the power to alter it.”
(3) Because, had it been desired to retain a power to alter or amend, especially after having provided for irrevocability, the draftsman would naturally have spelled out such a reservation with great particularity. But this is a fruitless speculation; it can be argued with equal force that a careful draftsman would have expressly surrendered the power to change or modify had this been the set-tlor’s intention.
Both parties contend that the trust instruments are free of any ambiguity and necessitate the opposing constructions which they respectively urge. As suggested previously, a careful draftsman would have specifically provided for either retention or surrender of the amendatory power. But the instruments do present a sufficiently definite expression to afford a basis for decision. The 1925 instrument rather clearly distinguished power of alteration from power of revocation. This distinction is carried over in the 1937 instrument, where the amendatory power is referred to as authority for the modification. When the settlor provided that the trust as modified was to be irrevocable, this does not necessarily indicate any more than that he intended to bar the possibility of repossessing himself of the corpus. Nor is there anything in the total donative scheme to suggest that the settlor did not desire to continue in effect his amendatory power. Therefore, we are in agreement with the opinion of the Tax Court.
Petitioner alternatively argues that, if this court should consider the trust instruments ambiguous as to the crucial question, that ambiguity should be resolved in petitioner’s favor on the basis of actions of the settlor subsequent to his making the 1937 instrument. Whether we should consider this extrinsic evidence may be a question, since we have determined that the instruments on their face are sufficiently clear to furnish a basis for decision. However, we have looked at it, and find it quite inconclusive and unpersuasive. Briefly, petitioner showed that the settlor filed a gift tax return in 1938 treating the 1937 instrument as a completed gift. By affirmative answer to a form question in that return, petitioner indicated he had made a gift “By the creation of an irrevocable trust for the benefit of another”. Subsequently petitioner paid a deficiency assessed by the Commissioner on this transaction and paid further taxes and deficiencies upon two later gifts to the trust.
Petitioner argues that the settlor must have paid these gift taxes upon the advice of counsel that a completed gift had been made within the rule of Estate of Sanford v. Commissioner, 1939, 308 U.S. 39, 60 S.Ct. 51, 84 L.Ed. 20, which held that a gift in trust was not complete for gift tax purposes merely because the trust was declared to be irrevocable; but that such gift became complete upon subsequent renunciation of a reserved power to modify so as to designate new beneficiaries. The Commissioner points out in the present case that the initial gift tax return was made at a time when the state of the law was unclear, since the Sanford decision had not then been rendered and since it had been the Commissioner’s policy (as reflected by the question asked on the face of the form as to whether an irrevocable trust had been created) to assess a gift tax when a trust was made irrevocable regardless of a reserved power to modify. The Commissioner suggests that the later payments of taxes and deficiencies involved such small sums that they were inconclusive even in light of the Sanford decision. As the Tax Court observed, there will be no inequity in the assessment of an estate tax on the trust notwithstanding these earlier payments of gift tax, since the parties have stipulated that any gift taxes paid by- the settlor will be allowed as credits to the estate tax.
The Commissioner is certainly right in stating that at the time-of the execution of the 1937 instrument, the state of the law relating to the taxability of the trust as modified was far from clear. The Supreme Court, in Burnet v. Guggenheim, 1933, 288 U.S. 280, 53 S.Ct. 369, 77 L.Ed. 748, had held that, under the Revenue Act of 1924, a transfer in trust was taxable when the settlor surrendered a power of revocation. In the same year the Supreme Court, in Porter v. Commissioner, 1933, 288 U.S. 436, 53 S.Ct. 451, 77 L.Ed. 880, held that a transfer in trust subject to a power to modify or alter in the interest of anyone except the settlor was an incomplete transfer as far as the estate tax was concerned. Since the Court in the Guggenheim case plainly stated that the gift and estate tax statutes were in pari materia, one would suppose that the logical conclusion of the Porter case would have been acceptance of the incompleteness for gift tax purposes of a trust with the power to alter reserved. However, the Commissioner seems to have adopted an ambiguous and fluctuating policy with regard to such a transfer under the 1924 Act and, in the amended regulation of 1936 under the 1932 Act, Art. 111, Reg. 79, declared that such a gift was completed for gift tax purposes. The confused state of administrative practice is detailed in Estate of Sanford, v. Commissioner, 1939, 308 U.S. 39, at pages 49-52, 60 S.Ct. 51, 84 L.Ed. 20. Two months prior to the execution of the 1937 instrument herein involved, in Hesslein v. Hoey, 2 Cir., 1937, 91 F.2d 954, certiorari denied, 1937, 302 U.S. 756, 58 S.Ct. 284, 82 L.Ed. 585, a divided court held that such a transfer was not complete for gift tax purposes. And in Estate of Sanford v. Commissioner, supra, and the companion case of Rasquin v. Humphreys, 1939, 308 U.S. 54, 60 S.Ct. 60, 84 L.Ed. 77, the Supreme Court adopted this view. Without further elaboration, it is certainly .not a clear inference that the settlor’s payment of the gift tax in 1938 must have been motivated by his understanding that the power to change or modify had been surrendered. It would be as reasonable to infer either a misapprehension of the state of the law or a desire to play it both ways — that is, to retain the power to modify should later domestic . developments make this desirable, while laying the foundation for avoiding the payment of a future estate tax by treating the instruments as a completed gift for gift tax purposes. Nor does it seem that the payment of subsequent gift taxes and deficiencies would necessitate a choice between these alternative inferences except to the extent that sound legal advice would have explained the implications of the Sanford rule. Since the later taxes and deficiencies were small, it may well be that such advice was not sought by the settlor.
Moreover, petitioner has perhaps proved too much by introducing evidence of taxes and deficiencies paid upon the gifts to the trusts in later years. In the 1925 instrument, the settlor reserved the power to “add to” the corpus of the trust. Even if this was an unnecessary ■reservation, it may well be that the set-tlor did not consider it so and might have been availing himself of this power in making the subsequent gifts to the trust. This is not to say that the reservation of such a power would have made the earlier gifts incomplete for the purpose of taxability under the Sanford doctrine, but rather that the settlor after 1937 in fact utilized one of the powers reserved in the same clause of the 1925 instrument that contained the critical, power to change or modify.
The decision of the Tax Court is affirmed.
Question: What federal agency's decision was reviewed by the court of appeals?
A. Benefits Review Board
B. Civil Aeronautics Board
C. Civil Service Commission
D. Federal Communications Commission
E. Federal Energy Regulatory Commission
F. Federal Power Commission
G. Federal Maritime Commission
H. Federal Trade Commission
I. Interstate Commerce Commission
J. National Labor Relations Board
K. Atomic Energy Commission
L. Nuclear Regulatory Commission
M. Securities & Exchange Commission
N. Other federal agency
O. Not ascertained or not applicable
Answer:
|
songer_appnatpr
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
UNITED STATES of America, Plaintiff-Appellee, v. Paul Albert ASKEW, a/k/a, Theodore Eugene Kelley, Defendant-Appellant.
No. 77-1549.
United States Court of Appeals, Tenth Circuit.
Argued and Submitted May 10, 1978.
Decided Oct. 10, 1978.
Jeffrey A. Hyman, Denver, Colo., for defendant-appellant.
Bruce E. Miller, Asst. U. S. Atty., Topeka, Kan. (James P. Buchele, U. S. Atty., Topeka, Kan., on the brief), for plaintiff-appel-lee.
Before SETH, Chief Judge, and LEWIS and DOYLE, Circuit Judges.
LEWIS, Circuit Judge.
The defendant appeals from a judgment entered following a court trial in which he was found guilty of three counts of interstate transportation of forged securities under 18 U.S.C. § 2314. Defendant asserts that he was denied his constitutional rights to a speedy trial and due process of law. He also assigns error to the trial court in admitting evidence relating to other crimes committed by the defendant and allowing the prosecution to comment on the failure of the defendant to produce handwriting exemplars. For reasons hereinafter stated we affirm the judgment below.
Defendant was indicted for the above-mentioned offenses on December 13, 1974. After a number of continuances were granted the defendant due to poor health, an omnibus hearing was held on April 15, 1975, and the defendant was arraigned on May 19. On June 12, the defendant was ordered to provide the Government with certain handwriting exemplars, but upon his refusal in open court to comply, the defendant was ordered held in contempt on July 1, 1975. The trial was continued until such time as the defendant purged himself of contempt. Over nineteen months later, on February 22,1977, the defendant moved for dismissal based on denial of his right to a speedy trial. This motion was denied on March 3, 1977, and the ease was reset for trial based on indications by the Government that it was willing to try the case without the requested exemplars. Following further continuances the case was tried to the court on May 10, 1977.
I.
The record in this case reveals that the defendant has not suffered a deprivation of his Sixth Amendment right to a speedy trial. The Supreme Court has prescribed a balancing test in speedy trial cases which calls for an ad hoc appraisal of the following factors: “Length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101. While the length of delay in this case was substantial, that alone does not require dismissal on Sixth Amendment grounds. The greater part of the delay was caused by the defendant himself, due to his poor health in the early stages of the litigation and later by his refusal to comply with the court order to submit handwriting exemplars. The defendant will not be heard to complain about delay for which he was the cause. United States v. Key, 10 Cir., 458 F.2d 1189, cert. denied, 408 U.S. 927, 92 S.Ct. 2510, 33 L.Ed.2d 339. The order to produce the handwriting exemplars was lawful, Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1171; United States v. Mara, 410 U.S. 19, 93 S.Ct. 774, 35 L.Ed.2d 99, and the court possessed “inherent power” to enforce compliance through civil contempt. Shillitani v. United States, 384 U.S. 364, 370, 86 S.Ct. 1531, 16 L.Ed.2d 622. Defendant’s reliance on Hovey v. Elliott, 167 U.S. 409, 17 S.Ct. 841, 42 L.Ed. 215, in support of his assertion that it was improper to postpone the trial during his confinement for contempt is misplaced. The Hovey court held merely that a defendant could not properly be subjected to a default judgment due to inability to file an answer while being confined in contempt. No such judgment was entered against defendant in this case. A trial court must be empowered to continue proceedings until the defendant is purged of contempt, or the efficacy of the court’s valid orders would be substantially vitiated. See, United States v. Mitchell, 6 Cir., 556 F.2d 371.
The case was set for trial on March 15, 1977, but was delayed due to unavailability of three government witnesses and conflicting obligations of the prosecutor. This is sufficient justification for some delay. Barker v. Wingo, supra, 407 U.S. at 531, 92 S.Ct. 2182. Defendant did not raise his speedy trial arguments until February 22, 1977, and he has shown no prejudice from the delay. Under Barker, prejudice to the defendant is assessed in terms of the following interests which the speedy trial right is intended to protect: “(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.” Id., at 532, 92 S.Ct. at 2193 (footnote omitted). During most of the pendency of this case the defendant was in custody for charges pending against him in the Western District of Missouri, which were not dismissed until April 14, 1977. Further, the defendant produced no evidence at trial and has made no showing that his defense was at all prejudiced by the delay. While we do not minimize the anxiety and concern to which the defendant was subjected in awaiting trial, Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607, we hold that the total circumstances presented here do not amount to deprivation of the Sixth Amendment right to a speedy trial. United States v. Mackay, 10 Cir., 491 F.2d 616, cert. denied, 419 U.S. 1047, 95 S.Ct. 619, 42 L.Ed.2d 640.
II.
Defendant contends that he was denied due process of law by what he deems an unreasonable government delay in determining that the case could be prosecuted without the sought handwriting exemplars. We are provided with no authority in support of this proposition, and we find it to be without merit. The handwriting exemplars sought by the Government would have unquestionably been highly relevant and useful in the prosecution of this case, even if they were not absolutely essential, and the trial judge found the Government’s case to be substantially weakened without them. In light of defendant’s prolonged recalcitrance, however, the Government may well have concluded that it faced even greater risk from faded memories of witnesses if prosecution were to be delayed further. The belated decision to proceed without the desired exemplars was thus reasonable under the circumstances, and defendant was not deprived of due process of law.
III.
At trial evidence was presented that in 1971 the defendant was convicted of violation of 18 U.S.C. § 2314, the same statutory offense involved here. The offenses with which defendant was here charged occurred within a few months after he was released from the sentence imposed after the earlier conviction. The trial judge ruled that evidence of the prior conviction was admissible under Fed.R.Evid. 404(b) to show knowledge, intent, and the absence of mistake or accident. The judge further ruled that the probative value of the evidence of prior conviction greatly outweighed its possible prejudicial effect. This determination was properly within the trial judge’s discretion, and the admittance of this evidence does not call for reversal. United States v. Nolan, 10 Cir., 551 F.2d 266, cert. denied, 434 U.S. 904, 98 S.Ct. 302, 54 L.Ed.2d 191.
IV.
The final appellate argument presented here is that the trial court erred in allowing the Government to comment on defendant’s refusal to produce exemplars as tending to prove his guilt of the offense charged. The sole authority cited by defendant is an opinion from another circuit. United States v. White, 7 Cir., 355 F.2d 909, cert. denied, 389 U.S. 1052, 88 S.Ct. 796, 19 L.Ed.2d 846. The great weight of authority, however, holds such comment proper. United States v. Blakney, 10 Cir., 581 F.2d 1389 (1978); United States v. Franks, 6 Cir., 511 F.2d 25, 35-36, cert. denied sub nom. Mitchell v. United States, 422 U.S 1042, 95 S.Ct. 2656, 45 L.Ed.2d 693, and Britton v. United States, 422 U.S. 1048, 95 S.Ct. 2667, 45 L.Ed.2d 701; United States v. Nix, 5 Cir., 465 F.2d 90, cert. denied, 409 U.S. 1013, 93 S.Ct. 455, 34 L.Ed.2d 307, reh. denied, 409 U.S. 1119, 93 S.Ct. 918, 34 L.Ed.2d 704; United States v. Doe, 2 Cir., 405 F.2d 436. We likewise hold that comment on defendant’s refusal to comply with a lawful order to produce handwriting exemplars as an indication of guilt was proper in this case. The disobeyed order did not violate defendant’s Fifth Amendment privilege against self-incrimination, and the trial court was justified in drawing an inference of guilt from defendant’s refusal to comply.
AFFIRMED.
. The cited case requires a comment.
The Sixth Circuit remanded in Mitchell for resentencing holding that a sentence for civil contempt for failure to produce exemplars was limited under 28 U.S.C. § 1826(a) to a period of eighteen months and applied to defendants as well as to recalcitrant witnesses. Mitchell was ordered to be given credit against his principal sentence for time served in excess of eighteen months for his contempt. We reserve this basic question of statutory interpretation for in the case at bar the defendant was given credit for his entire sentence imposed for contempt.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
sc_issue_8
|
07
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue of the Court's decision. Determine the issue of the case on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis.
WEADE et al. v. DICHMANN, WRIGHT & PUGH, INC.
No. 179.
Argued February 1, 1949.
Decided June 27, 1949.
William E. Leahy argued the cause for petitioners. With him on the brief were Michael F. Keogh, J. Robert Carey, Richard H. Love,.Edward L. Breeden, Jr., Walter E. Hoffman and William J. Hughes, Jr.
Leavenworth Colby argued the cause for respondent. With him on the brief were Solicitor General. Perlman, Assistant Attorney General Morison and Paul A. Sweeney.
Mr. Justice Reed
delivered the opinion of the Court,
On August 3, 1945, at Old Point Comfort, Virginia, petitioners, Mrs. Lillian A. Weade and Mrs. Roberta L, Stinemeyer, purchased tickets and embarked as passengers on the Meteor, a steamboat owned by the United States through the War Shipping Administration and operating between Norfolk, Virginia, and Washington, D. C. The ladies retired to their stateroom about 11:00 p. m. and because of the warm weather opened both the glass and the shutter of the window which faced onto the boat deck. During the night the second cook of the Meteor entered the stateroom through the open window and raped. Mrs. Weade, who was sleeping in the lower berth. -Mrs. Stinemeyer suffered fright and shock from witnessing this atrocity. The perpetrator of the crime was subsequently tried, convicted, and executed.
This case involves the liability of a general agent to passengers under a contract similar to that discussed in Cosmopolitan Shipping Co. v. McAllister, ante, p. 783, decided this day. The agency agreement covered passenger boats through an addendum to the contract providing for additional services by the general agent.
Petitioners, Lillian A. Weade and her husband, instituted a civil action for damages against respondent in the United States District Court for the Eastern District of Virginia. The husband alleged as his damages loss of consortium and the expenses of the hospitalization of his wife. Petitioner Mrs. Stinemeyer brought a separate civil action for her damages in the same court. Jurisdiction in both actions was based on diversity of citizenship, and the two civil actions were consolidated for trial. In addition Mrs. Weade filed a libel in admiralty against the United States, which action has been continued pending the final determination of the present proceedings.
The complaint of Mr. and Mrs. Weade alleged, so far as now important, that the steamboat was operated as a common carrier by respondent and that petitioners were injured through the failure of respondent to provide adequate protection for its passengers from the personal misconduct of its employees, and through the failure to. use due care in the selection of reliable, careful, and competent employees. The complaint of Mrs. Stinemeyer is substantially the same as to the specifications of negligence, though it did not assert that respondent itself was a common carrier, but did allege that the injury occurred through the act of respondent’s employees. The respondent’s answer denied that the vessel was operated by it as a common carrier and that the master and crew of the vessel were its employees. The answer further alleged that the vessel was operated by the War Shipping Administration, and that respondent only performed certain services for the owner of the ship as general agent in accordance with the standard service agreement.
The jury as triers of fact in this civil proceeding were instructed as a matter of law that by virtue of the contract respondent was the actual operator of the vessel as a common carrier owing the highest degree of care to its passengers. The trial judge further charged that, as a common carrier, this duty to exercise the highest degree of care extended to all acts of the carrier and included the providing of safe accommodations and protection for passengers, the providing of a suitable number of watchmen, and the selection of competent, careful, and sober employees. The jury returned verdicts for petitioners, and the trial judge denied the motion of the respondent for judgment notwithstanding the verdict, stating as his reason therefor: “While the case of Hust v. Moore-McCormack Lines, Incorporated, 328 U. S. 707, is not precisely in point, it is my view that it is controlling so far as the liability of the defendant is concerned.” On appeal-the Court of Appeals for the Fourth Circuit reversed and held that under Caldarola v. Eckert, 332 U. S. 155, respondent was not the owner pro hac vice in possession and control of the vessel and thus could not be liable as a common carrier for the safety of the passengers. Dichmann, Wright & Pugh v. Weade, 168 F. 2d 914.
Under our holding today , in No. 351, Cosmopolitan Shipping Co. v. McAllister, ante, p. 783, the instructions referred to above were erroneous. Respondent was not the owner pro hac vice, was not a common carrier operating the vessel, and was not the employer of the master or crew. The trial of the' present proceeding revolved around these questions and did not concern the problem of negligence on the part of respondent or of its own agents in handling the ship or créw on voyage as an agent of the United States as distinguished from an employer of the master and crew or owner pro hac vice.
Petitioners urge in point 3 of their brief as a ground for upholding the decision of the trial court that respondent, because of the duties imposed upon it by the General Agency Agreement, was liable as a common carrier as far as the public was concerned. In support of» this contention they point to the duties of the general agent to issue tickets, maintain the vessel in the service directed by the United States, maintain terminals and offices, arrange for the loading and unloading of passengers, arrange for advertising, provision the ship, and procure officers and crew for hire by the master. The performance of such shoreside' duties, however, does not make the agent liable as a common carrier to the public or anyone.
At the insistence of the Navy, the War Shipping Administration in-1945 instituted a nightly service of two steamboats between Norfolk and Washington. The name given to this service was the Washington-Hampton Roads Line, and the Meteor was one of the two vessels employed therein. These two vessels were assigned to respondent as general agent by a passenger addendum to the standard GAA 4-4-42 agreement, under which respondent had been general agent for some twenty cargo vessels. It will be noted that, under Article 3A (f) of the addendum, the general agent was to arrange for the transportation of passengers and to issue tickets for this purpose. The ticket, which is set out in the margin,4 bears the express notation that the steamboat line was “Operated by United States of America, War Shipping Administration,” and. that respondent was serving in the capacity of an agent.
Respondent’s duties were to service the ships and to “arrange for the transportation” of passengers on them. The duty of a common carrier, on the other hand, is to transport for hire whoever employs it. Here the contract called for the actual transportation to bé carried out by the War Shipping Administration. The respondent’s duties ended at the shore ling. Cosmopolitan Shipping Co. v. McAllister, supra. The cases cited by petitioner holding a transportation agent liable as a common carrier involve situations where the actual movement of goods or passengers was carried out by the agent. Under the contract respondent here was not in any way engaged in the carriage of passengers between Norfolk and Washington and had never held itself out to the public as ready to engage in such traffic. As a mere arranger of transportation it does not incur the liability of a common carrier.
Apart from their reliance upon respondent’s control of the vessel on voyage under the agency contract, petitioners further argue that respondent as an agent is independently liable for its negligence in procuring unsuitable crew members. This theory of liability was not relied upon at the trial.. Instructions upon the point were not given or requésted. The court did charge that as principal and operator of the vessel the respondent was responsible for any tort committed by the steamship personnel and as a common carrier was under the duty to exercise the highest degree of care for the safety of the passengers including the selection of personnel. It was upon the basis of respondent’s liability as common carrier that petitioners developed their causes of action, and upon that theory the jury, under the instructions discussed above, returned a verdict in their favor. At the conclusion of the trial judge’s charge, counsel for petitioners stated,. “If your Honor please, we have no exceptions.” Under these circumstances, error cannot be urged as to this point. See Rule 8(1), Supreme Court of the United States;- Rule 51 of the Federal Rules of Civil Procedure; United States v. Atkinson, 297 U. S. 157.
. By the decision below, the trial court was directed to enter a judgment for respondent, which had filed a motion for judgment notwithstanding the verdict. As there were suggestions in the complaint and evidence of alleged liability of respondent to petitioners for respondent’s own negligence while acting as general agent, this direction should not have been given. See Brady v. Roosevelt S. S. Co., 317 U. S. 575. The decision is modified so as to eliminate the direction to enter judgment.
We express no opinion as to what circumstances might fix liability upon the respondent for its own actions as general agent.
Affirmed as modified.
Mr. Justice Black, Mr. Justice Douglas, Mr. Justice Murphy and Mr. Justice Rutledge dissent.
See note 3, infra, and 46 C. F. R. Cum. Supp. § 306.44.
See Cosmopolitan Shipping Co. v. McAllister, ante, p. 783.
“Whereas,, the United States of America (Herein called the ‘United States’) acting by and through the Administrator, War Shipping Administration, and Dichmann, Wright & Pugh, Inc. (herein called the ‘General Agent’) entered into an Agreement (Contract-WSA-4098) dated January 9, 1943 (herein called the ‘Service Agreement’) whereby the United States appointed the General Agent as its agent to manage and conduct the business of cargo vessels assigned to it by the United States; and
“Whereas, it is desirable to have as far as practicable both cargo vessels and passenger vessels operated under the uniform provisions of one agreement.
“Now, Therefore:
“The United States and the General Agent agree that passenger vessels heretofore or hereafter allocated to the General Agent to conduct the business of the vessels as agent of the United States shall be. governed by the provisions of the Service Agreement modified as follows:
“Section 1. Article 3A of the Service Agreement is hereby amended by adding.a provision following subsection (e) thereof as follows:
“‘(f) Shall arrange for the transportation of passengers when so directed, and issue or cause to be issued to such passengers customary passenger tickets. After a uniform passenger ticket shall have been adopted by the United States, such passenger ticket shall be used in all cases as soon as practicable after receipt thereof by the General Agent. Pending the issuance of such uniform passenger ticket, the General Agent may continue to use its customary form of passenger ticket.’
“Section 2. The vessels to which the Service Agreement will apply by operation of this Part II, are as listed on Exhibit B attached hereto and made a part hereof, and such additional vessels as may from time to time be assigned to the General Agent by letter agreement.
■■“In witness whereof . . . .”
“Issued by
“Washington-Hampton Roads Line
“Operated by United States of America, War Shipping Administration
“One First Class Passage
“Norfolk, or Old Point Comfort Va. to Washington, D. C.
“Subject to the Following contract:
“This ticket is void unless officially stamped and dated.
“Baggage valuation is limited- to $100 for and adult and $50 for a child, unless purchaser hereof declares a greater valuation at time baggage is presented for transportation and pays excess valuation charges according to tariff rates, rules and regulations.
“The company will under no circumstances be responsible for any moneys or valuables unless deposited with the Purser on Steamer,, nor will they be responsible for any baggage unless properly checked.
“This ticket is limited for passage within thirty days from date of sale stamped on back.
“Dichmann, Wright & Pugh, Inc., Agent.
“I. S. Walker-, Gen. Passenger Agent.”
Niagara v. Cordes, 21 How. 7, 22; Washington ex rel. Stimson Lumber Co. v. Kuykendall, 275 U. S. 207, 211; United States v. Brooklyn Eastern District Terminal, 249 U. S. 296, 305-306. Cf. Lehigh Valley R. Co. v. United States, 243 U. S. 444; I. C. C. v. Delaware, Lackawanna & Western R. Co., 220 U. S. 235.
United States v. Brooklyn Terminal, 249 U. S. 296; Union Stock Yard Co. v. United States, 308 U. S. 213.
See 2 Restatement, Agency § 358.
Globe Liquor Co. v. San Roman, 332 U. S. 571; Cone v. West Virginia Paper Co., 330 U. S. 212.
Question: What is the issue of the decision?
01. antitrust (except in the context of mergers and union antitrust)
02. mergers
03. bankruptcy (except in the context of priority of federal fiscal claims)
04. sufficiency of evidence: typically in the context of a jury's determination of compensation for injury or death
05. election of remedies: legal remedies available to injured persons or things
06. liability, governmental: tort or contract actions by or against government or governmental officials other than defense of criminal actions brought under a civil rights action.
07. liability, other than as in sufficiency of evidence, election of remedies, punitive damages
08. liability, punitive damages
09. Employee Retirement Income Security Act (cf. union trust funds)
10. state or local government tax
11. state and territorial land claims
12. state or local government regulation, especially of business (cf. federal pre-emption of state court jurisdiction, federal pre-emption of state legislation or regulation)
13. federal or state regulation of securities
14. natural resources - environmental protection (cf. national supremacy: natural resources, national supremacy: pollution)
15. corruption, governmental or governmental regulation of other than as in campaign spending
16. zoning: constitutionality of such ordinances, or restrictions on owners' or lessors' use of real property
17. arbitration (other than as pertains to labor-management or employer-employee relations (cf. union arbitration)
18. federal or state consumer protection: typically under the Truth in Lending; Food, Drug and Cosmetic; and Consumer Protection Credit Acts
19. patents and copyrights: patent
20. patents and copyrights: copyright
21. patents and copyrights: trademark
22. patents and copyrights: patentability of computer processes
23. federal or state regulation of transportation regulation: railroad
24. federal and some few state regulations of transportation regulation: boat
25. federal and some few state regulation of transportation regulation:truck, or motor carrier
26. federal and some few state regulation of transportation regulation: pipeline (cf. federal public utilities regulation: gas pipeline)
27. federal and some few state regulation of transportation regulation: airline
28. federal and some few state regulation of public utilities regulation: electric power
29. federal and some few state regulation of public utilities regulation: nuclear power
30. federal and some few state regulation of public utilities regulation: oil producer
31. federal and some few state regulation of public utilities regulation: gas producer
32. federal and some few state regulation of public utilities regulation: gas pipeline (cf. federal transportation regulation: pipeline)
33. federal and some few state regulation of public utilities regulation: radio and television (cf. cable television)
34. federal and some few state regulation of public utilities regulation: cable television (cf. radio and television)
35. federal and some few state regulations of public utilities regulation: telephone or telegraph company
36. miscellaneous economic regulation
Answer:
|
songer_genresp2
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the second listed respondent. If there are more than two respondents and at least one of the additional respondents has a different general category from the first respondent, then consider the first respondent with a different general category to be the second respondent.
Glenn W. BRICKER, M.D., Plaintiff, Appellant, v. Henry D. CRANE, Jr., M.D., et al., Defendants, Appellees.
No. 72-1154.
United States Court of Appeals, First Circuit.
Heard Sept. 6,1972.
Decided Nov. 7, 1972.
Glenn W. Bricker, M.D., pro. se.
Eugene M. Van Loan, III, Manchester, N. H., Martin L. Gross, Concord, N. H., W. Wright Danenbarger, Manchester, N. H., and Frederic K. Upton, Concord, N. H., with whom Sulloway, Hollis, Godfrey & Soden, Concord, N. H., Devine, Millimet, Stahl & Branch, Sheehan, Phinney, Bass & Green, Paul E. Nourie, Wiggin, Nourie, Sundeen, Pingree & Bigg, Wadleigh, Starr, Peters, Dunn & Kohls, Manchester, N. H., Upton, Sanders & Upton, Concord, N. H., Peter V. Millham, and Wescott, Millham & Dyer, Laconia, N. H., were on briefs, for defendants-appellees.
Before COFFIN, Chief Judge, McENTEE, Circuit Judge, HAMLEY Senior Circuit Judge.
Of the Ninth Circuit, sitting by designation.
McENTEE, Circuit Judge.
This is an appeal from the district court’s dismissal of an action brought under the Civil Rights Act of 1871. Appellant, Dr. Glenn W. Bricker, is a physician duly licensed to practice medicine in the State of New Hampshire. In August 1970, he received notification that the Credentials Committee of defendant Sceva Speare Memorial Hospital had recommended that he not be reappointed to the hospital’s medical staff. Following receipt of this notification, Dr. Bricker made extensive efforts to obtain the minutes of the meeting at which this action had been taken, as well as a specification of the charges against him. Although these efforts were unavailing, he was afforded an appeal procedure which included a personal appearance before the hospital’s Credentials and Joint Conference Committees. Upon being finally informed that he would not be reappointed to the medical staff, Dr. Bricker commenced an action for injunctive relief against the hospital in New Hampshire Superior Court.
In essence, Dr. Bricker alleged that his nonreappointment was due to his activities as a specialist in the field of legal medicine, which sometimes entailed testifying against other doctors in medical malpractice actions. Along with other allegations not relevant here, appellant claimed that the hospital’s failure to provide him with a specification of charges violated his right not to be deprived of property without due process of law and that his nonreappointment to the hospital staff was arbitrary, capricious and unreasonable. In its decision of May 17, 1971, the Grafton County Superior Court ruled that Sceva Speare was a private hospital and that its bylaws did not require that Bricker be given a written specification of the charges against him. The court further held that Bricker had been a disruptive influence at the hospital, that his medico-legal activities had not played a substantial role in his nonreappointment and that the hospital’s actions were therefore neither arbitrary nor unreasonable. The superior court’s findings of fact and rulings of law were affirmed by the Supreme Court of New Hampshire which specifically held that “the acceptance of federal and town funds . has not changed the private character of defendant hospital.” Bricker v. Sceva Speare Memorial Hospital, N.H., 281 A.2d 589, 592, cert. denied, 404 U.S. 995, 92 S.Ct. 535, 30 L.Ed.2d 547 (1971).
After the denial of his petition for a writ of certiorari, Bricker commenced the present action in the district court. In addition to the hospital, he named as defendants certain members of the Sceva Speare Medical Staff and Executive Committee, a number of insurance companies and three attorneys who represented several of the other defendants. His complaint alleged the existence of a broad-based conspiracy to deprive him of his capacity to practice medicine, solely because of his testimony in malpractice cases, in violation of the first, fifth and fourteenth amendments to the United States Constitution, and the Civil Rights Act of 1871. The complaint further alleged that Bricker’s nonreappointment to the Sceva Speare staff was a result of this conspiracy, that he had not been informed of the charges against him prior to his exclusion from the hospital and that the hospital received certain monies from the state and federal governments under the Medicare Program and the Hill-Burton Act. Stripping this complaint to its “federal essentials,” the district court construed it as alleging a deprivation of due process through the defendant hospital’s refusal to provide appellant with the requested specification of charges. While recognizing its jurisdiction under 28 U.S.C. § 1343, the court dismissed the complaint as to all the defendants on various grounds of res judicata, collateral estoppel and failure to state a cause of action. We affirm the decision of the district court.
Our consideration of this appeal must begin with the doctrine of collateral estoppel. Insofar as appellant relies on 42 U.S.C. § 1983, he must demonstrate that, in denying him access to the facilities of Sceva Speare Memorial Hospital, the defendants acted under color of state law. Adickes v. S. H. Kress & Co., 398 U.S. 144, 150, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). It is unnecessary for us to decide whether the reception of funds under the Hill-Burton Act and other government programs was sufficient to imbue the hospital with state action, since that issue has been conclusively determined against the appellant in the state courts.
In P. I. Enterprises, Inc. v. Cataldo, 457 F.2d 1012 (1st Cir. 1972), this court held that the effects of collateral estoppel cannot be avoided by recasting an adjudicated issue in the form of an action under the Civil Rights Act. We noted in that decision the well settled principle that state courts are fully empowered to decide federal claims and that “[a] state court decision on constitutional issues is res judicata to the identical suit brought in federal court.” Id. at 1014. We reiterate that the Civil Rights Act is not a vehicle for collateral attack upon final state court judgments, Coogan v. Cincinnati Bar Association, 431 F.2d 1209 (6th Cir. 1970); Rhodes v. Meyer, 334 F.2d 709, 716 (8th Cir.), cert. denied, 379 U.S. 915, 85 S.Ct. 263, 13 L.Ed.2d 186 (1964), and that a writ of certiorari to the United States Supreme Court is the only method by which such a decision may be reviewed. See Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923). In the present case, appellant unsuccessfully sought such review after voluntarily litigating his federal claims in state court. Understandably disappointed with the outcome of this earlier litigation, he now seeks a happier result in a federal forum. But he is not entitled to an “encore.” Angel v. Bullington, 330 U.S. 183, 191, 67 S.Ct. 657, 91 L.Ed. 832 (1947).
Appellant argues, however, that whatever the effects of collateral estoppel, he has a subsisting cause of action under 42 U.S.C. § WSSiS). Appellant bases this argument on the recent ease of Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971), in which the Supreme Court held that § 1985(3) does not require state action but reaches private conspiracies aimed at the discriminatory deprivation of equal rights under the law. We note the holding of at least one federal court that, when the object of such a conspiracy is the deprivation of rights secured by the fourteenth amendment, a state involvement requirement survives Griffin. See Dombrowski v. Dowling, 459 F.2d 190 (7th Cir. 1972). We need not reach this issue, however, since appellant has failed to meet the minimum requirements for stating a cause of action under this section.
In Griffin v. Breckenridge, supra, the Court recognized “[t]he constitutional shoals that would lie in the path of interpreting § 1985(3) as a general federal tort law.” Id. at 102, 91 S.Ct. at 1798. In order to avoid these difficulties, the Court construed the statute to require, as an element of the cause of action, a showing of some invidiously discriminatory motivation.
“The language requiring intent to deprive of equal protection, or equal privileges and immunities, means that there must be some racial, or perhaps otherwise class-based invidiously discriminatory animus behind the conspirators’ action.” Id. (Citations omitted.)
In his original complaint before the district court, Bricker did not claim that he was the victim of any class-based discrimination. Following the dismissal of his action, he sought to amend the complaint to include an allegation that he was a member of a class of physicians who had been discriminated against because of their testimony in malpractice cases. While the court denied his motion for leave to amend, this additional allegation would not, in any event, suffice to state a cause of action under § 1985(3).
We recognize, of course, that we are generally required to treat the allegations of a complaint as true for purposes of a motion to dismiss. In the instant case, however, appellant has done no more than flatly assert his membership in a novel class which is neither readily recognizable nor among those traditionally protected by the Civil Rights Act. He has alleged no facts supporting the existence of such a class and admitted at oral argument that he might be the only class-member in New Hampshire. Under these circumstances, we hold that appellant has not sufficiently alleged class-based discrimination to state a cause of action under § 1985(3). See Jacobson v. Industrial Foundation of Permian Basin, 456 F.2d 258 (5th Cir. 1972).
Appellant also makes fleeting reference in his brief to 42 U.S.C. § 1985 (2). At no point in his complaint, or even in his motions for leave to amend, did Bricker specifically rely upon that section. He is therefore precluded from asserting it for the first time on appeal since we will not “ [o] rdinarily . reverse a judgment of the district court on a ground not urged upon it or considered.” Bird v. United States, 241 F.2d 516, 520 (1st Cir. 1957).
Appellant’s claim for relief under 42 U.S.C. § 1981 may be similarly disposed of. That section was not a part of the Civil Rights Act of 1871, and was therefore not raised by even the general and conclusory allegations of the complaint.
“If two or more persons in any State or Territory conspire to deter, by force, intimidation, or threat, any party or witness in any court of the United States from attending such court, or from testifying to any matter pending therein, freely, fully, and truthfully, or to injure such party or witness in his person or property on account of his having so attended or testified, or to influence the verdict, presentment, or indictment of any grand or petit juror in any such court, or to injure such juror in his person or property on account of any verdiet, presentment, or indictment lawfully assented to by him, or of his being or having been such juror; or if two or more persons conspire for the purpose of impeding, hindering, obstructing, or defeating, in any manner, the due course of justice in any State or Territory, with intent to deny to any citizen the equal protection of the laws, or to injure him or his property for lawfully enforcing, or attempting to enforce, the right of any person, or class of persons, to the equal protection of the laws; . . .”
Finally, appellant attacks the court’s denial of his several motions for leave to amend his complaint as an abuse of discretion. Our reading of his proposed amendments, however, convinces us that nothing contained therein could cure the deficiencies of his original complaint or overcome the effects of collateral estoppel. Under these circumstances, the district court clearly did not abuse its discretion by refusing to allow the requested amendments. See Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962); 3 J. Moore, Federal Practice ¶15.10, at 958-59 (2d ed. 1968).
Affirmed.
. Although the complaint did not specify any particular section of this act, the district court assumed reliance on 42 Ü.S.C. §§ 1983 and 1985(3).
. Other overt acts allegedly committed by the defendants in furtherance of the conspiracy include (1) causing a license revocation proceeding against the appellant to be filed with the Board of Registration in Medicine for the State of New Hampshire (the proceeding has terminated in Bricker’s favor); (2) causing material alterations in records and suborning perjury in proceedings before state courts and quasi-judicial boards; (3) instituting a double standard at the hospital relative to regulations imposed; and (4) instituting a requirement that all members of the hospital staff carry malpractice insurance and then threatening to cancel and canceEing appellant’s policy solely because of his testimony in a medical malpractice case. The complaint also alleges that the defendants introduced false testimony at a trial in which appellant appeared as an expert medical witness in order to discredit his previous testimony.
. Since “[t]he application of collateral estoppel in federal courts is no longer grounded upon the mechanical requirement of mutuality,” P. I. Enterprises, Inc. v. Cataldo, 457 F.2d 1012, 1015 (1st Cir. 1972), the defense is available to all parties in the present action. See Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971). Even if it could be argued that the insurance companies and defendants-attorneys Soden and Millham were not so related to the hospital as to be entitled to invoke the doctrine, we hold in any case that since there were no allegations of their participation in the challenged denial of reappointment and no other allegations coloring their actions with state law, no cause of action under § 1983 was made out as to those defendants.
. Section 1983 provides: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to he subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”
. Compare Sams v. Ohio Valley General Hospital Association, 413 F.2d 826 (4th Cir. 1969); Smith v. Hampton Training School for Nurses, 360 F.2d 577 (4th Cir. 1966); Citta v. Delaware Valley Hospital, 313 F.Supp. 301 (E.D.Pa.1970) with Place v. Shepherd, 446 F.2d 1239 (6th Cir. 1971); Mulvihill v. Julia L. Butterfield Memorial Hospital, 329 F.Supp. 1020 (S.D.N.Y.1971); Wood v. Hogan, 215 F.Supp. 53 (W.D.Va.1963).
. Appellant seeks to distinguish our decision in P. I. Enterprises by arguing that his constitutional claim was not, in fact, decided by the state courts. He reaches this somewhat startling conclusion by characterizing the New Hampshire courts’ determination of the state action question as decisive only of a preliminary jurisdictional issue. It is, of course, crystal clear that a due process violation can never exist in the absence of state action, ' and appellant’s contention is therefore frivolous.
. “If two or more persons in any State or Territory conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal proteetion of the laws, or of equal privileges and immunities under the laws; or for the purpose of preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws; in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages, occasioned by such injury or deprivation, against any one or more of the conspirators.”
. Section 1985(2) creates a cause of action under the following circumstances:
. See Act of May 31, 1870, ch. 114, § 16, 16 Stat. 144.
Question: What is the 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:
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songer_applfrom
|
J
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court).
EUGENE ASHE ELECTRIC CO. v. COMMISSIONER OF INTERNAL REVENUE.
No. 11330.
Circuit Court of Appeals, Fifth Circuit.
Feb. 12, 1946.
H. C. Wade, of Fort Worth, Tex., for petitioner.
Harold C. Wilkenfeld, Robert N. Anderson, and Louise Foster, Sp. Assts. to the Atty. Gen., Sewall Key, Acting Asst. Atty. Gen., and J. P. Wenchel, Chief Counsel, Bureau of Internal Revenue, and Ro-llin H. Transue, Sp. Atty., Bureau of Internal Revenue, both of Washington, D. C, for respondent.
Before McCORD, WALLER, and LEE, Circuit Judges.
McCORD, Circuit Judge.
This appeal involves income and excess profits taxes of the Eugene Ashe Electric Company for the year 1940.
The important facts are these: The taxpayer is a Texas corporation engaged in the electrical contracting business. In 1940 the- corporation’s capital stock consisted of 250 shares, of which the president, Eugene Ashe, owned 190 shares. On March 20, 1940, the directors of the corporation voted to Ashe a salary of $15,000 for the year 1940, and he was paid the sum of $2,600 during that year; the balance of $12,400 was entered as a credit to his personal account on the books of the company. No payment of this balance was made during the two and one-half month period following the close of the year 1940.
A statement of the taxpayer’s account in the First National Bank of Fort Worth, Texas, disclosed a balance of $11,489.70 on February 21, 1941, and a balance of $5,255.70 on March 15, 1941. The taxpayer also had established credit with the bank in the amount of $100,000 during the years 1940 and 1941. Only $25,000 was drawn against this amount prior to January Í, .1941, and no further withdrawals were made during the following two and one-half months.
The balance sheet of the corporation showed a surplus of $25,654.88 as of January 1, 1941, and cash in the bank of $4,267.29.
The taxpayer filed its return o.n the accrual basis, and Ashe filed his return on the cash receipts basis. For the year in question Ashe did not report the $12,400 as income in his original return, but after having the facts called to his attention by a revenue agent and after talking the matter over with his accountant, he filed an amended return on December 27, 1941, in which the additional amount was reported. The evidence is without dispute that Ashe could have drawn checks on the account of the company without the signature of anyone else.
In reaching' its determination that the salary of the president of the corporation was not a deductible business expense, the Tax Court found that the surplus account did not represent the true financial condition of the corporation, since certain hotel bonds were carried on the books at $10,000, whereas such bonds were admittedly worthless in 1935, and it further found that the corporation made it a practice to carry worthless accounts and notes on the books at face value.
The corporation may not escape the penalty of the statute by claiming constructive payment when in fact no payment had been actually made. For the taxpayer to come within the legislative grace granted by the Congress and to claim and secure the deduction, it must bring its case within the terms of the statute as written. Section 24 (c), Internal Revenue Code, 26 U.S.C.A. Int.Rev.Code, § 24 (c) ; Helvering v. Price, 309 U.S. 409, 60 S.Ct. 673, 84 L.Ed. 836; Massachusetts Mutual Life Ins. Co. v. United States, 288 U.S. 269, 270, 275, 53 S.Ct. 337, 77 L.Ed. 739; Eckert v. Burnet, 283 U.S. 140, 141, 51 S.Ct. 373, 75 L.Ed. 911; White v. United States, 305 U.S. 281, 292, 59 S.Ct. 179, 83 L.Ed. 172; Deputy v. DuPont, 308 U.S. 488, 493, 60 S.Ct. 363, 84 L.Ed. 416; New Colonial Ice Co. v. Helvering, 292 U.S. 435, 440, 54 S.Ct. 788, 78 L.Ed. 1348; P. G. Lake v. Commissioner, 5 Cir., 148 F.2d 898; Quinn v. Commissioner, 5 Cir., 111 F.2d 372; Hart v. Commissioner, 1 Cir., 54 F.2d 848.
The decision of the Tax Court is Affirmed.
Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)?
A. Trial (either jury or bench trial)
B. Injunction or denial of injunction or stay of injunction
C. Summary judgment or denial of summary judgment
D. Guilty plea or denial of motion to withdraw plea
E. Dismissal (include dismissal of petition for habeas corpus)
F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict)
G. Appeal of post settlement orders
H. Not a final judgment: interlocutory appeal
I. Not a final judgment: mandamus
J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment
K. Does not fit any of the above categories, but opinion mentions a "trial judge"
L. Not applicable (e.g., decision below was by a federal administrative agency, tax court)
Answer:
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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
Catherine M. STURGEON, Plaintiff-Appellant, v. AVON PRODUCTS, INC., Defendant-Appellee.
No. 77-1574.
United States Court of Appeals, Seventh Circuit.
Argued Nov. 9, 1977.
Decided Feb. 21, 1978.
Ronald G. Isaac, Indianapolis, Ind., for plaintiff-appellant.
J. Alan Lips, Cincinnati, Ohio, Martha S. West, Indianapolis, Ind., for defendant-appellee.
Before TONE and WOOD, Circuit Judges, and WYZANSKI, Senior District Judge.
The Honorable Charles E. Wyzanski, Jr., Senior District Judge of the United States District Court for the District of Massachusetts, is sitting by designation
TONE, Circuit Judge.
The issue is whether 29 U.S.C. § 633(b), the provision of the Age Discrimination in Employment Act of 1967 for deferral of a federal action until 60 days after the commencement of proceedings under state law, precluded the plaintiff from filing this action because she had not first sought redress in an Indiana proceeding. We hold that it did not, because it appears that no redress was available under state law. A contrary ruling of the District Court is therefore reversed.
Plaintiff was discharged from her employment as a district manager of the defendant. Before discharging her, defendant’s management tried to persuade her to take early retirement, as she was entitled to do under the company’s retirement and pension plan. When she refused to do so, she was fired. The company has continued to offer her early retirement benefits, but she has refused to submit the requisite application.
After notifying the United States Department of Labor of her intention to pursue her remedy under the Age Discrimination in Employment Act, the Department issued a letter authorizing her to sue. Thereafter, without having instituted any proceeding under Indiana law, she commenced this action.
Defendant moved to dismiss the action on the ground that plaintiff had failed to comply with 29 U.S.C. § 633(b). Plaintiff contended that she had no state remedy because of the exception in the Indiana Age Discrimination Act for employees qualified for benefits under an employer retirement or pension plan. Ind.Code § 22-9-2-10. She also contended that § 633(b) “is not jurisdictional” and therefore did not preclude the federal court from assuming jurisdiction despite her failure to file a state complaint.
The court held that § 633(b) “is a jurisdictional prerequisite to actions like the one here,” and that “[ejven though plaintiff believed she was within an exception to the Indiana statute, the federal act requires her to have at least attempted to seek her state remedies before resorting to federal jurisdiction.”
29 U.S.C. § 633(b) provides in pertinent part as follows:
In the case of an alleged unlawful practice occurring in a State which has a law prohibiting discrimination in employment because of age and establishing or authorizing a State authority to grant or seek relief from such discriminatory practice, no suit may be brought under sec-. tion 626 of this title before the expiration of sixty days after proceedings have been commenced under the State law, unless such proceedings have been earlier terminated: .
To decide this case we need to reach only the related questions of whether the plaintiff had any remedy under Indiana law in view of her retirement rights and, if not, whether § 633(b) required her to seek redress under that law. If these questions are answered in the negative, it is unnecessary to decide whether pursuing an available state remedy for 60 days is a prerequisite to an action under § 633(b).
The exception in the Indiana act on which plaintiff relies is as follows:
Employees excepted. These provisions shall not apply ... to a person who is qualified for benefits under the terms or conditions of an employer retirement or pension plan or system.
Ind.Code § 22-9-2-10.
Although conceding, as we have noted, the plaintiff’s eligibility for benefits under the employer pension plan if she chooses to apply for them, the defendant argues that she was nevertheless not “qualified” for benefits within the meaning of the Indiana provision. First, it is argued that the exemption does not apply to “persons like Sturgeon who were forcibly terminated from employment.” This is a strange interpretation, since if the termination were voluntary it could hardly be challenged even absent the exemption.
Second, it is said that the exemption should be read to apply only when the employee has “already fulfilled all prerequisites for vesting of retirement rights,” one of which was applying for the benefits. We think the Indiana legislature would not have chosen the language used in § 22-9-2-10 if its intention was to give a discharged employee who is entitled to pension benefits a choice of either applying for benefits or proceeding under the act.
Nor does it appear that § 22-9-2-10 of the Indiana act was intended to apply only to compulsory retirement terms applicable to all employees of a given age. If that were its meaning it would be redundant, for another provision of the act exempts “compulsory retirement requirements for any class of employees at an age or ages less than sixty-five [65] years.” Ind.Code § 22-9-2-11.
The adjective “qualified” in § 22-9-2-10 means, we think, “entitled” or “eligible,” and does not require that the employee have completed the paperwork necessary to assert her right. Plaintiff was therefore qualified under the defendant’s plan.
. [3] Although § 633(b) does not in terms require that the plaintiff’s claim be within the coverage of the state law prohibiting age discrimination in employment and establishing a state authority through which relief may be sought, it must be interpreted to do so by implication. There would be no purpose in requiring a plaintiff to commence proceedings under a state law which did not apply to the claim being asserted.
We need not decide whether, if the plaintiff’s claim were cognizable under the Indiana act, § 633(b) would make it a condition to maintaining a federal action that she first proceed under state law for 60 days, or would merely require that if she had elected to commence a state proceeding it must have been pending for 60 days before the federal action may be filed. This is a question on which courts have disagreed. Compare, e. g., Goger v. H. K. Porter Co., 492 F.2d 13, 15-16 (3d Cir. 1974), with Vazquez v. Eastern Airlines, Inc., 405 F.Supp. 1353, 1357 (D.P.R.1975); see Bertrand v. Orkin Exterminating Co., 419 F.Supp. 1123, 1124-1127 (N.D.Ill.1976); cf. Moore v. Sunbeam Corp., 459 F.2d 811, 821 (7th Cir. 1972). Nor need we decide whether, as the plaintiff argues, even if § 633(b) requires prior resort to the state remedy (even though no state action has been filed) equitable considerations should be invoked to permit the action to proceed. Cf. Goger v. H. K. Porter Co., supra, 492 F.2d at 16-17; Bertrand v. Orkin Exterminating Co., supra, 419 F.Supp. at 1129-1130; Skoglund v. Singer Co., 403 F.Supp. 797, 801-803 (D.N.H.1975).
The judgment is reversed and the case is remanded with directions to deny the motion to dismiss and to conduct appropriate further proceedings.
. The plan is not before us, but defendant’s brief concedes plaintiff’s eligibility under the plan.
Question: What is the nature of the counsel for the respondent?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer:
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sc_issue_1
|
22
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue of the Court's decision. Determine the issue of the case on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis.
SPENCER v. TEXAS.
No. 68.
Argued October 17-18, 1966.
Decided January 23, 1967.
Michael D. Matheny, by appointment of the Court, post, p. 896, argued the cause for appellant in No. 68. With him on the brief was Joe B. Goodwin. Tom, R. Scott argued the cause and filed briefs for petitioner in No. 69. Emmett Colvin, Jr., argued the cause for petitioner in No. 70. With him on the brief were Charles W. Tessmer and Clyde W. Woody.
Leon Douglas argued the cause for appellee in No. 68. With him on the brief were Waggoner Carr, Attorney General of Texas, and Hawthorne Phillips, First Assistant Attorney General. Mr. Phillips argued the cause for respondent in No. 69. With him on the briefs were Mr. Carr, T. B. Wright, Executive Assistant Attorney General, and Lonny F. Zwiener, Gilbert J. Pena and Howard M. Fender, Assistant Attorneys General. Mr. Fender argued the cause for respondent in No. 70. With him on the brief were Messrs. Carr, Phillips, Wright, Pena and Zwiener.
T. W. Bruton, Attorney General, pro se, and Ralph Moody, Deputy Attorney General, filed a brief for the Attorney General of North Carolina, as amicus curiae, in No. 69.
Together with No. 69, Bell v. Texas, on certiorari to the Court of Criminal Appeals of Texas, argued October 17, 1966, and No. 70, Reed v. Beto, Corrections Director, on certiorari to the United States Court of Appeals for the Fifth Circuit, argued, October 18, 1966.
Mr. Justice Harlan
delivered the opinion of the Court.
Texas, reflecting widely established policies in the criminal law of this country, has long had on its books so-called recidivist or habitual-criminal statutes. Their effect is to enhance the punishment of those found guilty of crime who are also shown to have been convicted of other crimes in the past. The three cases at hand challenge the procedures employed by Texas in the enforcement of such statutes.
Until recently, and at the time of the convictions before us, the essence of those procedures was that, through allegations in the indictment and the introduction of proof respecting a defendant’s past convictions, the jury trying the pending criminal charge was fully informed of such previous derelictions, but was also charged by the court that such matters were not to be taken into account in assessing the defendant’s guilt or innocence under the current indictment.
The facts in the cases now here are these. In Spencer (No. 68), the petitioner was indicted for murder, with malice, of his common-law wife. The indictment alleged that the defendant had previously been convicted of murder with malice, a factor which if proved would entitle the jury to sentence the defendant to death or to prison for not less than life under Texas Pen. Code Art. 64, n. 1, supra, whereas if the prior conviction was not proved the jury could fix the penalty at death or a prison term of not less than two years, see Texas Pen. Code Art. 1257. Spencer made timely objections to the reading to the jury of that portion of the indictment, and objected as well to the introduction of evidence to show his prior conviction. The jury was charged that if it found that Spencer had maliciously killed the victim, and that he had previously been convicted of murder with malice, the jury was to “assess his punishment at death or confinement in the penitentiary for life.” The jury was instructed as well that it should not consider the prior conviction as any evidence of the defendant’s guilt on the charge on which he was being tried. Spencer was found guilty and sentenced to death.
In Bell (No. 69), the petitioner was indicted for robbery, and the indictment alleged that he had been previously convicted of bank robbery in the United States District Court for the Southern District of Texas. Bell moved to quash the indictment on the ground, similar to that in Spencer, that the allegation and reading to the jury of a prior offense was prejudicial and would deprive him of a fair trial. Similar objections were made to the offer of. documentary evidence to prove the prior conviction. The court’s charge to the jury stated that the prior conviction should not be considered in passing upon the issue of guilt or innocence on the primary charge. The sentencing procedure in this non-capital case was somewhat different from that in Spencer. The jury was instructed that if it found the defendant guilty only of the present robbery charge, it could fix his sentence at not less than five years nor more than life. See Texas Pen. Code Art. 1408. But if it found that Bell had also been previously convicted as alleged in the indictment, it should bring in a verdict of guilty of robbery by assault and a further finding that the allegations “charging a final conviction for the offense of bank robbery are true.” The jury so found, and the judge fixed punishment, set by law for such a prior offender, at life imprisonment in the penitentiary. See Texas Pen. Code Art. 62, note 1, supra.
The Reed case (No. 70), involving a third-offender prosecution for burglary, see Texas Pen. Code Art. 63, n. 1, supra, entailed the same practice as followed in Bell.
The common and sole constitutional claim made in these cases is that Texas’ use of prior convictions in the current criminal trial of each petitioner was so egregiously unfair upon the issue of guilt or innocence as to offend the provisions of the Fourteenth Amendment that no State shall “deprive any person of life, liberty, or property, without due process of law . . . .” We took these cases for review, 382 U. S. 1022, 1023, 1025, because the courts of appeals have divided on the issue. For reasons now to follow we affirm the judgments below.
The road to decision, it seems to us, is clearly indicated both by what the petitioners in these cases do not contend and by the course of the authorities in closely related fields. No claim is made here that recidivist statutes are themselves unconstitutional, nor could there be under our cases. Such statutes and other enhanced-sentence laws, and procedures designed to implement their underlying policies, have been enacted in all the States, and by the Federal Government as well. See, e. g., 18 U. S. C. § 2114; Fed. Rule Crim. Proc. 32 (c)(2); D. C. Code §22-104 (1961). Such statutes, though not in the precise procedural circumstances here involved, have been sustained in this Court on several occasions against contentions that they violate constitutional strictures dealing with double jeopardy, ex post facto laws, cruel and unusual punishment, due process, equal protection, and privileges and immunities. Moore v. Missouri, 159 U. S. 673; McDonald v. Massachusetts, 180 U. S. 311; Graham v. West Virginia, 224 U. S. 616; Gryger v. Burke, 334 U. S. 728; Oyler v. Boles, 368 U. S. 448.
Nor is it contended that it is unconstitutional for the jury to assess the punishment to be meted out to a defendant in a capital or other criminal case, or to make findings as to whether there was or was not a prior conviction even though enhanced punishment is left to be imposed by the judge. The States have always been given wide leeway in dividing responsibility between judge and jury in criminal cases. Hallinger v. Davis, 146 U. S. 314; Maxwell v. Dow, 176 U. S. 581; cf. Chandler v. Fretag, 348 U. S. 3; Giaccio v. Pennsylvania, 382 U. S. 399, 405, n. 8.
Petitioners do not even appear to be arguing that the Constitution is infringed if a jury is told of a defendant's prior crimes. The rules concerning evidence of prior offenses are complex, and' vary from jurisdiction to jurisdiction, but they can be summarized broadly. Because such evidence is generally recognized to have potentiality for prejudice, it is usually excluded except when it is particularly probative in showing such things as intent, Nye & Nissen v. United States, 336 U. S. 613, Ellisor v. State, 162 Tex. Cr. R. 117, 282 S. W. 2d 393; an element in the crime, Doyle v. State, 59 Tex. Cr. R. 39, 126 S. W. 1131; identity, Chavira v. State, 167 Tex. Cr. R. 197, 319 S. W. 2d 115; malice, Moss v. State, 364 S. W. 2d 389; motive, Moses v. State, 168 Tex. Cr. R. 409, 328 S. W. 2d 885; a system of criminal activity, Haley v. State, 87 Tex. Cr. R. 519, 223 S. W. 202; or when the defendant has raised the issue of his character, Michelson v. United States, 335 U. S. 469, Perkins v. State, 152 Tex. Cr. R. 321, 213 S. W. 2d 681; or when the defendant has testified and the State seeks to impeach his credibility, Giacone v. State, 124 Tex. Cr. R. 141, 62 S. W. 2d 986.
Under Texas law the prior convictions of the defendants in the three cases before the Court today might have been admissible for any one or more of these universally accepted reasons. In all these situations, as under the recidivist statutes, the jury learns- of prior crimes committed by the defendant, but the conceded possibility of prejudice is believed to be outweighed by the validity of the State’s purpose in permitting introduction of the evidence. The defendants’ interests are protected by limiting instructions, see Giacone v. State, supra, and by the discretion residing with the trial judge to limit or forbid the admission of particularly prejudicial evidence even though admissible under an accepted rule of evidence. See Spears v. State, 153 Tex. Cr. R. 14, 216 S. W. 2d 812; 1 Wigmore, Evidence § 29a (3d ed. 1940); Uniform Rule of Evidence 45; Model Code of Evidence, Rule 303.
This general survey sufficiently indicates that the law of evidence, which has been chiefly developed by the States, has evolved a set of rules designed to reconcile the possibility that this type of information will have some prejudicial effect with the admitted usefulness it has as a factor to be considered by the jury for any one of a large number of valid purposes. The evidence itself is usually, and in recidivist cases almost always, of a documentary kind, and in the cases before us there is no claim that its presentation was in any way inflammatory. Compare Marshall v. United States, 360 U. S. 310. To say the United States Constitution is infringed simply because this type of evidence may be prejudicial and limiting instructions inadequate to vitiate prejudicial effects, would make inroads into this entire complex code of state criminal evidentiary law, and would threaten other large areas of trial jurisprudence. For example, all joint trials, whether of several codefendants or of one defendant charged with multiple offenses, furnish inherent opportunities for unfairness when evidence submitted as to one crime (on which there may be an acquittal) may influence the jury as to a totally different charge. See Delli Paoli v. United States, 352 U. S. 232; cf. Opper v. United States, 348 U. S. 84; Krulewitch v. United States, 336 U. S. 440. This type of prejudicial effect is acknowledged to inhere in criminal practice, but it is justified on the grounds that (1) the jury is expected to follow instructions in limiting this evidence to its proper function, and (2) the convenience of trying different crimes against the same person, and connected crimes against different defendants, in the same trial is a valid governmental interest.
Such an approach was in fact taken by the Court in Michelson v. United States, 335 U. S. 469. There, in a federal prosecution, the Government was permitted to cross-examine defense witnesses as to the defendant’s character and to question them about a prior conviction. The Court, recognizing the prejudicial effect of this evidence, noted that “limiting instructions on this subject are no more‘difficult to comprehend or apply than those upon various other subjects,” id., at 485, and held that this Court was not the best forum for developing rules of evidence, and would, therefore, not proscribe the longstanding practice at issue. A fortiori, this reasoning applies in the cases before us today which arise not under what has been termed the supervisory power of this Court over proceedings in the lower federal courts, see Cheff v. Schnackenberg, 384 U. S. 373, but in the form of a constitutional claim that would require us to fashion rules of procedure and evidence in state courts. It is noteworthy that nowhere in Michelson did the Court or dissenting opinions approach the issue in constitutional terms.
It is contended nonetheless that in this instance the Due Process Clause of the Fourteenth Amendment requires the exclusion of prejudicial evidence of prior convictions even though limiting instructions are given and even though a valid state purpose — enforcement of the habitual-offender statute — is served. We recognize that the use of prior-crime evidence in a one-stage recidivist trial may be thought to represent a less cogent state interest than does its use for other purposes, in that other procedures for applying enhancement-of-sentence statutes may be available to the State that are not suited in the other situations in which such evidence is introduced. We do not think that this distinction should lead to a different constitutional result.
Cases in this Court have long proceeded on the premise that the Due Process Clause guarantees the fundamental elements of fairness in a criminal trial. See, e. g., Tumey v. Ohio, 273 U. S. 510; Betts v. Brady, 316 U. S. 455; cf. Gideon v. Wainwright, 372 U. S. 335; see Estes v. Texas, 381 U. S. 532; Sheppard v. Maxwell, 384 U. S. 333; cf. Griffin v. Illinois, 351 U. S. 12. But it has never been thought that such cases establish this Court as a rule-making organ for the promulgation of state rules of criminal procedure. And none of the specific provisions of the Constitution ordains this Court with such authority. In the face of the legitimate state purpose and the long-standing and widespread use that attend the procedure under attack here, we find it impossible to say that because of the possibility of some collateral prejudice the Texas procedure is rendered unconstitutional under the Due Process Clause as it has been interpreted and applied in our past cases. As Mr. Justice Cardozo had occasion to remark, a state rule of law “does not run foul of the Fourteenth Amendment because another method may seem to our thinking to be fairer or wiser or to give a surer promise of protection to the prisoner at bar.” Snyder v. Massachusetts, 291 U. S. 97, 105. See also Buchalter v. New York, 319 U. S. 427.
Petitioners’ reliance on Jackson v. Denno, 378 U. S. 368, is misplaced. There the Court held unconstitutional the New York procedure leaving to the trial jury alone the issue of the voluntariness of a challenged confession, an area of law that has been characterized by the development of particularly stiff constitutional rules. See Rogers v. Richmond, 365 U. S. 534; Miranda v. Arizona, 384 U. S. 436. The Court held that a judicial ruling was first required to determine whether as a matter of law — federal constitutional law — the confession could be deemed voluntary. This requirement of a threshold hearing before a judge on the federal question of voluntariness lends no solid support to the argument made here — that a two-stage jury trial is required whenever a State seeks to invoke an habitual-offender statute. It is true that the Court in Jackson supported its holding by reasoning that a general jury verdict was not a “reliable” vehicle for determining the issue of voluntariness because jurors might have difficulty in separating the issues of voluntariness from that of guilt or innocence. But the emphasis there was on protection of a specific constitutional right, and the Jackson procedure was designed as a specific remedy to ensure that an involuntary confession was not in fact relied upon by the jury. In the procedures before us, in contrast, no specific federal right — such as that dealing with confessions — is involved; reliance is placed solely on a general “fairness” approach. In this area the Court has always moved with caution before striking down state procedures. It would be extravagant in the extreme to take Jackson as evincing a general distrust on the part of this Court of the ability of juries to approach their task responsibly and to sort out discrete issues given to them under proper instructions by the judge in a criminal case, or as standing for the proposition that limiting instructions can never purge the erroneous introduction of evidence or limit evidence to its rightful purpose. Compare Opper v. United States, 348 U. S. 84; Leland v. Oregon, 343 U. S. 790.
It is fair to say that neither the Jackson ease nor any other due process decision of this Court even remotely supports the proposition that the States are not free to enact habitual-offender statutes of the type Texas has chosen and to admit evidence during trial tending to prove allegations required under the statutory scheme.
Tolerance for a spectrum of state procedures dealing with a common problem of law enforcement is especially appropriate here. The rate of recidivism is acknowledged to be high, a wide variety of methods of dealing with the problem exists, and experimentation is in progress. The common-law procedure for applying recidivist statutes, used by Texas in the cases before us, which requires allegations and proof of past convictions in the current trial, is, of course, the simplest and best known procedure. Some jurisdictions deal with the recidivist issue in a totally separate proceeding, see, e. g., Oyler v. Boles, 368 U. S. 448, and as already observed (n. 2, supra) Texas to some extent has recently changed to that course. In some States such a proceeding can be instituted even after conviction on the new substantive offense, see Ore. Rev. Stat. § 168.040 (1959); Graham v. West Virginia, 224 U. S. 616. The method for determining prior convictions varies also between jurisdictions affording a jury trial on this issue, e. g., Fla. Stat. Ann. § 775.11 (1965); and those leaving that question to the court, see, e. g., Fed. Rule Crim. Proc. 32 (a); Mo. Rev. Stat. §556.280 (2) (1959). Another procedure, used in Great Britain and Connecticut, see Coinage Offences Act, 1861, 24 & 25 Viet., c. 99; State v. Ferrone, 96 Conn. 160, 113 A. 452, requires that the indictment allege both the substantive crime and the prior conviction, that both parts be read to the defendant prior to trial, but that only the allegations relating to the substantive crime be read to the jury. If the defendant is convicted, the prior-offense elements are then read to the jury which considers any factual issues raised. Yet another system relies upon the parole authorities to withhold parole in accordance with their findings as to prior convictions. See, e. g., N. J. Stat. Ann. § 30:4-123.12 (1964). And within each broad approach described, other variations occur.
A determination of the “best” recidivist trial procedure necessarily involves a consideration of a wide variety of criteria, such as which method provides most adequate notice to the defendant and an opportunity to challenge the accuracy and validity of the alleged prior convictions, which method best meets the particular jurisdiction’s allocation of responsibility between court and jury, which method is best accommodated to the State’s established trial procedures, and of course which method is apt to be the least prejudicial in terms of the effect of prior-crime evidence on the ultimate issue of guilt or innocence. To say that the two-stage jury trial in the English-Connecticut style is probably the fairest, as some commentators and courts have suggested, and with which we might well agree were the matter before us in a legislative or rule-making context, is a far cry from a constitutional determination that this method of handling the problem is compelled by the Fourteenth Amendment. Two-part jury trials are rare in our jurisprudence; they have never been compelled by this Court as a matter of constitutional law, or even as a matter of federal procedure. With recidivism the major problem that it is, substantial changes in trial procedure in countless local courts around the country would be required were this Court to sustain the contentions made by these petitioners. This we are unwilling to do. To take such a step would be quite beyond the pale of this Court’s proper function in our federal system. It would be a wholly unjustifiable encroachment by this Court upon the constitutional power of States to promulgate their own rules of evidence to try their own state-created crimes in their own state courts, so long as their rules are not prohibited by any provision of the United States Constitution, which these rules are not. The judgments in these cases are
Affirmed.
The recidivist statutes here involved are Articles 62, 63, and 64 of the Texas Pen. Code (1952).
Article 62 provides: “If it be shown on the trial of a felony less than capital that the defendant has been before convicted of the same offense, or one of the same nature, the punishment on such second or other subsequent conviction shall be the highest which is affixed to the commission of such offenses in ordinary cases.”
Article 63 provides: “Whoever shall have been three times convicted of a felony less than capital shall on such third conviction be imprisoned for life in the penitentiary.”
Article 64 provides: “A person convicted a second time of any offense to which the penalty of death is affixed as an alternate punishment shall not receive on such second conviction a less punishment than imprisonment for life in the penitentiary.”
These procedures were embodied in Texas Code Crim. Proe. Art. 642 (1941), providing as follows: “A jury being impaneled in any criminal action, the cause shall proceed in the following order: 1. The indictment or information shall be read to the jury by the attorney prosecuting. ... 4. The testimony on the part of the State shall be offered.” By judicial gloss it appears that, at least in noncapital cases, a defendant by stipulating his prior convictions could keep knowledge of them away from the jury. See Pitcock v. State, 367 S. W. 2d 864. But see the decision below in Spencer, 389 S. W. 2d 304, for the inapplicability of the stipulation rule in eapital eases. In the view we take of the constitutional issue before us we consider it immaterial whether or not that course was open to any of the petitioners. Subsequent to the present convictions Texas has passed a new law respecting the procedure governing recidivist cases, the effect of which seems to be that except in capital cases the jury is not given the recidivist issue until it has first found the defendant guilty under the principal charge. Texas Code Crim. Proc. Art. 36.01, effective January 1, 1966. Since these cases were all tried under the older procedure, the new statute is not before us.
The question of whether Spencer is properly here as an appeal, a matter which we postponed to consideration of the merits, is a tangled one. See Dahnke-Walker Milling Co. v. Bondurant, 257 U. S. 282; Hart & Wechsler, The Federal Courts and the Federal System 565-567 (1953). Rather than undertake to resolve it, we think it more profitable to dismiss this appeal, treat it as a petition for certiorari, 28 U. S. C. § 2103, and grant the petition, particularly as there is pending in the Court Spencer's timely filed alternative petition for certiorari, which has been held to await the outcome of this appeal. Accordingly we have in this opinion referred to Spencer as a “petitioner.”
The Reed case, unlike the Spencer and Bell cases which come to us from the Court of Criminal Appeals of Texas, is here from a judgment of the United States Court of Appeals for the Fifth Circuit affirming the District Court’s dismissal of a writ of habeas corpus on the ground that the Texas recidivist procedure did not offend the United States Constitution. 343 F. 2d 723.
The Third Circuit in United States v. Banmiller, 310 F. 2d 720, held a similar Pennsylvania procedure, when applied in capital cases, unconstitutional. The Fourth Circuit held a comparable Maryland recidivist practice unconstitutional in all cases. Lane v. Warden, 320 F. 2d 179. The Fifth Circuit in Breen v. Beto, 341 F. 2d 96, and again in the Reed case before us today, 343 F. 2d 723, and the Eighth Circuit in Wolfe v. Nash, 313 F. 2d 393, have held such procedures constitutional. The Ninth Circuit in Powell v. United States, 35 F. 2d 941, sustained the procedure in the context of a second offense under § 29 of the National Prohibition Act, 41 Stat. 316.
See annotations at 58 A. L. R. 20, 82 A. L. R. 345, 79 A. L. R. 2d 826; Note, Recidivist Procedures, 40 N. Y. U. L. Rev. 332 (1965).
These Texas cases reflect the rules prevailing in nearly all common-law jurisdictions. See generally McCormick, Evidence §§ 157-158 (1954); 1 Wharton’s Criminal Evidence §§221-243 (Anderson ed. 1955); 1 Wigmore, Evidence §§ 215-218 (3d ed. 1940 and 1964 Supp.); Note, Other Crimes Evidence at Trial, 70 Yale L. J. 763 (1961). For the English rules, substantially similar, see Cross, Evidence 292-333 (2d ed. 1963). Recent commentators have criticized the rule of general exclusion, and have suggested a broader range of admissibility. Model Code of Evidence, Rule 311; Carter, The Admissibility of Evidence of Similar Facts, 69 L. Q. Rev. 80 (1953), 70 L. Q. Rev. 214 (1954); Note, Procedural Protections of the Criminal Defendant, 78 Harv. L. Rev. 426, 435-451 (1964). For the use of this type of evidence in continental jurisdictions, see Glanville Williams, The Proof of Guilt 181 (2d ed. 1958); 1 Wigmore, supra, § 193.
Indeed the most recent scholarly study of jury behavior does not sustain the premise that juries are especially prone to prejudice when prior-crime evidence is admitted as to credibility. Kalven & Zeisel, The American Jury (1966). The study contrasts the effect of such evidence on judges and juries and concludes that “Neither the one nor the other can be said to be distinctively gullible or skeptical.” Id., at 180.
See “Careers in Crime,” a statistical survey collected in Uniform Crime Reports for the United States — 1965, p. 27 (Dept, of Justice, 1966). The Statistical Abstract of the United States, 1966, reveals that 62% of prisoners committed to federal prisons in the year ending June 30, 1965, had been previously committed. Id., at 163.
For a survey and analysis of the various recidivist procedures, see Note, Recidivist Procedures, 40 N. Y. U. L. Rev. 332 (1965); see also Note, The Pleading and Proof of Prior Convictions in Habitual Criminal Prosecutions, 33 N. Y. U. L. Rev. 210 (1958).
Texas juries have had authority to impose punishment since 1846, but in all but 11 States this power is held by the judge. See Reid, The Texas Code of Criminal Procedure, 44 Tex. L. Rev. 983, 1008-1009 (1966).
See, e. g., Lane v. Warden, 320 F. 2d 170; Note, 40 N. Y. U. L. Rev. 332, 348 (1965). Other commentators have cautioned against a too hasty adoption of the two-stage trial. See the Second Circuit decision in United States v. Curry, 358 F. 2d 904, 914-915, where the court discussed the procedure as it applied in federal capital cases, and concluded: “Given the many considerations which may affect the necessity for a two-stage trial in each case, and considering the questionable desirability of this untested technique, we think it best to leave this question to the discretion of the trial court.” See also the discussion of the practical and administrative disadvantages of such a procedure in Frady v. United States, 121 U. S. App. D. C. 78, 108-109, 348 F. 2d 84, 114-115 (dissenting opinion). We have been presented with no positive information concerning actual experience with a separate penalty procedure that would bear on a decision to impose it upon all the States as a matter of constitutional law. One study suggests that as a practical matter such a procedure has not proved helpful to defendants: “The California experience, dating back to 1957, has rather been that defense counsel have often neglected to prepare adequately for the penalty phase and have exhibited a lack of sophistication concerning what facts should be advanced as mitigating. Apparently, the approach of defense lawyers has been to devote the bulk of their efforts to the substantive issue of guilt and to relegate the penalty phase to a minor role. On the other hand, the prosecution has taken complete advantage of the penalty phase and has attempted to marshal and to present to the jury all of the aggravating circumstances that exist.” Note, Executive Clemency in Capital Cases, 39 N. Y. U. L. Rev. 136, 167 (1964).
In cases where, as in Spencer, a jury itself fixes the penalty, the effect of the emphasis in The Chief Justice’s separate opinion upon the use of a stipulation would in reality be to require, as a matter of federal constitutional law, a two-stage jury trial. For a stipulation no less than evidentiary proof would bring the fact of prior convictions before the trial jury.
Question: What is the issue of the decision?
01. involuntary confession
02. habeas corpus
03. plea bargaining: the constitutionality of and/or the circumstances of its exercise
04. retroactivity (of newly announced or newly enacted constitutional or statutory rights)
05. search and seizure (other than as pertains to vehicles or Crime Control Act)
06. search and seizure, vehicles
07. search and seizure, Crime Control Act
08. contempt of court or congress
09. self-incrimination (other than as pertains to Miranda or immunity from prosecution)
10. Miranda warnings
11. self-incrimination, immunity from prosecution
12. right to counsel (cf. indigents appointment of counsel or inadequate representation)
13. cruel and unusual punishment, death penalty (cf. extra legal jury influence, death penalty)
14. cruel and unusual punishment, non-death penalty (cf. liability, civil rights acts)
15. line-up
16. discovery and inspection (in the context of criminal litigation only, otherwise Freedom of Information Act and related federal or state statutes or regulations)
17. double jeopardy
18. ex post facto (state)
19. extra-legal jury influences: miscellaneous
20. extra-legal jury influences: prejudicial statements or evidence
21. extra-legal jury influences: contact with jurors outside courtroom
22. extra-legal jury influences: jury instructions (not necessarily in criminal cases)
23. extra-legal jury influences: voir dire (not necessarily a criminal case)
24. extra-legal jury influences: prison garb or appearance
25. extra-legal jury influences: jurors and death penalty (cf. cruel and unusual punishment)
26. extra-legal jury influences: pretrial publicity
27. confrontation (right to confront accuser, call and cross-examine witnesses)
28. subconstitutional fair procedure: confession of error
29. subconstitutional fair procedure: conspiracy (cf. Federal Rules of Criminal Procedure: conspiracy)
30. subconstitutional fair procedure: entrapment
31. subconstitutional fair procedure: exhaustion of remedies
32. subconstitutional fair procedure: fugitive from justice
33. subconstitutional fair procedure: presentation, admissibility, or sufficiency of evidence (not necessarily a criminal case)
34. subconstitutional fair procedure: stay of execution
35. subconstitutional fair procedure: timeliness
36. subconstitutional fair procedure: miscellaneous
37. Federal Rules of Criminal Procedure
38. statutory construction of criminal laws: assault
39. statutory construction of criminal laws: bank robbery
40. statutory construction of criminal laws: conspiracy (cf. subconstitutional fair procedure: conspiracy)
41. statutory construction of criminal laws: escape from custody
42. statutory construction of criminal laws: false statements (cf. statutory construction of criminal laws: perjury)
43. statutory construction of criminal laws: financial (other than in fraud or internal revenue)
44. statutory construction of criminal laws: firearms
45. statutory construction of criminal laws: fraud
46. statutory construction of criminal laws: gambling
47. statutory construction of criminal laws: Hobbs Act; i.e., 18 USC 1951
48. statutory construction of criminal laws: immigration (cf. immigration and naturalization)
49. statutory construction of criminal laws: internal revenue (cf. Federal Taxation)
50. statutory construction of criminal laws: Mann Act and related statutes
51. statutory construction of criminal laws: narcotics includes regulation and prohibition of alcohol
52. statutory construction of criminal laws: obstruction of justice
53. statutory construction of criminal laws: perjury (other than as pertains to statutory construction of criminal laws: false statements)
54. statutory construction of criminal laws: Travel Act, 18 USC 1952
55. statutory construction of criminal laws: war crimes
56. statutory construction of criminal laws: sentencing guidelines
57. statutory construction of criminal laws: miscellaneous
58. jury trial (right to, as distinct from extra-legal jury influences)
59. speedy trial
60. miscellaneous criminal procedure (cf. due process, prisoners' rights, comity: criminal procedure)
Answer:
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sc_issue_9
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32
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue of the Court's decision. Determine the issue of the case on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis.
WACHOVIA BANK, NATIONAL ASSOCIATION v. SCHMIDT et al.
No. 04-1186.
Argued November 28, 2005
Decided January 17, 2006
Ginsburg, J., delivered the opinion of the Court, in which all other Members joined, except Thomas, J., who took no part in the consideration or decision of the case.
Andrew L. Frey argued the cause for petitioner. With him on the briefs were Charles A. Rothfeld, Evan M. Tager, and Robert W. Fuller III
Sri Srinivasan argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Clement, Assistant Attorney General Keisler, Deputy Solicitor General Hungar, Michael S. Raab, Julie L. Williams, Daniel R Stipano, and Douglas B. Jordan.
James R. Gilreath argued the cause for respondents. With him on the brief was John P. Freeman.
Briefs of amici curiae urging reversal were filed for the American Bankers Association by Gregory F. Taylor; for the Clearing House Association L. L. C. by David B. Tulchin and Michael M. Wiseman; and for JPMorgan Chase Bank, N. A., by Carter G. Phillips, Eric A. Shumsky, and Bradley J Johnson.
Justice Ginsburg
delivered the opinion of the Court.
This case concerns the citizenship, for purposes of federal-court diversity jurisdiction, of national banks, i. e., corporate entities chartered not by any State, but by the Comptroller of the Currency of the U. S. Treasury. Congress empowered federal district courts to adjudicate civil actions between “citizens of different States” where the amount in controversy exceeds $75,000. 28 U. S. C. § 1332(a)(1). A business organized as a corporation, for diversity jurisdiction purposes, is “deemed to be a citizen of any State by which it has been incorporated” and, since 1958, also “of the State where it has its principal place of business.” § 1332(c)(1). State banks, usually chartered as corporate bodies by a particular State, ordinarily fit comfortably within this prescription. Federally chartered national banks do not, for they are not incorporated by “any State.” For diversity jurisdiction purposes, therefore, Congress has discretely provided that national banks “shall ... be deémed citizens of the States in which they are respectively located.” § 1348.
The question presented turns on the meaning, in § 1348’s context, of the word “located.” Does it signal, as the petitioning national bank and the United States, as amicus curiae, urge, that the bank’s citizenship is determined by the place designated in the bank’s articles of association as the location of its main office? Or does it mean, in addition, as respondents urge and the Court of Appeals held, that a national bank is a citizen of every State in which it maintains a branch?
Recognizing that “located” is not a word of “enduring rigidity,” Citizens & Southern Nat. Bank v. Bougas, 434 U. S. 35, 44 (1977), but one that gains its precise meaning from context, we hold that a national bank, for § 1348 purposes, is a citizen of the State in which its main office, as set forth in its articles of association, is located. Were we to hold, as the Court of Appeals did, that a national bank is additionally a citizen of every State in which it has established a branch, the access of a federally chartered bank to a federal forum would be drastically curtailed in comparison to the access afforded state banks and other state-incorporated entities. Congress, we are satisfied, created no such anomaly.
I
Petitioner Wachovia Bank, National Association (Wacho-via), is a national banking association with its designated main office in Charlotte, North Carolina. Wachovia operates branch offices in many States, including South Carolina.
The litigation before us commenced when plaintiff-respondent Daniel G. Schmidt III and others, citizens of South Carolina, sued Wachovia in a South Carolina state court for fraudulently inducing them to participate in an illegitimate tax shelter. Shortly thereafter, Wachovia filed a petition in the United States District Court for the District of South Carolina, seeking to compel arbitration of the dispute. As the sole basis for federal-court jurisdiction, Wachovia alleged the parties’ diverse citizenship. See 28 U. S. C. § 1332. The District Court denied Wachovia’s petition on the merits; neither the parties nor the court questioned the existence of federal subject-matter jurisdiction. On appeal, a divided Fourth Circuit panel determined that the District Court lacked diversity jurisdiction over the action; it therefore vacated the judgment and instructed the District Court to dismiss the case.
The Court of Appeals’ majority observed that Wachovia’s citizenship for diversity purposes is controlled by §1348, which provides that “national banking associations” are “deemed citizens of the States in which they are respectively located.” As the panel majority read §1348, Wachovia is “located” in, and is therefore a “citizen” of, every State in which it maintains a branch office. Thus Wachovia’s branch operations in South Carolina, in the majority’s view, rendered the bank a citizen of South Carolina. Given the South Carolina citizenship of the opposing parties, the majority concluded that the matter could not be adjudicated in federal court. 388 F. 3d 414, 432 (CA4 2004).
Circuit Judge King dissented. He read § 1348 and its statutory precursors to provide national banks with “the same access to federal courts as that accorded other banks and corporations.” Id., at 434. On his reading, Wachovia is a citizen only of North Carolina, the State in which its main office is located, not of every State in which it maintains a branch office; accordingly, he concluded, Wachovia’s petition qualified for federal-court adjudication.
We granted certiorari to resolve the disagreement among Courts of Appeals on the meaning of § 1348. 545 U. S. 1113 (2005). Compare Horton v. Bank One, N. A., 387 F. 3d 426, 429, 431 (CA5 2004) (for § 1348 purposes, “a national bank is not ‘located’ in, and thus [is] not a citizen of, every state in which it has a branch”; rather, the provision retains “jurisdictional parity for national banks vis-a-vis state banks and corporations”), and Firstar Bank, N. A. v. Faul, 253 F. 3d 982, 993-994 (C A7 2001) (same), with 388 F. 3d, at 432 (§ 1348 renders national bank a citizen, not only of the State in which its main office is located, but also of every State in which it has branch operations), and World Trade Center Properties, LLC v. Hartford Fire Ins. Co., 345 F. 3d 154, 161 (CA2 2003) (dictum) (same).
II
When Congress first authorized national banks in 1863, it specified that any “suits, actions, and proceedings by and against [them could] be had” in federal court. See Act of Feb. 25, 1863, § 59,12 Stat. 681. National banks thus could “sue and be sued in the federal district and circuit courts solely because they were national banks, without regard to diversity, amount in controversy or the existence of a federal question in the usual sense.” Mercantile Nat. Bank at Dallas v. Langdeau, 371 U. S. 555, 565-566 (1963). State banks, however, like other state-incorporated entities, could initiate actions in federal court only on the basis of diversity of citizenship or the existence of a federal question. See Petri v. Commercial Nat. Bank of Chicago, 142 U. S. 644, 648-649 (1892).
Congress ended national banks’ automatic qualification for federal jurisdiction in 1882. An enactment that year provided in relevant part:
“[T]he jurisdiction for suits hereafter brought by or against any association established under any law providing for national-banking associations ... shall be the same as, and not other than, the jurisdiction for suits by or against banks not organized under any law of the United States which do or might do banking business where such national-banking associations may be doing business when such suits may be begun[.]” Act of July 12, 1882, §4, 22 Stat. 163.
Under this measure, national banks could no longer invoke federal-court jurisdiction solely “on the ground of their Federal origin,” Petri, 142 U. S., at 649; instead, for federal jurisdictional purposes, Congress placed national banks “on the same footing as the banks of the state where they were located,” Leather Manufacturers’ Bank v. Cooper, 120 U. S. 778, 780 (1887).
In 1887 revisions to prescriptions on federal jurisdiction, Congress replaced the 1882 provision on jurisdiction over national banks and first used the “located” language today contained in § 1348. The 1887 provision stated in relevant part:
“[A]ll national banking associations established under the laws of the. United States shall, for the purposes of all actions by or against them, real, personal or mixed, and all suits in equity, be deemed citizens of the States in which they are respectively located; and in such cases the circuit and district courts shall not have jurisdiction other than such as they would have in cases between individual citizens of the same State.” Act of Mar. 3, 1887, §4, 24 Stat. 554-555 (emphasis added).
Like its 1882 predecessor, the 1887 Act “sought to limit. . . the access of national banks to, and their suability in, the federal courts to the same. extent to which non-national banks [were] so limited.” Langdeau, 371 U. S., at 565-566.
In the Judicial Code of 1911, Congress combined two formerly discrete provisions on proceedings involving national banks, but retained without alteration the clause deeming national banks to be “citizens of the States in which they are respectively located.” Act of Mar. 3, 1911, §24 (Sixteenth), 36 Stat. 1091-1093. Finally, as part of the 1948 Judicial Code revision, Congress enacted § 1348 in its current form. Act of June 25,1948,62 Stat. 933. The provision now reads:
“The district courts shall have original jurisdiction of any civil action commenced by the United States, or by direction of any officer thereof, against any national banking association, any civil action to wind up the affairs of any such association, and any action by a banking association established in the district for which the court is held, under chapter 2 of Title 12, to enjoin the Comptroller of the Currency, or any receiver acting under his direction, as provided by such chapter.
“All national banking associations shall, for the purposes of all other actions by or against them, be deemed citizens of the States in which they are respectively located.” 28 U.S.C. §1348.
Ill
The Fourth Circuit panel majority advanced three principal reasons for deciding that Wachovia is “located” in, and therefore a “citizen” of, every State in which it maintains a branch office. First, consulting dictionaries, the Court of Appeals observed that “[i]n ordinary parlance” the term “located” refers to “physical presence in a place.” 388 F. 3d, at 416-417 (internal quotation marks omitted). Banks have a physical presence, the Fourth Circuit stated, wherever they operate branches. Id., at 417. Next, the court noted, “Section 1348 uses two distinct terms to refer to the presence of a banking association: ‘established’ and ‘located.’” Id., at 419. “To give independent meaning” to each word, the court said, “it is most reasonable to understand the place where a national bank is ‘established’ torrefer to a bank’s charter location, and to understand the place where it is ‘located’ to refer to the place or places where it has a physical presence.” Ibid. Finally, the Court of Appeals stressed that in Citizens & Southern Nat. Bank v. Bougas, 434 U. S. 35 (1977), this Court interpreted the term “located” in the former venue statute for national banks, see 12 U. S. C. § 94 (1976 ed.), as encompassing any county in which a bank maintains a branch office. 388 F. 3d, at 419-420. Reasoning that “the jurisdiction and venue statutes pertain to the same subject matter, namely the amenability of national banking associations to suit in federal court,” the panel majority concluded that, “under the in pari materia canon[,] the two statutes should be interpreted” consistently. Id., at 422.
IV
None of the Court of Appeals’ rationales persuade us to read § 1348 to attribute to a national bank, for diversity jurisdiction purposes, the citizenship of each State in which the bank has established branch operations. First, the term “located,” as it appears in the National Bank Act, has no fixed, plain meaning. In some provisions, the word unquestionably refers to a single place: the site of the banking association’s designated main office. See, e. g., 12 U. S. C. § 52 (national bank’s capital stock certificates must state “the name and location of the association”); § 55 (requiring notice of sale of capital stock “in a newspaper of the city or town in which the bank is located”); §75 (bank’s regular annual shareholders’ meeting shall be rescheduled when it “falls on a legal holiday in the State in which the bank is located”); § 182 (requiring publication of a notice of dissolution “in the city or town in which the association is located”). In other provisions, “located” apparently refers to or includes branch offices. See, e.g., §36(j) (defining “branch” to include “any branch place of business located in any State”); §85 (limiting interest rate charged by national bank to “rate allowed by the laws of the State, Territory, or District where the bank is located”) (construed in OCC Interpretive Letter No. 822 (Feb. 17,1998), [1997-1998 Transfer Binder] CCH Fed. Banking L. Rep. ¶ 81-265, pp. 90, 256-90, 257); 12 U. S. C. §92 (permitting national bank to act as insurance agent in certain circumstances when bank is “located and doing business in any place the population of which does not exceed five thousand inhabitants”) (construed in 12 CFR §7.1001 (2005)) Recognizing the controlling significance of context, we stated in Bougas, regarding a venue provision for national banks: “There is no enduring rigidity about the word ‘located.’” 434 U. S., at 44.
Second, Congress may well have comprehended the words “located” and “established,” as used in §1348, not as contrasting, but as synonymous or alternative terms. When Congress enacted §1348’s statutory predecessors and then §1348 itself, a national bank was almost always “located” only in the State in which it was “established,” under any of the proffered definitions of the two words, for, with rare exceptions, a national bank could not operate a branch outside its home State. Not until 1994 did Congress provide broad authorization for national banks to establish branches across state lines. See supra, at 307-308, n. 2. Congress’ use of the two terms may be best explained as a coincidence of statutory codification. Deriving from separate provisions enacted in different years, the word “established” appearing in the first paragraph of § 1348 and the word “located” appearing in the second paragraph were placed in the same section in the 1911 revision of the Judicial Code. See supra, at 311-312, n. 6. The codifying Act explicitly stated that “so far as [its provisions were] substantially the same as existing statutes,” they should “be construed as continuations thereof, and not as new enactments.” Act of Mar. 3, 1911, §294, 36 Stat. 1167; see Federal Intermediate Credit Bank of Columbia v. Mitchell, 277 U. S. 213, 216 (1928) (1911 Act “was in substance a reenactment of the earlier provisions in respect of . . . jurisdiction”). In this light, it is unsurprising that, in 1947, this Court, referring to a national bank’s citizenship under the 1911 Act, used the terms “located” and “established” as alternatives. See Cope v. Anderson, 331 U. S. 461, 467 (“For jurisdictional purposes, a national bank is a ‘citizen’ of the state in which it is established or located[.]”).
Finally, Bougas does not control the meaning of §1348. In that case, we construed a now-repealed venue provision, which stated that actions against national banking associations could be filed “in any State, county, or municipal court in the county or city in which said association [was] located.” 434 U. S., at 35-36 (quoting 12 U. S. C. §94 (1976 ed.)). We held that, for purposes of this provision, a national bank was located, and venue was therefore proper, in any county or city where the bank maintained a branch office. 434 U. S., at 44-45. True, under the in pari materia canon of statutory construction, statutes addressing the same subject matter generally should be read “ ‘as if they were one law.’ ” Erlenbaugh v. United States, 409 U. S. 239, 243 (1972) (quoting United States v. Freeman, 3 How. 556, 564 (1845)). But venue and subject-matter jurisdiction are not concepts of the same order. Venue is largely a matter of litigational convenience; accordingly, it is waived if not timely raised. See, e. g., Heckler v. Ringer, 466 U. S. 602, 638, n. 26 (1984) (Stevens, J., concurring in judgment in part and dissenting in part); Fed. Rule Civ. Proc. 12(h)(1). Subject-matter jurisdiction, on the other hand, concerns a court’s competence to adjudicate a particular category of cases; a matter far weightier than venue, subject-matter jurisdiction must be considered by the court on its own motion, even if no party raises an objection. See, e.g., Mansfield, C. & L. M. R. Co. v. Swan, 111 U. S. 379, 382 (1884); Fed. Rule Civ. Proc. 12(h)(3).
Cognizant that venue “is primarily a matter of choosing a convenient forum,” Leroy v. Great Western United Corp., 443 U. S. 173, 180 (1979), the Court in Bougas stressed that its “interpretation of [the former] § 94 [would] not inconvenience the bank or unfairly burden it with distant litigation,” 434 U. S., at 44, n. 10. Subject-matter jurisdiction, however, does not entail an assessment of convenience. It poses a “whether,” not a “where” question: Has the Legislature empowered the court to hear cases of a certain genre? See Neirbo Co. v. Bethlehem Shipbuilding Corp., 308 U. S. 165, 168 (1939) (“This basic difference between the court’s power and the litigant’s convenience is historic in the federal courts.”). Thus, the considerations that account for our decision in Bougas are inapplicable to §1348, a prescription governing subject-matter jurisdiction, and the Court of Appeals erred in interpreting § 1348 in pari materia with the former § 94.
Significantly, this Court’s reading of the venue provision in Bougas effectively aligned the treatment of national banks for venue purposes with the treatment of state banks and corporations. For venue in suits against state banks and other state-created corporations typically lies wherever those entities have business establishments. See 19 C. J. S., Corporations § 717(d), p. 374, n. 30 (1990) (under typical state venue statutes, “[v]enue in action against domestic corporation can be laid in any county where corporation maintains branch office”). By contrast, the Court of Appeals’ decision in the instant case severely constricts national banks’ access to diversity jurisdiction as compared to the access available to corporations generally. For purposes of diversity, a corporation surely is not deemed a citizen of every State in which it maintains a business establishment. See Pennsylvania R. Co. v, St. Louis, A. & T. H. R. Co., 118 U. S. 290, 295-296 (1886). Rather, under 28 U. S. C. § 1332(c)(1), a corporation is “deemed to be a citizen” only of “any State by which it has been incorporated” and “of the State where it has its principal place of business.” Accordingly, while corporations ordinarily rank as citizens of at most 2 States, Wachovia, under the Court of Appeals’ novel citizenship rule, would be a citizen of 16 States. See FDIC Institution Directory, available at http://www2.fdic.gov/idasp/main.asp. Bougas does not call for this anomalous result.
V
To summarize, “located,” as its appearances in the banking laws reveal, see supra, at 313-314, is a chameleon word; its meaning depends on the context in and purpose for which it is used.
In the context of venue, “located” may refer to multiple places, for a venue prescription, e. g., the current and former 12 U. S. C. § 94, presupposes subject-matter jurisdiction and simply delineates where within a given judicial system a case may be maintained. See, e. g., 28 U. S. C. § 1391(c) (for venue purposes, “a corporation shall be deemed to reside in any judicial district in which it is subject to personal jurisdiction at the time the action is commenced”).
In contrast, in § 1348, “located” appears in a prescription governing not venue but federal-court subject-matter jurisdiction. Concerning access to the federal court system, § 1348 deems national banks “citizens of the States in which they are respectively located.” There is no reason to suppose Congress used those words to effect a radical departure from the norm. An individual who resides in more than one State is regarded, for purposes of federal subject-matter (diversity) jurisdiction, as a citizen of but one State. See Newman-Green, Inc. v. Alfonzo-Larrain, 490 U. S. 826, 828 (1989) (an individual is deemed a citizen of the State of her domicil); Williamson v. Osenton, 232 U. S. 619, 625 (1914) (domicil is the “technically preeminent headquarters” of a person; “[i]n its nature it is one”). Similarly, a corporation’s citizenship derives, for diversity jurisdiction purposes, from its State of incorporation and principal place of business. § 1332(c)(1). It is not deemed a citizen of every State in which it conducts business or is otherwise amenable to personal jurisdiction. Reading § 1348 in this context, one would sensibly “locate” a national bank for the very same purpose, i. e., qualification for diversity jurisdiction, in the State designated in its articles of association as its main office.
Treating venue and subject-matter jurisdiction prescriptions as in pari materia, 388 F. 3d, at 422-423, the Court of Appeals majority overlooked the discrete offices of those concepts. See supra, at 315-316; cf. Cook, “Substance” and “Procedure” in the Conflict of Laws, 42 Yale L. J. 333, 337 (1933) (“The tendency to assume that a word which appears in two or more legal rules, and so in connection with more than one purpose, has and should have precisely the same scope in all of them, runs all through legal discussions. It has all the tenacity of original sin and must constantly be guarded against.”). The resulting Fourth Circuit decision rendered national banks singularly disfavored corporate bodies with regard to their access to federal courts. The language of § 1348 does not mandate that incongruous outcome, nor does this Court’s precedent.
* * *
For the reasons stated, the judgment of the United States Court of Appeals for the Fourth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Justice Thomas took no part in the consideration or decision of this case.
A national bank, on formation, must designate, in its organization certificate and articles of association, the “place where its operations of discount and deposit are to be carried on.” 12 U. S. C. §22 (Second); see §21; Office of the Comptroller of the Currency, Instructions— Articles of Association, Specific Requirements ¶ 12, available at http:// www.occ.treas.gov/corpbook/forms/articles-conv.doc. (All Internet materials as visited Jan. 13, 2006, and included in Clerk of Court’s case file.) The place so designated serves as the bank’s “main office.” Changes in the location of that office are effected by amendment to the bank’s articles of association. See 12 U. S. C. §§ 21a, 30(b); 12 CFR § 5.40(d)(2)(ii) (2005). The State in which the main office is located qualifies as the bank’s “home State” under the banking laws. 12 U. S. C. § 36(g)(3)(B).
National banks originally lacked authority to operate branch offices. Act of Feb. 25, 1863, §11, 12 Stat. 668. In 1865, Congress enacted an exception permitting a state bank that converted to a national bank to retain its pre-existing branches. Act of Mar. 3, 1865, § 7, 13 Stat. 484. Congress authorized limited branch operations in the bank’s home State in 1927 and 1933. McFadden Act (Branch Banks), 1927, §7(c), 44 Stat. 1228; Glass-Steagall Act, 1933, § 23,48 Stat. 189-190. These Acts, like the 1865 enactment, allowed interstate branching only under narrow “grandfather” provisions. McFadden Act, §7(a)-(b), 44 Stat. 1228; see Girard Bank v. Board of Governors of Fed. Reserve System, 748 F. 2d 838, 840 (CA3 1984) (observing that only two national banks had “grandfathered” interstate branches). Not until 1994 did Congress grant national banks broad authority to establish branch offices across state lines. See Riegle-Neal Interstate Banking and Branching Efficiency Act of 1994, § 101, 108 Stat. 2339. See generally J. Macey, G. Miller, & R. Carnell, Banking Law and Regulation 18 — 19, 23, 32-33 (3d ed. 2001).
Wachovia unsuccessfully moved for rehearing en banc. Six judges voted to grant the rehearing petition, three voted to deny it, and four recused themselves. Thus the petition failed to gamer the required majority of the Circuit’s 13 active judges. No. 03-2061 (CA4, Jan. 28, 2005), App. to Pet. for Cert. 57a-58a
The term “established under” did appear in the 1882 and 1887 formulations, in both texts as synonymous with the term “organized under.” In neither measure is the word used in a locational sense.
Earlier, in 1888, Congress had revised the 1887 prescription by adding as a separate paragraph this caveat: “The provisions of this section shall not be held to affect the jurisdiction of the courts of the United States in cases commenced by the United States or by direction of any officer thereof, or cases for winding up the affairs of any such bank.” Act of Aug. 13, 1888, §4, 25 Stat. 436.
In full, the 1911 text stated:
“The district courts shall have original jurisdiction . . . [o]f all cases commenced by the United States, or by direction of any officer thereof, against any national banking association, and cases for winding up the affairs of any such bank; and of all suits brought by any banking association established in the district for which the court is held, under the provisions of title ‘National Banks,’ Revised Statutes, to enjoin the Comptroller of the Currency, or any receiver acting under his direction, as provided by said title. And all national banking associations established under the laws of the United States shall, for the purposes of all other actions by or against them, real, personal, or mixed, and all suits in equity, be deemed citizens of the States in which they are respectively located.” 36 Stat. 1091-1093.
The first sentence of this formulation merged the 1888 caveat with text, including the word “established,” originally contained in the Act of Dec. 1, 1873, § 629 (Tenth to Eleventh), 18 Stat. 111. The second sentence, including the word “located,” derives from the 1887 formulation.
The Court of Appeals did not overlook these nonuniform uses of the word “located” in various provisions of the National Bank Act. See 388 F. 3d 414, 425 (CA4 2004). Nevertheless, it declared that, in § 1348, “located” unambiguously means “physically present.” Ibid, (internal quotation marks omitted). The court did not say what facilities other than branch offices, for example, storage sites or even automated teller machines, would suffice to establish a bank’s physical presence. Cf Tr. of Oral Arg. 36-37 (counsel for respondents stated that an ATM, although an arguable question, probably would suffice to locate a bank in a State for § 1348 purposes).
Context also matters in assigning meaning to the word “established.” See, e. g., Convention Between the Government of the United States of America and the Government of the United Kingdom of Great Britain and Northern Ireland for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income and on Capital Gains, S. Treaty Doc. No. 107-19, Art. 5, pp. 8-9 (2002) (“For the purposes of this Convention, the term “permanent establishment’ means a fixed place of business through which the business of an enterprise is wholly or partly carried on ....”). Given the character of the proceedings covered by the first paragraph of § 1348, see supra, at 312, one
Question: What is the issue of the decision?
01. comity: civil rights
02. comity: criminal procedure
03. comity: First Amendment
04. comity: habeas corpus
05. comity: military
06. comity: obscenity
07. comity: privacy
08. comity: miscellaneous
09. comity primarily removal cases, civil procedure (cf. comity, criminal and First Amendment); deference to foreign judicial tribunals
10. assessment of costs or damages: as part of a court order
11. Federal Rules of Civil Procedure including Supreme Court Rules, application of the Federal Rules of Evidence, Federal Rules of Appellate Procedure in civil litigation, Circuit Court Rules, and state rules and admiralty rules
12. judicial review of administrative agency's or administrative official's actions and procedures
13. mootness (cf. standing to sue: live dispute)
14. venue
15. no merits: writ improvidently granted
16. no merits: dismissed or affirmed for want of a substantial or properly presented federal question, or a nonsuit
17. no merits: dismissed or affirmed for want of jurisdiction (cf. judicial administration: Supreme Court jurisdiction or authority on appeal from federal district courts or courts of appeals)
18. no merits: adequate non-federal grounds for decision
19. no merits: remand to determine basis of state or federal court decision (cf. judicial administration: state law)
20. no merits: miscellaneous
21. standing to sue: adversary parties
22. standing to sue: direct injury
23. standing to sue: legal injury
24. standing to sue: personal injury
25. standing to sue: justiciable question
26. standing to sue: live dispute
27. standing to sue: parens patriae standing
28. standing to sue: statutory standing
29. standing to sue: private or implied cause of action
30. standing to sue: taxpayer's suit
31. standing to sue: miscellaneous
32. judicial administration: jurisdiction or authority of federal district courts or territorial courts
33. judicial administration: jurisdiction or authority of federal courts of appeals
34. judicial administration: Supreme Court jurisdiction or authority on appeal or writ of error, from federal district courts or courts of appeals (cf. 753)
35. judicial administration: Supreme Court jurisdiction or authority on appeal or writ of error, from highest state court
36. judicial administration: jurisdiction or authority of the Court of Claims
37. judicial administration: Supreme Court's original jurisdiction
38. judicial administration: review of non-final order
39. judicial administration: change in state law (cf. no merits: remand to determine basis of state court decision)
40. judicial administration: federal question (cf. no merits: dismissed for want of a substantial or properly presented federal question)
41. judicial administration: ancillary or pendent jurisdiction
42. judicial administration: extraordinary relief (e.g., mandamus, injunction)
43. judicial administration: certification (cf. objection to reason for denial of certiorari or appeal)
44. judicial administration: resolution of circuit conflict, or conflict between or among other courts
45. judicial administration: objection to reason for denial of certiorari or appeal
46. judicial administration: collateral estoppel or res judicata
47. judicial administration: interpleader
48. judicial administration: untimely filing
49. judicial administration: Act of State doctrine
50. judicial administration: miscellaneous
51. Supreme Court's certiorari, writ of error, or appeals jurisdiction
52. miscellaneous judicial power, especially diversity jurisdiction
Answer:
|
songer_geniss
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous".
UNITED STATES ex rel. CAREY v. KEEPER OF MONTGOMERY COUNTY PRISON et al.
No. 10974.
United States Court of Appeals Third Circuit.
Argued Feb. 2, 1953.
Decided Feb. 27, 1953.
Plarry R. Back, Philadelphia, Pa., for appellant.
Frank P. Lawley, Jr., Asst. Deputy Atty. Gen. of Pa., for appellee.
Before BIGGS, Chief Judge, and GOODRICH and KALODNER, Circuit Judges.
BIGGS, Chief Judge.
On December 1, 1952, an order of the court below was filed refusing to issue a writ of habeas corpus in the relator’s, Carey’s, favor, he having been convicted of a capital crime by the Court of Oyer and Terminer and General Jail Delivery of Montgomery County, Pennsylvania. The relator was sentenced to death and is presently in jail awaiting execution. ' On December 29, 1952, application was made to Chief Judge Kirkpatrick of the court below for a certificate of probable cause and for stay of execution. This application was denied on the same day. On December 30, 1952, a notice of appeal was filed in the court below and on January 6, 1953, an application for a certificate of probable cause and for a stay of execution was made to, and was denied by Judge Maris of this court. On the following day, January 7, 1953, an application for a certificate of probable cause was made to the present writer and to Judge GOODRICH. A certificate of probable cause issued on that date. This court stayed Carey’s execution pending the disposition of the case on appeal. On January 20, 1953, a motion to dismiss the appeal was filed by the State of Pennsylvania. The motion came on for argument in this court on February 2, 1953.
The ground for the motion is based on the failure to comply with Section 2253, Title 28, U.S.C., which in pertinent part reads as follows: “An appeal may not be taken to the court of appeals from the final order in a habeas corpus proceeding where the detention complained of arises out of process issued by a State court, unless the justice or judge who rendered the order or a circuit justice or judge issues a certificate of probable cause.” Rule 73, FRCP, 28 U.S.C., provides that an appeal must be taken within 30 days.
We have found but two cases in point, viz., United States ex rel. Kreuter v. Baldwin, 7 Cir., 49 F.2d 262, and Ex parte Farrell, 1 Cir., 189 F.2d 540. Both authorities hold that the certificate of probable cause is a necessity in order to confer jurisdiction upon the Court of Appeals from the final order in a habeas corpus proceeding where the detention arises out of State court process.
The contention of the relator is that since he made application for a certificate of probable cause to Chief Judge Kirkpatrick within thirty days, he had made all reasonable efforts to comply with the provision of Section 2253. We cannot agree.
We note that the relator had but two days in which to procure a certificate of probable cause from a circuit justice or another judge after his application had been denied by. Chief Judge Kirkpatrick. He waited, however, seven days before making any further application. Moreover, the two days remaining to the relator to procure the certificate within the thirty day period did not include a weekend or a holiday. Upon denial of the application by Chief Judge Kirkpatrick, the relator should have made prompt application to members of this court. A certificate could then have been granted within the thirty day period.
In our opinion the issuance of a certificate is a condition precedent to the perfecting of an appeal and the question is one of jurisdiction. The fact that an application was made within the thirty day period is insufficient to confer jurisdiction upon a court of appeals under the circumstances at bar. It was plainly the intention of Congress to impose strict limitations upon appeals in habeas corpus cases when the detention was by State process. The policy involved is one for Congress and not for the courts.
We conclude that we are without jurisdiction to entertain the appeal and that the certificate of probable cause and stay of execution were improvidently granted.
Accordingly, the appeal will be dismissed for want of jurisdiction and the stay will be vacated..
Question: What is the general issue in the case?
A. criminal
B. civil rights
C. First Amendment
D. due process
E. privacy
F. labor relations
G. economic activity and regulation
H. miscellaneous
Answer:
|
songer_district
|
C
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
UNITED STATES of America, Plaintiff-Appellant, v. Clifford Jerome MILLER and Kathelyn Vandraiss Miller, Defendants-Appellees. UNITED STATES of America, Plaintiff-Appellant, v. Clifford Jerome MILLER, Defendant-Appellee.
Nos. 78-2274, 78-1737, 78-1978 and 78-1979.
United States Court of Appeals, Fifth Circuit.
Dec. 28, 1979.
Rehearing and Rehearing En Banc Denied Feb. 14, 1980.
W. Ray Jahn, Jeremiah Handy, Asst. U. S. Attys., San Antonio, Tex., for plaintiff-appellant in No. 78 — 2274.
LeRoy M. Jahn, Asst. U. S. Atty., San Antonio, Tex., for plaintiff-appellant.
Robert Ramos, Asst. Federal Public Defender, Raymond C. Caballero, El Paso, Tex., for defendant-appellee.
Before COLEMAN, Chief Judge, GOD-BOLD and INGRAHAM, Circuit Judges.
COLEMAN, Chief Judge:
This is a government appeal, 18 U.S.C., § 3731, from the suppression of (1) tangible evidence found in the Miller automobile and (2) Miller’s confessions after he had been arrested and arraigned for having a false driver’s license and an expired automobile inspection sticker. The District Court first suppressed a pistol, rifle, and a portfolio found in the Miller automobile. Later, it suppressed all use of Miller’s correct identity and three confessions which, while voluntary, were thought to be “fruits of the poisonous tree”.
I
The Indictments
On January 9, 1978, Clifford Miller, a previously convicted felon, was indicted in the Pecos Division of the Western District of Texas for possession of a firearm in violation of 18 U.S.C., § 1202(a) Appendix. On January 19, 1978, Clifford Miller and Kathelyn Miller were jointly indicted in the El Paso Division of the Western District for conspiracy to defraud the United States by filing a false social security claim in violation of 18 U.S.C., § 286. Count two of the same indictment charged Kathelyn Miller with the completed substantive offense, in violation of 18 U.S.C., § 287, and Clifford Miller with aiding and abetting that offense. A third indictment was filed in the El Paso Division on March 2,1978, charging Clifford Miller and Kathelyn Miller with mail fraud, in violation of 18 U.S.C., § 1341.
II
The Astonishing Facts
On November 18, 1977, officers of the Texas Department of Public Safety (DPS) set up a routine license and vehicle registration checkpoint adjacent to a Border Patrol checkpoint, a lighted area, on Highway 67, about five miles south of Marfa, Texas. All cars traveling in either direction were stopped for the purpose of checking driver-licenses and motor vehicle registration, a procedure apparently approved in Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (197,9).
Officers at the checkpoint were DPS Officers (Agents) Greer, Kilpatrick, and Maxwell, along with a state highway patrolman, the county sheriff, and several other officers. The checkpoint was set up at noon and operated for twenty-four hours.
Around 8 o’clock p. m., after dark, a 1969 Chrysler, with other cars behind it in the same traffic lane, was stopped in regular traffic. It was driven by an individual who ultimately turned out to be Clifford Jerome Miller. His wife, Mrs. Kathelyn Miller, was also riding on the front seat. The automobile carried Texas license plates and displayed an expired safety inspection sticker.
Miller showed Agent Maxwell a New Mexico temporary driver’s permit, made out to Joseph Rosenfeld, specifying a date of birth and social security number. The document was only a carbon copy of the original and it carried no picture. When Agent Maxwell asked Miller to state his name, birthday, and social security number, Miller said his name was “Rosenfeld” and gave the date of birth listed on the permit. However, he recited a completely different social security number to that appearing on the permit.
Maxwell requested that Miller step to the rear of the vehicle, where he was asked to repeat the information recorded on the temporary license, whereupon he gave the same response. This, of course, alerted the officers to the likelihood that there was something rotten in Denmark.
When asked about the ownership of the Chrysler, Miller stated that he had just purchased it in south Texas from Alfred Phipps. Suspiciously enough, he could provide no bill of sale or other document evidencing that transaction. Whereupon, Maxwell called Officer Greer, who was then checking the first car behind Miller’s, to run a National Crime Information Center (NCIC) check on the permit and the automobile. While Miller was with Greer, and while the dispatcher was being contacted by radio for the desired reports, Maxwell drove the Miller Chrysler off the pavement, out of the highway traffic lane. He parked it at the end of the Border Patrol van, on the shoulder of the road, so that it would not obstruct moving traffic and halt the ongoing checks of other vehicles. Mrs. Miller remained in the car, sitting where she had been, on the passenger side of the front seat. Upon getting into the car for the purpose of moving it off the road, Maxwell saw a Colt’s pistol and holster between the bucket seats, only partially covered with a pillow. He unloaded the pistol and took it to Officer Greer in order that an NCIC check might also be run on it.
When the. NCIC reports came in, Greer told Maxwell that the vehicle was reported as registered to Alfred Phipps, of Alice, Texas, and that there was nothing in the computer on the temporary driver’s license. While all this was going on Miller volunteered that he had “purchased the pistol somewhere up North, and that there was a 30.06 riñe in the back seat that he [Maxwell] could check, also ”.
When Maxwell went back to the car to pick up the rifle he saw a plastic identification holder over the sun visor which, upon examination, contained credit cards issued to an oil company. Without stopping to pick up the rifle, Maxwell took these cards to Greer and then returned for the rifle. When he got back with the rifle he found out that “Rosenfeld” was now claiming to be Phipps. However, “Rosenfeld” gave different “middle names” for Phipps. He said that he had been arrested for DWI in Wyoming, that his driver’s license had been taken away from him, that he knew he couldn’t get a driver’s license using his real name, so he used the name Joseph Rosen-feld to get the New Mexico license. Greer testified that there was a credit card slip with the cards, signed that day with a “Phipps” signature. This signed credit slip was what caused “Rosenfeld” to start claiming that he, in fact, was Phipps. However, the credit card incident is of no materiality to this appeal as Miller has not been indicted on that subject.
In the face of the credit card development, Maxwell went back to the car, where the lady passenger insisted that the driver’s name was Rosenfeld, which Maxwell, of course, knew to be untrue.
The NCIC reported that the rifle had been stolen in El Paso and that the credit cards were also stolen. Upon receipt of that information, Greer arrested “Rosen-feld-Phipps” and gave him his Miranda warnings.
When Maxwell asked the lady passenger for the second time about the identity of the driver of the car and she insisted that he was Rosenfeld, Maxwell looked in the back seat and saw a plastic portfolio behind the driver’s seat which, it turned out, contained several sets of identification and a blue diary. He next searched the trunk of the vehicle, the back seat, and two footlockers on top of the car. Nothing found in the trunk or in the footlockers seems to have been of any evidentiary importance. The diary, when read by Maxwell later that night, opened a trail which caused the discovery of Miller’s true identity. It also led to his identification as the perpetrator of a bizarre insurance fraud.
Although the passenger was not arrested, she went to the jail, but was then taken to the bus station so that she could return home. Meanwhile, Agents Maxwell and Greer examined the blue diary. They then requested that a deputy go to the bus station and get the passenger and return her to the jail where she and the prisoner were questioned about entries in the diary and the driver’s identification. Apparently, they learned nothing from her. She was then permitted to return to the bus station.
The next day after his arrest, the driver was duly arraigned, was again warned of his rights, and bond was set.
On the evening of the arrest and the next morning, Maxwell read through the blue diary and other documents taken from the portfolio. He then called the Mutual of New York Insurance Company (MONY) to try to obtain identifying information. By that call he learned that the automobile driver’s true identity was Clifford Jerome Miller. Maxwell also found out that Mrs. Miller had unsuccessfully sued MONY for $50,000 for life insurance allegedly due for the asserted death of her husband, who at one time had been a MONY employee. He was told that there had been a similar claim against Standard Insurance Company of Oregon. Maxwell confronted “Rosenfeld-Phipps” with this information, meeting first with a denial and then with an admission that the prisoner, in fact, was Clifford J. Miller.
After these conversations, Officer Maxwell called the FBI to advise of the potential mail fraud and social security violations by Miller, and he called an Alcohol, Tobacco, and Firearms (ATF) Agent to report a possible firearm violation. Meanwhile MONY apparently contacted the Standard Insurance Company and notified them that Miller was not dead, but very much alive. Standard Insurance then contacted the Postal Inspector to request a mail fraud investigation in the case.
On November 22, 1977, Miller was arraigned before a Presidio County Justice of the Peace as a “fugitive from El Dorado County, California, Governor’s warrant # 14530”. In his right name Miller signed the arraignment form which fully advised him of his right to counsel, that counsel would be appointed for him if he was too poor to afford a lawyer, that he had a right to remain silent, that he was not required to make a statement, and any statement he did make could be used against him in court, that he had a right to stop interviews or questioning at any time and that he had a right to an examining trial.
On November 29, eleven days after his arrest, still in jail because he could not furnish bail, Miller consented to interviews with agents representing three federal agencies. In each and every instance, Miller was warned of his Miranda rights and signed the waiver form.
Postal Inspector Harmond Clemmons conducted the first interview at 9:00 a. m. Clemmons, stationed in Texas, had been asked by a postal inspector in Oregon to interview Miller. Clemmons had not heard of the diary and knew nothing of its contents. He had only been given an outline of the insurance transactions and been told that Miller was still alive.
Miller told Clemmons that he had purchased the Standard Insurance policy while living in California, prior to moving to El Paso in 1974, where he worked as an agent for MONY. He stated that he started putting his “death plan” together in October of 1975 while in Mexico. On December 2nd or 3rd of that year, he and his wife returned to Mexico, and with the help of a doctor, a judge, and another man, Miller faked a heart attack in a field and was pronounced dead. He stated that his wife did not know about his plan. His “funeral” was the next day.
Miller said he returned to the United States via Laredo, Texas, on December 7, 1975, three or four days after the faked death and funeral, using false identification under the assumed name of Alfred Phipps. Before going to Mexico he had arranged for these false identification papers. He said that two or three months later he contacted his wife to tell her that he was alive and that she should go ahead with the insurance claims on his death. He asked her to send him $2,000 of the insurance money she had already received.
About a week prior to November 29, ATF Agent Jimmy Searles had been briefed by Maxwell, but he was mainly concerned with Miller’s prior conviction and a description of the guns which were in his possession at the time of his arrest. At 10:30 a. m., November 29, Searles interviewed Miller. For the fourth time, Miller was advised of his rights, which he again waived in writing. The statement obtained by Searles dealt only with the firearms and contained no reference to the insurance matter.
Wayne Taylor of the FBI was the third federal officer to interview Miller on November 29. Although Agent Taylor had in his possession all the documents seized in the search, he was not completely familiar with their contents, but the major part of the information he got from Miller was clearly connected with and based on the contents of the diary.
III
The Suppression Rulings
Two suppression hearings were held on the three indictments which had been consolidated for hearing purposes. At the first suppression hearing the District Court made oral findings and rulings. He refused to suppress the statements which Kathelyn Miller made during non-custodial interrogation. He granted the motion to suppress the revolver and rifle and all other tangible evidence recovered from the Miller’s vehicle. A written order was entered on March 10, 1978, but the number on the order was only that of the firearms case (the Pecos Division case).
A second suppression hearing was held on April 28, 1978, partially for the purpose of clarifying the first suppression order and to hear further testimony on the issue of the admissibility of Clifford Miller’s three confessions. The memorandum opinion and order following this hearing were entered on May 30, 1978.
As to Clifford Miller, the Court then suppressed all items seized from the car and all fruits thereof, including the statements elicited from him by agents subsequent to the search (with the exception of two pages of the FBI report) and all evidence of his actual identity. As to Kathelyn Miller, the Court suppressed all items seized during the search of the appellees’ vehicle and all fruits of that search except for her husband’s confession.
The government filed notices of appeal from each of the orders. The cases have been consolidated for consideration here.
IV
The Findings in the District Court The First Hearing
We consider it advisable to copy in toto the oral findings of the District Court after the first (Pecos) suppression hearing:
THE COURT: The factual situation concerning what lead up to the ultimate arrest of Mr. Miller is, I think, probably a perfect example of good police work that is handled carefully, conscientiously but improperly. There’s no question in my mind, . . . that in fact the moving of that automobile led to a chain of events and started a chain of events which sequentially, one to another, left it fairly clear to me that the search was not a proper search.
I don’t have any question at all about the propriety to stop, and I don’t believe the defendant, Mr. Miller, does. I don’t have any question in my mind about the propriety of the asking for the driver’s license, nor the suspicion that the officer had when Mr. Miller gave him, on two different occasions, a Social Security number which was not the one listed on the temporary license. If he had said he couldn’t remember his Social Security number, I think that would have been understandable. But to have obviously known his Social Security number committed to memory and be able to give it to the officers twice, I think, would make any officer suspicious that something was not quite right. I think the officers quite correctly ran the check of the vehicle, on the registration itself, but it came back negative. I think they quite properly tried to run down his driver’s license and any information they could about that. And again, there was nothing that led them any further there.
Then Mr. Maxwell got back in the car, and he got back in without the consent, obviously, of Mr. Miller, and he says that he did. It may have been a ministerial act, and it may have been the most logical and appropriate thing to do, but it seems to the Court that at that point had he not gotten back in the car, he never would have seen the pistol. (Emphasis added by the copier).
Now, if they had had some fear about that car or about — about the people in the' car being a danger to them, I am relatively certain that they would not have left his companion in the car, and they didn’t know who she was at 'the time, didn’t know whether she was his wife, girl friend, or what she was. They left her in the car, and it wasn’t until fifteen or twenty minutes later they took her out, and for her comfort, allowed her to go to the van.
So they saw the pistol. They brought the pistol back and ran the check on it, and it came back negative. And then Mr. Miller volunteered that, “If you’re concerned about that, there’s a thirty ought six in the back of the car”. And Mr. Maxwell testified that he could reach back in the back and obviously saw it and had no difficulty getting it. But he got back in the car then and started going through other things, namely the thing— the visor, the credit cards and at some point — and it’s not clear when — into the portfolio on the back seat that was lying apparently in plain view on the back seat, which, of course, was a rich harvest of things.
I just can’t believe that there was at that time any probable cause for that search. Obviously, they were correct. Obviously, they had hold of a man who is involved in questionable activities, but they didn’t know that at the time. All they suspicioned was they might have a stolen car, and they found they didn’t. They didn’t know what it was, but they knew what it wasn’t.
The oral findings were delivered on March 6, 1978. On March 10, the Court entered a written order suppressing the .38 caliber revolver, the 30.06 caliber rifle, and all other tangible evidence recovered from defendant’s vehicle, “because the Court is of the opinion that the search of defendant’s vehicle was conducted without probable cause to believe that an offense had been committed”.
Nothing was said as to Miller’s volunteering the presence of the rifle or his suggestion that the officers could check it if they wished to do so.
The Second Hearing
A second suppression hearing took place in El Paso on April 28, 1978. This hearing was directed to the various statements given by Miller to various officers who had interviewed him in the jail at Marfa.
The Court then entered another order in which it was held that “[Ajfter the NCIC reports on the vehicle, the defendant’s driver’s permit and the pistol came back as negative, the officers’ search became little more than a fishing expedition”.
The Court further held that:
“[T]he initial intrusion must be justified before the validity of subsequent police conduct of a warrantless search of an automobile can be considered [citing Coolidge v. New Hampshire, 403 U.S. 443 [91 S.Ct. 2022, 29 L.Ed.2d 564] (1971)] but here, although the initial stop was justified, the agents went beyond the permissible scope of intrusion.”
The Court then ordered that:
“All fruits of the search of the defendant’s vehicle, including all items seized therein, are SUPPRESSED” [as to all three indictments against Miller]. The same order was entered as to Miller’s wife on the two indictments in which she was charged.
It was further held that:
“[N]one of the government agents who elicited statements from defendant Clifford Jerome Miller could have done so but for Agent Maxwell’s seizure of the defendant’s diary and his subsequent perusal thereof . . . . The government has shown no attenuation sufficient to destroy the taint which arises out of the illegal search of the defendant’s vehicle and continued through each of the interviews with defendant Clifford Jerome Miller except as to the interview with the FBI Agent Taylor. Agent Taylor’s testimony clearly reflected that, although he had access to the information contained in the diary prior to interviewing the defendant on November 29, 1977, he did not refer to the diary until after the defendant had narrated the events of his past to him.”
It was ordered that the government:
“Shall not attempt to introduce any evidence as to his identity against [Miller] in prosecuting him.”
This ruling was based on the finding that Miller did not voluntarily reveal his identity (emphasis added) and that but for the illegally seized diary and identification cards, Agent Maxwell could not have found whom to contact in order to discover Miller’s actual identity.
It was further held, however, that Kathe-lyn Miller did not have standing to challenge her husband’s statements made while he was in custody, or his identification.
V
The Applicable Law
Since the District Court was of the view that Maxwell’s removal of the Miller car to the shoulder of the road was an act which “poisoned” everything that occurred thereafter, the first inquiry is whether entering the Miller car to get it out of the line of traffic “was unreasonable under the circumstances”, United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977).
We believe that this question should be answered in the negative — moving the car was not unreasonable.
We start from the undisputed premise that the officers were performing a lawful state function, on a public highway, in a lawful manner, State of Delaware v. Prouse, supra.
Neither Miller nor his wife testified in support of the motion to suppress. There was no proof in support of a notion that the officer drove the Miller automobile out of the line of traffic backed up behind it as a pretext for getting an otherwise prohibited look at things inside the vehicle, see United States v. Ceccolini, 435 U.S. 268, 98 S.Ct. 1054, 1062, 55 L.Ed.2d 268 (1978). The absence of such proof is hardly surprising since in the lighted area at the Border Patrol checkpoint it is likely that Maxwell could have seen the pistol by merely looking through the window from the outside. See United States v. Kaiser, 5 Cir., 1977, 545 F.2d 467, 476.
Moreover, it is reasonable that the officers may take any action reasonably necessary and relevant to the operation when it is not a pretext for circumventing constitutional rights. The rationale for getting this car off the highway is no different to allowing an inventory of the contents of an automobile lawfully impounded as the result of an arrest. Moreover, it would have been unreasonable, and likely a public safety hazard, to delay all the vehicles behind the Miller car while his status was being resolved.
Finally, the Millers were exercising no expectations of privacy in the pistol. They did not conceal it when they encountered the roadblock and Mrs. Miller took no steps to conceal it while Miller was being questioned about his driver’s permit and lack of a vehicle title.
Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977), was a case in which two police officers on routine patrol saw the defendant driving an automobile with an expired license plate. The officers stopped the vehicle for the purpose of issuing a traffic summons. The defendant was asked to step out of the car and produce his owner’s card and operator’s license. When the defendant stepped out, a large bulge was seen under his sports jacket, which led to the detection of a .38 caliber revolver loaded with five rounds of ammunition. A motion to suppress the revolver was denied and the Supreme Court affirmed. The Court held that the intrusion caused by asking the defendant to step out of the car could “only be described as de minimis that it hardly rose to the level of a petty indignity. Moreover, the Court held that the mere inconvenience of getting out could not prevail when balanced against legitimate concern for the officers’ safety.
While no question of officer safety entered the instant case, the efficient operation of a roadblock for lawful purposes, along with a reasonable regard for the travel rights and personal safety of other travelers, was involved. It was perfectly natural for the officer to wish to get the car out of the way. Simply moving a lawfully halted vehicle at a checkpoint to the side of the road, when no search is intended or undertaken, is not an infringement of Fourth Amendment rights.
The pistol was in plain view. Following an unbroken line of authority, we have repeatedly held that where the initial intrusion is not unreasonable, the warrantless seizure of inadvertently-discovered evidence in plain view does not offend the Constitution if it is immediately apparent to the police officer that he has evidence before him. See, e. g., United States v. Duckett, 5 Cir., 1978, 583 F.2d 1309.
Duckett was a case in which an automobile had been stopped because the motor vehicle did not have a visible license plate light. The motorist was unable to produce an operator’s license, a vehicle registration form, or any other means of identification. He was arrested. While looking for the vehicle identification number (VIN) on the vehicle, the officer saw two envelopes addressed to someone other than Duckett. Inside an already opened envelope were two United States Treasury checks made payable to someone other than Duckett. We affirmed a denial of suppression of the government checks.
While it was not unlawful for the Millers, as travelers, to have a pistol in their automobile, there was nothing unreasonable about running the NCIC check on it once it had been discovered in plain view. NCIC information on the pistol might well have led to the correct identification of the driver who for two reasons had put his identity in doubt (1) by offering the officers a carbon copy of a temporary driver’s permit with no picture on it (a temporary New Mexico permit for the driver of a car carrying a Texas license plate) and (2) by being unable to furnish any documentary evidence that he, in fact, had title to the automobile.
Neither the removal of the automobile nor the seizure of the pistol for the purpose of having it checked against National records maintained for that very purpose was a violation of constitutional rights. It necessarily follows that when Miller, contemporaneously with the receipt of the report on the pistol, volunteered the information that the rifle was in the car and suggested that the officers could have it checked if they so desired, accepting that suggestion was neither unreasonable nor arbitrary. Even if it had taken a search to locate the rifle on the backseat, which the officers without contradiction denied, Miller had suggested the search.
The officers had not asked Miller if there were other firearms in the automobile. He simply volunteered it. This involved no infringement of Miranda rights.
Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today.
Miranda v. Arizona, 384 U.S. 436, 478, 86 S.Ct. 1602, 1630, 16 L.Ed.2d 694 (1966).
The fact that NCIC had reported the car as registered to one Phipps did not prove that Phipps had sold or loaned it to “Rosen-feld”. Neither did it prove that the man who got out of the car was Phipps. The NCIC report on the temporary driver’s permit offered no information whatever.
In any event, as we appraise the facts, neither the pistol nor the rifle was obtained by what might be considered to be a conventional search. The pistol was in plain view. Miller told the officer where to go get the rifle, negating any necessity for uncovering it by searching for it.
We are compelled to the view that by originally entertaining the idea that moving the car onto the shoulder of the road was itself unlawful and thus unconstitutionally tainted everything which occurred thereafter, the Court fell into the error of suppressing the pistol and the rifle.
We reverse the suppression of the pistol and the rifle and remand the case for trial as to the unlawful possession of these weapons by one previously convicted of a felony.
The Suppression of any Evidence as to Miller’s Identity
We have held that the seizure of the pistol and the rifle did not offend the Fourth Amendment. Accordingly, those weapons were admissible in evidence. However, competent proof of Miller’s actual identity is a necessary predicate to establishing that he is the same person who previously had been convicted of a felony, an essential ingredient of this federal firearms violation. Did the trial court err when it suppressed ail use of Miller’s actual identity?
We shall hold, post, that the seizure of the diary contravened the Fourth Amendment. The diary put the officers on the trail which resulted in the discovery that “Rosenfeld-Phipps” was, in fact, Miller. The District Court was of the opinion that “but for” the use of the tainted diary Miller’s true identity would never have been learned, therefore, it directed that the government “shall not attempt to introduce any evidence as to his identity against [Miller] in prosecuting him”. It suppressed “all use of Miller’s correct identity”. This, of course, stopped the prosecution dead in its tracks.
It must be recognized that from the very outset Miller’s true identity was in question. He had volunteered the presence of the rifle. The NCIC check was run on it prior to, and independently of, the search of the portfolio. The information from the portfolio was not the exclusive source available to the police. Miller had been arrested. His fingerprints were available. The stolen gun could be traced. An elementary investigation would have settled the existence or non-existence of an Alfred H. Phipps in Alice, Texas. It would have been surprising indeed if a reasonably intelligent investigator could not have found someone who knew Miller on sight. Miller’s actual identity might be proved from evidentiary sources having absolutely no connection with the portfolio.
The question then becomes: Where, by unconstitutionally obtained documents, the government learns the identity of a person travelling on the public highway, with a false driver’s permit and attempting to evade identification, is the prosecution thereby foreclosed from producing identity from independent, untainted sources?
Miller’s identity was not dependent on a search and seizure in the usual Fourth Amendment sense. His person was in plain view in a pubic place, voluntarily exposed to the sight of all who wished to see. For the observation of his generally identifying characteristics no search was necessary. What a person knowingly exposes to the public, even in his own home or office, to say nothing of the public highway, is not the subject of Fourth Amendment protection, Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576, 582 (1967).
Miller’s identity was an immutable fact, the same before and after the public encounter. Nothing discovered there or afterwards could alter it. The officers could not seize it like seizing a physical object.
Miller was lawfully in custody and it only remained for the officers to learn his identity by constitutionally admissible means. See United States v. Houltin, 5 Cir., 1978, 566 F.2d 1027.
This situation is governed by what Mr. Justice Holmes wrote in Silverthorne Lumber Company v. United States, 251 U.S. 385, 392, 40 S.Ct. 182, 183, 64 L.Ed. 319 (1920):
Of course this does not mean that the facts thus [unconstitutionally] obtained became sacred and inaccessible. If knowledge of them is gained from an independent source they may be proved like any others . .
This holding was quoted in Nardone v. United States, in Wong Sun v. United States, and again in United States v. Cec-colini.
We hold that Miller’s actual identity may be proved by evidence, if there be any, from sources unconnected with the search of the portfolio and the examination of its contents. To the extent that the order suppressed “any” and “all” evidence of identity, as hereinabove set forth, it will be reversed and the case remanded to the District Court.
We agree, of course, that under the “fruit of the poisonous tree” doctrine none of those involved in the seizure and utilization of the diary itself may be allowed to testify as to Miller’s true identity, although they are certainly free to testify as to the details of the arrest and to identify him in court as the person arrested.
The Firearms Confessions
Miller was lawfully arrested for the possession of the stolen rifle. The statements made to Searles and Greer with reference to the firearms came after Miller had been thoroughly informed of his rights to silence and counsel. Indeed, he specifically declined to give Searles any more information “without my attorney being present”. These statements were obviously voluntary in every respect. The statement to Searles recites Miller’s record of convictions, where and how he obtained the weapons, and how he come to have them with him when stopped near Marfa. Not a word is said of the insurance matters uncovered by the use of the diaries. The statement to Greer confirmed only the story given to Searles as to where he, Miller, had obtained the rifle.
The statements to Searles and Greer should not have been suppressed in their entirety. Only those parts of the confessions in which Miller correctly identified himself as “Clifford Jerome Miller” should be excised. Therefore, except for the identification of Miller, the suppression of the statements given Officers Searles and Greer in connection with the firearms is reversed.
The Search of the Portfolio and the Subsequent Confessions with Reference to the Insurance Frauds
Assuming that the portfolio was Miller’s personal luggage, an assumption which appears to be supported by the evidence, we agree with the defendants that the search of that portfolio did not comply with Fourth Amendment requirements, Arkansas v. Sanders,-U.S.-, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979); United States v. Johnson, 5 Cir., 1979, 588 F.2d 147, 151. The government’s argument that the admissibility of the portfolio contents may be rescued as an “inventory search” simply is not supported by the record. The diary may not be introduced in evidence against Miller.
Miller contends that his subsequent confessions with reference to the insurance frauds were “fruits of the poisonous tree” and that they were correctly suppressed. Here, following a wealth of precedent, we must, at least in part, agree with Miller. Prior to the search of the portfolio none of the officers so much as suspected Miller of the insurance fraud. They were not looking for insurance fraud. The seizure of the diary did not comply with Fourth Amendment requirements. Its contents set in motion the desire of the subsequently investigating officers to obtain statements from him. Postal Inspector Clemmons did not see the diary and did not know of its existence; he, however, had been informed of facts which had been gathered from the diary. It necessarily follows that his use of that information was to exploit it. We cannot say that his lack of knowledge as to the existence of the diary and his failure to have seen it supplied an attenuation sufficient to purge the primary taint. To hold otherwise would open a potentially large loophole for the use of illegally obtained evidence; in other words, “turn the information over to a fellow officer without informing him where it came from”. Obviously, this approach could not pass constitutional muster.
This leaves one final question — was the Clemmons confession “an intervening act of free will that purges the evidence of the taint of the unlawful invasion”?
The Clemmons confession will be annexed to this opinion as an Appendix.
Its opening paragraph states that
Prior to being interviewed, Mr. Miller was advised that I wanted to talk with him about his faked death, the fake death certificate, and the claims filed against his insurance. He was advised of his rights, and he said he had no objections to talking, but he would possibly not answer some questions.
Miller signed the waiver form which will also be appended to this opinion.
At the close of the Clemmons statement, it is recited that “Miller refused to furnish handwriting exemplars”.
Before Miller signed the Clemmons waiver, he had been informed of his right to remain silent and his right to counsel when he had been arraigned on a fugitive warrant from California, on November 22. Twice that same day, November 29, Miller had been informed
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_casetyp1_2-3-3
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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 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 "civil rights - other civil rights".
C.L. TAYLOR, Plaintiff-Appellant, Cross-Appellee, v. TEXGAS CORPORATION, Defendant-Appellee, Cross-Appellant.
No. 86-3670.
United States Court of Appeals, Eleventh Circuit.
Nov. 3, 1987.
Ben R. Patterson, Jerry G. Traynham, Patterson & Traynham, Tallahassee, Fla., for plaintiff-appellant, cross-appellee.
Julius F. Parker, Jr., Tallahassee, Fla., for defendant-appellee, cross-appellant.
Before TJOFLAT and KRAVITCH, Circuit Judges, and TUTTLE, Senior Circuit Judge.
KRAVITCH, Circuit Judge:
C.L. Taylor appeals from the district court’s grant of appellee Texgas Corporation’s Fed.R.Civ.P. 60(b) motion requesting that the court, on the basis of false testimony and newly discovered evidence, modify its earlier judgment. Because appellee has failed to prove fraud with clear and convincing evidence, and because it has not shown that it could not have produced the “newly discovered evidence” prior to the entry of judgment, we vacate the district court’s modification of the earlier judgment.
FACTS
C.L. Taylor was awarded back pay, unpaid overtime, and damages from Texgas Corporation (“Texgas”) following a jury verdict that Texgas had dismissed him in violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621-634, and the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. On appeal, this court determined, citing Goldstein v. Manhattan Industries, Inc., 758 F.2d 1435 (11th Cir.), cert. denied, 474 U.S. 1005, 106 S.Ct. 525, 88 L.Ed.2d 457 (1985), that Taylor also should have been awarded prospective relief in the form of reinstatement or front pay in order “to make [him] whole.” Taylor v. Texgas Corp., No. 85-3305, slip op. at 3 (11th Cir. April 17, 1986), [790 F.2d 87 (Table) ]. This court added, however, that on remand, the district court could consider the disability payments that Taylor had received from Texgas in determining the relief to which Taylor was entitled.
The district court held a hearing on the matter on June 10, 1987, at which Taylor was allowed to testify as to the amount of disability payments he had received. Because the hearing had been noticed as “oral argument,” Texgas initially objected to the introduction of evidence, but subsequently withdrew the objection. It declined, however, to cross examine Mr. Taylor. Following Taylor’s testimony, the court scheduled another hearing on the relief issue and provided the parties the opportunity to submit briefs. Appellant submitted a brief, but appellee failed to do so; nor did appellee present any evidence at the subsequent hearing.
The district court, on July 1, ordered Texgas to reinstate Taylor and pay him the full salary he would have earned from the date of judgment to the date of reinstatement, less the $4,042.40 in disability payments that he had received from Texgas following his discharge. Fifteen days later, appellee filed a motion for relief under Rule 60 of the Federal Rules of Civil Procedure. Texgas contended that the district court’s order granting reinstatement and damages should be amended on the ground of newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial or rehearing, and on the ground of fraud, alleging that Taylor gave untruthful testimony at the June 10 hearing. Specifically, Texgas alleged that Taylor failed to reveal at the June 10 hearing that he had received pension benefits from Texgas after his disability payments had been discontinued.
The district court, after a hearing, found that in addition to the disability benefits, Taylor had received $3,509.82 in pension payments from Texgas’s pension plan, and that he had earned $3,507.24 from other unrelated jobs during the period after his discharge from Texgas. Accordingly, the court modified its prior judgment by deducting the total of those payments, $7,017.06, from the back wages that Tex-gas owed to Taylor. The court, however, never found that Taylor had committed fraud, although it determined that he had been “less than candid;” nor did it find that Texgas could not have discovered this evidence earlier through the exercise of due diligence.
DISCUSSION
A. Jurisdiction
At the time the court entered its July 1 order granting Taylor reinstatement, it retained jurisdiction over the case to award Taylor attorney’s fees and costs. The court’s subsequent order of August 29, modifying the July 1 order, did not dispose of the attorney’s fee issue. Taylor filed a timely notice of appeal from the August 29 order. This court sua sponte raised the question of whether the August 29 order was a final and appealable order as required for our jurisdiction under 28 U.S.C. § 1291, as the district court had not resolved the attorney’s fee issue and had not certified the case pursuant to Fed.R.Civ.P. 54(b).
This circuit follows the rule that “[t]he finality of an order, which determines all the issues except for the award of attorneys’ fees ‘depends on the circumstances of each case.’ ” C.I.T. Corp. v. Nelson, 743 F.2d 774, 775 (11th Cir.1984) (footnote omitted) (quoting McQurter v. City of Atlanta, 724 F.2d 881, 882 (11th Cir.1984)). The court in McQurter reasoned:
When attorney’s fees are similar to costs ... or collateral to an action ... a lack of determination as to the amount does not preclude the issuance of a final, appeal? able judgment on the merits. When, however, the attorney’s fees are an integral part of the merits of the case and the scope of relief, they cannot be characterized as costs or as collateral and their determination is a part of any final, appealable judgment.
724 F.2d at 882 (quoting Holmes v. J. Ray McDermott & Co., 682 F.2d 1143 (5th Cir. 1982), cert. denied, 459 U.S. 1107, 103 S.Ct. 732, 74 L.Ed.2d 956 (1983)).
An award of attorney’s fees under the ADEA is controlled by 29 U.S.C. §§ 216(b), 626(b). See Hedrick v. Hercules, Inc., 658 F.2d 1088, 1096-97 (5th Cir. Unit B 1981). Taylor contends that the district court’s August 29 order was final because an award of attorney’s fees under the ADEA is collateral to the merits. We agree. The statute provides that “[t]he court in [an ADEA] action shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney’s fee to be paid by the defendant and costs of the action.” 29 U.S.C. § 216(b) (emphasis added). Thus, the language of the ADEA itself indicates that an award of attorney’s fees is extraneous to, rather than central to, the merits.
The Supreme Court’s reasoning in White v. New Hampshire, 455 U.S. 445, 102 S.Ct. 1162, 71 L.Ed.2d 325 (1982) supports our interpretation. In White the Court held that a motion for attorney’s fees under 42 U.S.C. § 1988 was not properly categorized as a Rule 59(e) motion to alter or amend the judgment because it raised issues collateral to rather than essential to the merits of the case. As in White, the motion for fees here requires no reconsideration of the issues on the merits, as the motion “in no way urged the court to reconsider its holdings of law and fact to determine whether its prior judgment was correct.” Gordon v. Heimann, 715 F.2d 531, 537 (11th Cir.1983) (requests for attorneys’ fees were collateral to the underlying RICO action). Nor can attorney’s fees “fairly be characterized as an element of ‘relief’ indistinguishable from other elements.” White, 455 U.S. at 451, 102 S.Ct. at 1166. Moreover, because the plaintiff is entitled to attorney’s fees only in addition to a judgment on the merits, the court cannot make an award of such fees until the litigation on the merits is finalized. Thus, we conclude that the district court’s August 29th order, although it failed to determine the amount of fees to be awarded, was final and appealable.
B. Whether relief should have been granted under Rule 60(b)
“[T]he decision whether to grant a motion to amend a judgment rests within the discretion of the trial judge and will not be overturned absent an abuse of discretion.” Barnes v. Southwest Forest Industries, Inc., 814 F.2d 607, 611 (11th Cir.1987). Here, Taylor argues that the district court either employed an improper legal standard or abused its discretion in granting relief under Fed.R.Civ.P. 60(b), as the evidence supports neither a finding that Taylor gave untruthful testimony nor that Taylor’s receipt of pension benefits constituted “newly discovered evidence.”
Rule 60(b) provides in part:
On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, order, or proceeding for the following reasons: ... (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party—
It is unclear from the district judge’s order which provision of Rule 60(b) he relied upon in amending the judgment. Although he found that Taylor had been “less than candid,” he made no specific finding under either Rule 60(b)(2) or 60(b)(3). Moreover, after reviewing the record, we conclude that Texgas did not establish that it was entitled to have the judgment amended under either of those prongs of Rule 60(b).
First, there exists no basis for granting relief to Texgas under Rule 60(b)(2). To prove a basis for relief under this rule, a party must demonstrate that (1) the evidence is newly discovered since the judgment was entered; (2) due diligence on the part of the movant to discover the new evidence has been exercised; (3) the evidence is not merely cumulative or impeaching; (4) the evidence is material; and (5) the evidence is such that is likely to produce a new outcome if the case were retried, or is such that would require the judgment to be amended. See Scutieri v. Paige, 808 F.2d 785, 793 (11th Cir.1987); Ag Pro, Inc. v. Sakraida, 512 F.2d 141, 143 (5th Cir.1975), rev’d on other grounds, 425 U.S. 273, 96 S.Ct. 1532, 47 L.Ed.2d 784 (1976); 11 C. Wright & A. Miller, Federal Practice and Procedure § 2859 (1973).
Rather than indicating that Taylor’s receipt of pension payments from appellee is “new evidence,” the record contains uncontroverted evidence that shows that Texgas knew that it was paying Taylor pension benefits months before the June hearings regarding Taylor’s receipt of disability payments. Texgas approved Taylor’s pension request on January 3, 1986, and mailed a check to Taylor on March 14, 1986. “Unexcused failure to produce the relevant evidence at the original trial can be sufficient, without more, to warrant denial of a rule 60(b) motion.” Kentucky Fried Chicken Corp. v. Diversified Packaging Corp., 549 F.2d 368, 391 (5th Cir.1977). Moreover, evidence cannot be “newly discovered” under Rule 60 if it is in the possession of the moving party or that party’s attorney prior to the entry of judgment. See United States v. Potamkin Cadillac Corp., 697 F.2d 491, 493 (2d Cir.) (evidence is not newly discovered where defendant’s attorney admitted that he knew of the evidence prior to the granting of summary judgment and could give no plausible explanation as to why the evidence was not produced earlier), cert. denied, 462 U.S. 1144, 103 S.Ct. 3128, 77 L.Ed.2d 1379 (1983). The mere fact that Texgas is a large company does not excuse it from informing its employees of the identity of its legal opponents and from requiring its employees to report any dealings with those opponents to the company’s counsel.
Nor has Texgas alleged a sufficient claim under Rule 60(b)(3). “One who asserts that an adverse party has obtained a verdict through fraud, misrepresentation or other misconduct has the burden of proving the assertion by clear and convincing evidence.” Rozier v. Ford Motor Co., 573 F.2d 1332 (5th Cir.1978). Moreover, the movant must show that the conduct complained of “prevented the moving party from fully and fairly presenting his case.” Harre v. A.H. Robins Co., 750 F.2d 1501, 1503 (11th Cir.1985) (quoting Stridiron v. Stridiron, 698 F.2d 204, 207 (3d Cir.1983)). Here, Texgas alleges that Taylor was less than truthful at the June 10 hearing when he failed to tell the court that he had received pension benefits from Texgas. However, the hearing was called specifically to deal with disability benefits, and the only questions asked of Taylor dealt solely with disability benefits. Taylor’s attorney asked him, “Since March 5, 1985, you have not received any other disability benefits, have you?” and Taylor responded, “No, sir.” Following this direct examination of Taylor, counsel for Texgas declined to cross examine Taylor. Nor did Texgas afford itself of the opportunity it was given to file a brief and to present further evidence prior to the court’s final decision. Given that Taylor rightfully could have assumed that counsel for Texgas was aware that Texgas was sending Taylor pension payments, Taylor’s conduct does not rise to the level of fraud. Additionally, given the fact that Texgas itself knew that it had been making pension payments to Taylor, even if its counsel were not aware of that fact, Texgas cannot show that Taylor’s failure to mention the pension payments prevented Texgas “from fully and fairly presenting its case.” Harre, 750 F.2d at 1503.
We conclude that the district court abused its discretion. Accordingly, the district court’s order of August 29, 1986, modifying its July 1 order awarding reinstatement and damages, is VACATED and the July 1 order is reinstated in full. Appellant’s motion for attorney’s fees relating to this appeal is GRANTED; we REMAND this case to the district court for determination of an appropriate fee.
. Although appellee filed a timely cross appeal, we grant appellant’s motion that the cross appeal be considered abandoned, as appellee failed to raise the cross appeal in its brief or argument before this court.
. Fed.R.Civ.P. 59(b) requires a motion for new trial to be served not later than ten days after entry of the judgment. Rule 59(e) places the same ten day time limitation on a motion to alter or amend the judgment.
. 28 U.S.C. § 1291 provides:
The courts of appeals ... shall have jurisdiction of appeals from all final decisions of the district courts of the United States ... except where a direct review may be had in the Supreme Court.
. Rule 54(b) provides:
Judgment Upon Multiple Claims or Involving Multiple Parties. When more than one claim for relief is presented in an action ... the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties 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.
. The Eleventh Circuit, in Stein v. Reynolds Securities, Inc., 667 F.2d 33 (11th Cir. 1982), adopted as precedent decisions of the former Fifth Circuit, Unit B, rendered after September 30, 1981.
. Fed.R.Civ.P. 59(e), supra note 2.
. The Eleventh Circuit, in the en banc decision Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981), adopted as precedent decisions of the former Fifth Circuit rendered prior to October 1, 1981.
. See also Pioneer Insurance Co. v. Gelt, 558 F.2d 1303, 1312 (8th Cir.1977) (denial of appellant's Rule 60(b) motion appropriate where, among other things, appellant and his original attorney were either aware of the existence and contents of the evidence before trial or would have been had reasonable diligence been used); Plisco v. Union Railroad Co., 379 F.2d 15 (3d Cir.) (proffered testimony not "new” under Rule 60 where movant was aware prior to trial that witness had seen the accident), cert. denied, 389 U.S. 1014, 88 S.Ct. 590, 19 L.Ed.2d 660 (1967).
Question: What is the specific issue in the case within the general category of "civil rights - other civil rights"?
A. alien petitions - (includes disputes over attempts at deportation)
B. indian rights and law
C. juveniles
D. poverty law, rights of indigents (civil)
E. rights of handicapped (includes employment)
F. age discrimination (includes employment)
G. discrimination based on religion or nationality
H. discrimination based on sexual preference federal government (other than categories above)
I. other 14th amendment and civil rights act cases
J. 290 challenge to hiring, firing, promotion decision of federal government (other than categories above)
K. other civil rights
Answer:
|
songer_r_subst
|
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 "sub-state governments, their agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Robert L. MELVILLE, Plaintiff-Appellant, v. CUYAHOGA COUNTY BOARD OF ELECTIONS, Defendant-Appellee.
No. 71-2004.
United States Court of Appeals, Sixth Circuit.
June 28, 1972.
Raymond T. Sawyer, III, Thompson, Hiñe & Flory, Cleveland, Ohio, for plaintiff-appellant.
John L. Dowling, Asst. Pros. Atty., Cleveland, Ohio, for defendant-appellee; John T. Corrigan, Pros. Atty., Cuyahoga County, Cleveland, Ohio, on brief.
Before PHILLIPS, Chief Judge, KENT, Circuit Judge, and O’SULLIVAN, Senior Circuit Judge.
PER CURIAM.
This is an appeal from the dismissal of the plaintiff’s (the parties will be referred to as in the court below) complaint challenging the charter provisions of the City of Rocky River, Ohio, which require that the Mayor of the City shall have been a qualified elector and resident for at least three years prior to the date of his election. The complaint recites that on August 4, 1971, Ira N. For-man (Forman), age 19, a resident of Rocky River for more than three years, but a qualified elector for less than three years, filed a declaration of his candidacy for the office of Mayor of Rocky River in the Democratic Primary Election scheduled for September, 1971. He had complied with the charter provisions relating to the necessity for signatures. On August 6, the Board of Elections advised Forman that his name would not be on the ballot because he had not been a qualified elector for three years.
Plaintiff filed this action claiming that the provisions of the charter of the City of Rocky River requiring that a candidate must have been an elector for three years before election violated his Civil Rights and the Equal Protection Clause contained in Amendment 14 to the Constitution of the United States because he was denied the right to vote for the candidate of his choice. The action was dismissed by the District Court by an order entered September 9, 1971.
At the time of the argument of the case in this Court it was conceded by counsel for the plaintiff that the primary and general elections for 1971 had been held (without the benefit of For-man’s candidacy). The prayer for relief of the complaint did not request a declaratory judgment, 28 U.S.C.A. § 2201, but requested an injunction to restrain the enforcement of the electorship requirement and to require that Forman be reinstated as a candidate on the Democratic Primary ballot for the office of Mayor of Rocky River. At the time of the hearing in the District Court counsel for the plaintiff stated to the District Judge that Forman was enrolled as a sophomore at Harvard University: On these facts and because of the limited nature of the prayer for relief in the complaint, this Court concludes that the issues presented in this cause are moot.
The appeal is dismissed.
Question: What is the total number of respondents in the case that fall into the category "sub-state governments, their agencies, and officials"? Answer with a number.
Answer:
|
songer_appel2_7_2
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the gender of this litigant. Use names to classify the party's sex only if there is little ambiguity (e.g., the sex of "Chris" should be coded as "not ascertained").
WAHLGREN et al. v. BAUSCH & LOMB OPTICAL CO. et al.
No. 5015.
Circuit Court of Appeals, Seventh Circuit.
Jan. 23, 1934.
Benj. F. J. Odell, Albert Sabath, and Charles Hudson, all of Chicago, Ill., for appellants.
Silas H. Strawn, John D. Black, and George B. Christensen, all of Chicago, Ill., for appellees.
Before ALSCHULER, EVANS, and FITZHENRY, Circuit Judges.
EVANS, Circuit Judge
(after stating the facts as above).
The assignments of error may be considered under three headings, (a) Does the contract between Roy Wahlgren and Bausch & Lomb Company as modified prevent the former from engaging in the employment or business of manufacturing and selling optical instruments for a period of five years? (b) Does the evidence show that the other appellants knowingly joined with Roy Wahl-gren in building up a business in violation of said contract of Wahlgren and appellee, Banseh & Lomb Company, or in conspiring with Roy Wahlgren to injure appellees’ business? (e) Does the evidence show that Oscar G. Wahlgren participated with his brother Roy in breaehing said contract or in conspiring to injure appellees’ business?
Essential parts of the contracts are set forth in the margin.
In 1925, one Elwood Biggs, founder of the Biggs Company, sold his interest in said company for $1,667,500 to Bauseh & Lomb Company; said interest to be paid for over a period of ten months. The contract of sale provided that during the .said ten months’ period appellant Boy Wahlgren should be given control of the company. About the same time Wahlgren entered into a separate contract with Bauseh & Lomb Company to purchase from it a large block of the stock which had been acquired from Biggs. He executed his twenty year interest bearing note for $850,000, which covered the purchase price of the stock, and which was to be paid from the dividends paid on the stock and. $20,000 annually from his salary. Boy Wahlgren thereupon became president and general manager of the Biggs Optical Company, and Kis salary was $35,000 per year. During the period covered by this contract, he became involved in marital troubles, and his conduct and personal habits were sueh as to prevent the continuance of the contract along the lines originally planned. After repeated efforts had been made to induce his reformation, Boy Wahlgren tendered his resignation at the request of the Biggs Company, which resignation was accepted by the Board, and he was removed as president and general manager of the company. Before this, however, the original contract was modified, but not in a manner which necessitates a hffie verba statement of the entire modification. Wahlgren contends that the modifi-catiofi released him from the restrictive covenant of the original agreement. Subdivision 3, paragraph 5, provided:
“(3) That in case of the termination of his employment by the Biggs Optical Company, the said Wahlgren shall not, and hereby covenants and agrees that he will not, within five (5) years from the date of the termination of such employment, enter the employ of or become or be interested in any corporation, partnership, concern or business engaged in the manufacture or sale of optical instruments or apparatus anywher6 within the United States of America west of a line drawn due North and South through the City of Detroit, Michigan.”
Appellees contend this proviso governs, while appellant Boy Wahlgren argues thal it does not.
After he severed his relations with ap-pellees, Wahlgren immediately engaged in the business of manufacturing and selling optical goods and shortly thereafter organized the Wahlgren Optical Company and induced employees of the Biggs Optical Company to leave their emplojonent and join him in his new venture. Appellees assert that in so doing he violated the provisions of the aforesaid agreement and that he also originated a conspiracy, in which his brother Oscar and the other appellants participated,' to injure and destroy by unfair means the optical business of Biggs Optical Company This charge, the appellants also denied.
There can be no doubt as to the parties’ right to legally contract so as to exclude Boy Wahlgren from engaging in the optical business for a period of five years. Broxham v. Borden’s Farm Products Co. of Ill. (C. C. A.) 53 F.(2d) 946; Wark v. Ervin Press Corporation (C. C. A.) 48 F.(2d) 152. The territory covered by the contract was restrict-, ed. The period was limited to five years. The relations of the parties and their situation made the agreement reasonable.
Appellants contend, however, that because the modification or second contract provided that the
“said agreement of February 21, 1925, together with any and all modifications thereof, shall be and be deemed to be terminated and cancelled in all particulars and for all purposes, and the said Wahlgren shall be relieved and released from all obligations expressed in said agreement or arising therefrom, * * * ”
Wahlgren was relieved of the negative employment clause of the original agreement, or, in other words, the original agreement with its restrictive employment covenants was terminated.
It is appellants’ contention that subdivision 3, paragraph 5, applies only in case of the termination of Wahlgren’s employment under and by virtue of paragraph 5 of said modified agreement. We can not agree with this conclusion. The fair construction of the second contract is that it canceled the agreement of February 21,1925, subject, however, to several exceptions, one of which is found in subdivision 3 of paragraph 5.
While we are not inclined to extend any restrictive employment covenant beyond what is clearly provided by the contract of the parties, we axe unable (once such agreement is clearly established) to construe an amendment thereto in any way different from any other contract.
A fair construction of the February, 1930, contract including paragraphs 4 and 5, and particularly subdivisions 1 and 3 of paragraph 5, leads to this conclusion and to none other. Wahlgren’s conduct and failure to make payments on his note had been so disappointing that the old contract had to be modified. Hope of Wahlgren’s reformation was still entertained, however, and paragraphs 4 and 5 were drawn on the basis of this hope. In ease the original contract was canceled, it was still the hope and plan of the parties to retain Wahlgren as general manager, but on a different salary basis. A new agreement was to ho executed which was to contain negative employment covenants such as were provided for in subdivision 1 of' paragraph 5. The contingency thus provided for never arose for Wahlgren’s conduct became such as to cause him to tender his resignation. The resignation was not accepted, „but some months later the Riggs Company acted, and the following resolution was passed:
at* • • tHat because of his personal conduct and habits which have been detrimental to the business of the corporation and because of his unauthorized withdrawals of money from the corporation, the said Roy M. Wahlgren be, and he is, hereby removed as president and general manager of this corporation.’ ”
It was this action which invoked subdivision 3 which covered just such a situation. The negative employment covenants therein contained became effective, and Wahl-gren for five years from said date was not permitted to enter the employ or become interested in any corporation, partnership, concern, or business engaging in the manufacture or sale of optical instruments within designated territorial lines.
Our examination of the testimony convinces us that the master was amply justified in finding Wahlgren, in open and flagrant violation of the agreement binding upon him, engaged in the manufacture and sale of optical instruments in the territory which he, by his agreement, had excluded from the field of his activity.
As to appellants, other than Oscar Wahl-gren, the testimony established with equal clarity that they knowingly joined Roy Wahlgren in his unlawful enterprise and in violation of his contract with Bausch & Lomb Company. They were evidently given inducements which caused them to leave their old company and to resort to unfair trade methods which could not have been justified, even though Wahlgren had not agreed to remain out of the optical manufacturing field. The record discloses a situation in which neither contract obligation nor legitimate trade methods were respected.
As to Oscar Wahlgren’s participation in his brother’s unlawful enterprise, it is argued that the evidence is not sufficient to support the findings made by the master and sustained by the District Court. Unfortunately, the testimony is not printed. The typewritten copy fills three large volumes „o£ approximately 600 pages each and includes the testimony of many witnesses. No less than nine witnesses involved Oscar in the activities in one way or another. He did not see fit to testify in denial or explanation of any of the testimony given against him, from which we are justified in assuming that any explanation which he could have offered would have been worse than the unexplained testimony and the inferences deducible therefrom. Mammoth Oil Company v. United States, 275 U. S. 13, 52, 48 S. Ct. 1, 72 L. Ed. 137.
Oscar Wahlgren contends that he was not given an opportunity to testify before the master. The record before us shows that the District Court gave him such opportunity and fixed the time at which he might appear and give his testimony before such trial judge in open court. He failed to avail himself of this opportunity. It is now argued that this showing made before the District Court was not properly incorporated in the certificate of evidence and is not properly before us. We think otherwise.
No satisfactory explanation of this appellant’s conduct and of his participation in the enterprise can be made on the hypothesis of his innocence. He was an attorney at law, practicing in Chicago. The year 1930, when the new enterprise was launched, was not a particularly favorable year for an attorney to embark in the optical business in Chicago. The depression was deep and growing worse. Prices were falling. Busi-> ness was bad. Yet, in the face of these facts', we find this attorney organizing a corporation for the conduct of a business with which he was not familiar. He knew his brother was barred from lawfully participating in such a business in Chicago. Take the testimony of the witness Bradley who stated that he called on Oscar Wahlgren one ¡evening and was told by Oscar that “he had been down East with Roy Wahlgren and that * * * Roy Wahlgren’s name was simply typical of good things in the optical business, and that he thought he would capitalize on it and that Roy had recommended that I was the man to head up the organization. * * *»
He further stated that Oscar Wahlgren said he would take care of the organization of the corporation; that the first time he knew he was going to be president of the Wahlgren Optical Company was the first time he talked to Oscar Wahlgren; that he discussed the question of the location of the new offices with only Oscar and Roy Wahl-gren and told them they should be located in the Mailers Building; that it must .have been around December 1, 1930, when the location of the new offices was definitely determined; that Oscar and Roy Wahlgren and he decided that; that he didn’t know when the lease was signed, but he thought Oscar signed it, as he was acting as president of the company, and he (Bradley) was not an officer until after he left Riggs; and that he thought it was Oscar who had told the building officials and plumbers to put the place in shape. In respect to his signing the lease at that time, he remembered Oscar called him on the phone and he went to Roy’s office and both Oscar and Roy were'there. Roy said that the organization of the corporation out in Omaha had not been completed and that as a matter of form he wanted him to sign the lease, and as soon as the corporation was formed out there, it would be changed over.
A great deal more testimony of a similar nature was received showing rather conclusively that Oscar was as active in the new venture as was his brother. Standing isolated and apart from the rest of the testimony, many of the acts of Oscar Wahlgren might be explained on the theory that he was acting as attorney, who, as such, drew leases, incorporated companies, and interviewed the interested parties. But his activities far exceeded those of an attorney drawing legal documents for a client. His actions and his words both indicate he was a participant, if not the originator, of the scheme to avoid the provisions of the agreement which excluded.his brother Roy from participation in the optical field for five years. One may not use his license to practice law as a shield to protect himself from the consequences of his participation in an unlawful or illegal conspiracy. Holt v. United States (C. C. A.) 45 F.(2d) 392. We conclude the master was justified in finding Oscar was one of the eoeonspirators in the unlawful enterprise which was conceived and executed by his brother in violation of that gentleman’s written contract.
Other questions raised by appellants have been duly considered, but none of them merits separate treatment.
The decree is affirmed.
(Contract, February 21, 1925.) “Si-yonth: It is mutually understood that during the performance of this agreement, the relations hotwo.cn the parties hereto and the Riggs Optical Company shall, so far as is within tho, control of the parties hereto, ho as follows: (1) said Wahlgren shall be and become tho General Manager of said Riggs Optical Company and shall have an annual salary of Thirty-five thousand dollars ($35,000) per year; * * *
“-Eighth: That said Wahlgren shall devote all of his time and attention to tho business of the said Riggs Optical Company, and shall not he or become engaged in any competing company or industry during tho term prescribed for the performance of this agreement, except with the written consent of tho Bausch & Lomb Optical Company. If, for any reason, his employment or relations with the Riggs Optical Company shall be terminated during said term, then he shall not become interested, either d> • roctiy or indirectly, in any competing concern or industry at any place in the. United States west of a line drawn duo north and south through the City of Detroit, Michigan.”
(Contract, February 13, 1930.) “Third; If, during tho remainder of the calendar year 1930, the said Wahlgren shall so conduct himself that his personal habits and mode, of living are satisfactory to t.he Company and his handling of the business and affairs of the Riggs Optical Company are satisfactory to and approved by the Company, it agrees that it will:
** ********
*‘(3) permit the said Wahlgren to carry on under the provisions of said agreement of February 21, 1925, as heretofore modified * * and as modified by * * * this agreement, so long as he shall * * * perform all the provision}* of said contract of February 23, 1925, as modified, and all the provisions of this contract upon his part to be performed.
“Fourth: If, however, at any time prior to January 1, 1931 the personal habits, conduct or mode of living of the said Wahlgren, or his management of tho business and affairs of the Riggs Optical Company a,re not satisfactory to the Company (as to which the Company and its Board of Directors shall be the sole judges * * *) then and in that event, the Company may elect to terminate and cancel tho said agreement of February 21, 1925, by giving to the said Wahlgren written notice of its election so to do; * * * whereupon, the said agreement of February 21, 1925, together with any and all modifications thereof, shall be and be deemed to be terminated and cancelled in all particulars and for all purposes, and the said Wahlgren shall be relieved and released from all obligations expressed in said agreement or arising therefrom, provided however, that the Company shall * * * repay to the said Wahlgren all sums of money paid by him to the Company under the said agreement and shall return to him all shares of stock of the Riggs Optical Company then held by the Company as collateral security to his indebtedness, excepting only the 5808 shares which tho Company has, by the terms of said agreement, agreed to sell to the said Wahlgren.
“Fifth: In ease tho said contract of February 21, 1925 be terminated and cancelled as hereinbefore provided, it is understood and agreed:
“(1) That the said Wahlgren may continue as General Manager of the Riggs Optical Company for such term and at such salary as may be agreed upon by the Board of Directors of the Riggs Optical Company and the said Wahlgren, and a contract shall be entered into by the said Riggs Optical Company and the said Wahlgren providing for the term of his employment as General Manager, the salary to be paid to him, that he shall devote his entire time, attention and best efforts to the business of the Riggs Optical Company, that he shall not be or become engaged in any competing company or industry during the term of such employment, and that for a period of five (5) years after the termination of such employment he shall not become or be interested, either directly or indirectly, in any corporation, partnership, concern or business competing with the said Riggs Optical Company. ******* *•
“(3)' That in case of the termination of his employment by the Riggs Optical Company, the said Wahlgren shall not, and hereby covenants and agrees that he will not, within five (5) years from the date of the termination of such employment, enter the employ of or become or be interested in any corporation, partnership, concern or business engaged in (the manufacture or sale of optical instruments or apparatus anywhere within the United States of America west of a line drawn due North and South through the City of Detroit, Michigan."
Question: This question concerns the second listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the gender of this litigant?Use names to classify the party's sex only if there is little ambiguity.
A. not ascertained
B. male - indication in opinion (e.g., use of masculine pronoun)
C. male - assumed because of name
D. female - indication in opinion of gender
E. female - assumed because of name
Answer:
|
songer_counsel2
|
E
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
UNITED STATES of America, Appellee, v. James Leonard BROWN, Defendant-Appellant.
No. 1034, Docket 77-1033.
United States Court of Appeals, Second Circuit.
Argued April 15, 1977.
Decided May 16, 1977.
Jacob Laufer, Asst. U. S. Atty., New York City (Robert B. Fiske, U. S. Atty., S. D. N. Y., Frederick T. Davis, Asst. U. S. Atty., New York City, of counsel), for ap-pellee.
Michael B. Pollack, New York City (Charles L. Weintraub, New York City, of counsel), for defendant-appellant.
Before CLARK, Associate Justice, MOORE and MULLIGAN, Circuit Judges.
Tom C. Clark, Associate Justice, United States Supreme Court, Retired, sitting by designation.
MULLIGAN, Circuit Judge:
The only issue of any substance raised on this appeal is whether the elaborate fraudulent scheme admittedly perpetrated by the appellant James L. Brown constitutes a violation of the antifraud provisions of the federal securities laws. We hold that it does and therefore affirm the conviction. Other claims of error by the trial judge are clearly frivolous and not worthy of comment here.
After an eight-day trial before District Judge Charles S. Haight, Jr. and a jury, a judgment of conviction was entered against Brown on December 23, 1976 in the United States District Court for the Southern District of New York. Brown was convicted on one count of conspiracy to commit securities fraud in violation of 18 U.S.C. § 871 and on eight counts of substantive violations of the federal securities laws, 15 U.S.C. §§ 77q(a) and 77x; 18 U.S.C. § 2. Following Brown’s conviction, Judge Haight sentenced him on the conspiracy count to five years imprisonment, with execution of all but six months suspended, and four and one half years probation commencing upon the termination of incarceration. On the remaining counts sentence was suspended and Brown was placed on periods of four and one half years probation, each to be served concurrently with the period imposed on the conspiracy count. At the time of this appeal, Brown was incarcerated under a sentence imposed for a prior unrelated conviction.
I
The government established by abundant proof at trial principally through the testimony of other conspirators the following facts which are not denied on this appeal. Sometime in March 1972 Brown met with Chester Gray, John Krappman and Harvey Axelrod, all of whom testified for the government, for the purpose of concocting and executing a scheme whereby American Home Products Corporation (AHPC) common stock certificates would be counterfeited. After considerable difficulty, phony stock certificates were finally produced bearing the forged signature of one Gerald L. Smith, an AHPC stockholder. The next step was to exchange the counterfeit AHPC certificates through the transfer agent of AHPC, Manufacturers Hanover Trust Company (MHTC), where Krappman was employed, for genuine certificates in smaller denominations. Axelrod had opened a trading account at Seed Capital Corporation (Seed), a brokerage firm where his relative, Benigno, was employed. The account was in the name of Gerald L. Smith. During October 1972, Seed accepted into the unauthorized Gerald L. Smith trading account 13,000 shares of the newly issued AHPC certificates which while genuine were derived from those which had been counterfeited and forged. Seed then sold the certificates to and through New York brokerage houses. It sold 6,000 shares directly to Weeden & Co. which mailed to Seed written confirmation of the purchase. Seed then sold 6,500 shares through Schweickart & Co. which also mailed confirmations to Seed. The final 500 shares were sold through Fer-kauf & Co. which had its clearing operations handled by Loeb Rhoades & Co.
Seed ultimately delivered the certificates thus spawned through the counterfeit shares bearing the forged name of Gerald L. Smith against payment by the brokerage houses in the total amount of $1.4 million. The money was deposited to Seed’s account and its checks totalling close to that amount were delivered to Axelrod by his relative, Benigno. Axelrod then forged Gerald L. Smith’s endorsement signature on the back of the checks. Benigno subsequently cashed checks at the Irving Trust Co. receiving payment in cash. The money was split up into shares among the swindlers, Brown receiving 50% of about $1.4 million.
II
On this appeal, Brown argues that since the scheme set forth was designed to defraud the transfer agent MHTC and not the investors who purchased genuine stock certificates, for whose protection the Securities Act was intended, it is not within § 77q(a). While this court has noted that the primary purpose of the 1933 Act was to protect investors, SEC v. Guild Films Co., 279 F.2d 485, 489 (2d Cir.), cert, denied, 364 U.S. 819, 81 S.Ct. 52, 5 L.Ed.2d 49 (1960); Gilligan, Will & Co. v. SEC, 267 F.2d 461, 463 (2d Cir.), cert, denied, 361 U.S. 896, 80 S.Ct. 200, 4 L.Ed.2d 152 (1959), appellant has not cited and we have not found any case holding that this was its sole purpose and that unless the ultimate purchaser of securities is injured or defrauded the criminal provisions of § 77q(a) are not violated. The language of that section set forth in the margin broadly condemns the employment of “any device, scheme, or artifice to defraud” or the engagement “in any transaction, practice, or course of business which operates or would operate as a fraud or deceit upon the purchaser.” There can be no doubt that there was established on trial a device, scheme or artifice to defraud. Stock certificates were counterfeited, the name of an innocent investor, Gerald L. Smith, was forged and the transfer agent was duped into issuing replacement certificates which while facially legitimate were produced as the result of the fraudulent scheme.
The argument that neither the ultimate investors nor Smith were in fact defrauded is based on the proposition that under § 8-311 of the Uniform Commercial Code the investors owned the securities free of any adverse claims of the original owner Gerald L. Smith. Moreover, it is argued that Smith was not injured because under § 8-104 MHTC had the fiduciary obligation of restoring him to his original position by buying identical securities reasonably available on the market as a replacement. The argument is unpersuasive. The fact that Smith might have a civil remedy to replace the stock which defendant Brown and his colleagues converted by counterfeit and forgery hardly prevents him from having been defrauded. One might as well argue that if Brown stole Smith’s fully insured automobile, he was never the victim of a larceny.
(3) to engage in any transaction, practice, or course of business which operates or would operate as a fraud or deceit upon the purchaser.
We see no purpose in construing the statute so narrowly and we have not in the past. Thus in United States v. Gentile, 530 F.2d 461, 467 (2d Cir.), cert, denied, 426 U.S. 936, 96 S.Ct. 2651, 49 L.Ed.2d 388 (1976) we stated:
While it was noted in the Guild Films case that the Securities Act of 1933 was primarily intended to protect investors, 279 F.2d at 489, there is no reason to doubt that Congress intended that Act to protect defrauded lenders just as much as defrauded buyers.
Similarly here there is no doubt that Congress in the broad language employed in § 77q(a) was intent upon protecting the integrity of the marketplace in which securities are traded. Here MHTC, as the transfer agent for AHPC, plays an integral role in the marketing of securities. MHTC was clearly defrauded as was the innocent investor Smith. The fact that the Uniform Commercial Code might ultimately shift the monetary loss from Smith and the ultimate investors hardly serves to exculpate Brown and his group of fellow thieves, counterfeiters and forgers from criminal responsibility. This was not of course the garden variety of security fraud — its long planned execution, assisted by faithless employees of MHTC and Seed, constituted a massive assault upon innocent investors and brokerage houses and their normal business procedures which we cannot construe the statute to countenance. The fact that there is no litigated fact pattern precisely in point may constitute a tribute to the cupidity and ingenuity of the malefactors involved but hardly provides an escape from the penal sanctions of the securities fraud provisions here involved.
The same may be said for the argument that the use of the mails to send confirmation slips to Seed by the brokerage firms who had purchased the fraudulently derived securities was insufficient to support federal jurisdiction. While it is true that the mails were not utilized to effect the initially fraudulent switch perpetrated at MHTC, nonetheless a necessary part of the scheme was the distribution of the securities so obtained. In Franklin Savings Bank v. Levy, 551 F.2d 521, 524 (2d Cir. 1977), we recently reemphasized our holding in United States v. Cashin, 281 F.2d 669, 673-74 (2d Cir. 1960) (citation omitted) on the issue of the use of the mails as a basis for jurisdiction under the 1933 Act:
The use of the mails need not be central to the fraudulent scheme and may be entirely incidental to it. Indeed, in the very case before us the only alleged use of the mails was to confirm purchases already induced by the defendants’ deceit. No claim is made that fraudulent matter was mailed or even that the mailings alleged were necessary to the execution of the unlawful scheme.
As we have indicated, the other claims made on this appeal have been considered and deemed frivolous.
Judgment affirmed.
. § 77q. Fraudulent interstate transactions (a) It shall be unlawful for any person in the offer or sale of any securities by the use of any means or instruments of transportation or communication in interstate commerce or by the use of the mails, directly or indirectly—
(1) to employ any device, scheme, or artifice to defraud, or
(2) to obtain money or property by means of any untrue statement of a material fact or any omission to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or
. In its efforts to facilitate the establishment of a national system for the clearance and settlement of securities transactions, Congress recognized the importance of the transfer agent’s function in the Securities Acts Amendments of 1975, Pub.L.No.94-29, § 15, 89 Stat. 141 (June 4, 1975), codified at 15 U.S.C. § 78q-l. This legislation had its genesis in the “paperwork crisis” of 1968-70, when the failure of the securities and banking industries to process the volume of trading forced more than 100 brokerage firms into liquidation, largely because of record keeping problems. Note, Legislation: Securities Acts Amendments of 1975, 29 Okla. L.Rev. 462, 474 (1976). Clearing agencies and transfer agents are now required to register and to keep records and file reports. Castruc-cio & Tischler, Developments in Federal Securities Regulation — 1975, 31 Bus.Law. 1855, 1886 (1976).
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_r_fed
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Edward RISEMAN et al., Plaintiffs, Appellants, v. SCHOOL COMMITTEE OF the CITY OF QUINCY et al., Defendants, Appellees.
No. 7715.
United States Court of Appeals, First Circuit.
March 11, 1971.
Michael L. Altman, Dorchester, Mass., with whom Carolyn Peck, Cambridge, Mass., was on brief, for appellants.
John W. Sharry, Asst. City Sol., for appellees.
Before ALDRICH, Chief Judge, Me-ENTEE and COFFIN, Circuit Judges.
PER CURIAM.
Plaintiff, a junior high school student in Quincy, Massachusetts, after being prevented by school officials from distributing within the school an anti-war leaflet and “A High School Bill of Rights”, sought permission from the School Committee to distribute on school property and during school hours, literature of a political nature such as leaflets relating to the country’s involvement in Southeast Asia. The Committee voted to deny plaintiff’s request. The denial was not based on the nature of the materials sought to be distributed, but on a refusal to change the existing School Committee regulation, reproduced in the margin, which the Committee believed covered this situation.
Plaintiff thereafter brought an action in the district court under 42 U.S.C. § 1983, seeking injunctive and declaratory relief. Subsequently hearing was held on plaintiff’s motion for a preliminary injunction. The 'court denied plaintiff’s request but temporarily restrained defendant from “interfering with the orderly and not substantially disruptive distribution on school premises outside of school buildings” (emphasis added) of materials of a political nature or of other matters of public concern. Protesting that “outside of school buildings” was less than half a loaf, plaintiff appealed, asserting insufficient preliminary relief, and also sought a broadening of the interlocutory relief pending appeal which we granted on November 3, 1970.
Considering the action of the district court, after notice and a full scale hearing, to be an appealable order, ITT Lamp Division of ITT v. Minter, 435 F.2d 989, n. 2 (1st Cir. Dec. 14, 1970), we face the task, regrettably no longer novel, of securing the exercise of First Amendment rights of students against unrestricted encroachment by school authorities. While we have recently been called upon only to deal with First Amendment activities of teachers, see, e.g., Mailloux v. Kiley, 436 F.2d 565 (1st Cir. Jan. 14, 1971), and Keefe v. Geanakos, 418 F.2d 359 (1st Cir. 1969), other courts have applied the principles of Tinker v. Des Moines Independent School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969) to the right of high school students to distribute literature within their schools. Scoville v. Board of Education of Joliet, 425 F.2d 10 (7th Cir. 1970); Eisner v. Stamford Board of Education, 314 F.Supp. 832 (D.Conn.1970); Sullivan v. Houston Independent School District, 307 F.Supp. 1328 (S.D.Tex.1969); Zucker v. Panitz, 299 F.Supp. 102 (S.D.N.Y.1969); cf. Friedman v. Union Free School District, 314 F.Supp. 223 (E.D.N.Y.1970).
We recognize the duty of school authorities to punish student conduct which “materially disrupts classwork or involves substantial disorder or invasion of the rights of others”, Tinker, supra, 393 U.S. at 513, 89 S.Ct. at 740. However, we find it unlikely that a court, on completion of this case on the merits, could uphold this attempt at regulating student conduct. First, the rule was obviously devised for the quite different purposes of controlling in-school advertising or promotional efforts of organizations. More importantly, as sought to be applied to First Amendment activities, it is vague, Connally v General Construction Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 (1926), overbroad, Zwickler v. Koota, 389 U.S. 241, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967), and does not reflect any effort to miminize the adverse effect of prior restraint, Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965).
In our earlier order broadening the scope of injunctive relief pending appeal, we attempted to make clear the right of the school officials to devise sensible rules governing the time, place, and manner of distribution of literature. We do not intend that the continuance of injunctive relief pending final disposition of this case should delay the devising of such guidelines.
Reversed, remanded for amending the order granting temporary injunctive relief to make the same consistent with our order of November 3, 1970.
. “Pupils, stuff members, or the facilities of the school may not be used in any manner for advertising or promoting the interests of any community or non-school agency or organization without the approval of the School Committee. Exceptions to the above rule are:
a. The Superintendent of Schools may cooperate in the many activities of the community providing such operation does not infringe on the school program or diminish the amount of time devoted to the school program.
b. The Superintendent of Schools may authorize the use of films and materials or programs where the educational value of the material considerably offsets any incidental advertising disadvantages.
c. Appropriate advertising may be sold for the school publications.”
. The pertinent terms of our order required :
“Pending final determination of this case, or until further order of this court, the Quincy public schools shall not enforce a regulation prohibiting absolutely the distribution on the school grounds, which includes within the buildings, by students of leaflets, brochures, or other written forms of expression. Students shall have the right to engage in orderly and not substantially disruptive distribution of such papers, jmovided that neither the distributors nor the distributees are then engaged, or supposed to be engaged, in classes, study periods, or other school duties. Nothing in this order shall prevent the principal of any school from promulgating reasonable rules setting forth in detail the times, places within that school, and manner that such matter may be distributed, provided that no advance approval shall be required of the content of any such paper. However, the principal may require that no paper be distributed unless, at the time that the distribution commences, a copy thereof, with notice of where it is being and/or is to be distributed, be furnished him, in hand if possible.”
Question: What is the total number of respondents in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number.
Answer:
|
songer_timely
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the trial court level. These issues are only considered to be present if the court of appeals is reviewing whether or not the litigants should properly have been allowed to get a trial court decision on the merits. That is, the issue is whether or not the issue crossed properly the threshhold to get on the district court agenda. The issue is: "Did the court conclude that it could not reach the merits of the case because the litigants had not complied with some rule relating to timeliness, a filing fee, or because a statute of limitations had expired?" 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".
Dewey CATES and Barbara Cates, partners doing business as U.S. 40 Motel, Plaintiffs-Appellees, Cross-Appellants, v. MORGAN PORTABLE BUILDING CORP., a Texas corporation, Defendant-Appellant, Cross-Appellee.
Nos. 85-1144, 85-1228.
United States Court of Appeals, Seventh Circuit.
Argued Oct. 21, 1985.
Decided Dec. 23, 1985.
Rehearing and Rehearing En Bane Denied Jan. 30, 1986.
David M. Harris, Greensfelder, Hemker, Wiese, Gale & Chappelow, St. Louis, Mo., for defendant-appellant, cross-appellee.
Terrance L. Farris, Ruppert & Benjamin, Clayton, Mo., for plaintiffs-appellees, cross-appellants.
Before POSNER, FLAUM and EASTER-BROOK, Circuit Judges.
POSNER, Circuit Judge.
This diversity breach of contract suit is not the longest contract lawsuit in history, but it is one of the longest relative to the stakes, which are modest (under $60,000). The ease is in its fifteenth year, and this is the third appeal to this court. (May its third coming be the last.) The present lawyers for the opposing parties were debate partners in high school at a time when the lawsuit was already well under way; and 12 years ago the plaintiffs were complaining about delay in the disposition of the case. See “Waiting for Court Date: Justice Eludes Motel Operator,” Metro-East J., Aug. 27, 1973. They have since learned patience.
The plaintiffs, Mr. and Mrs. Cates, owned a motel. The defendant, Morgan, a Texas corporation, manufactures portable building units. In June 1970 the Cateses made a contract with Morgan to buy for about $26,000 portable buildings that would add 10 rooms to the motel’s 12. The buildings were delivered in September, in defective condition. Morgan promised to repair them, and its men did some desultory work at the site on and off for several months. In April 1971, after the men had not been back for more than a month, the Cateses wrote Morgan to say that they considered Morgan to have broken the contract. Morgan did not reply, and the suit was filed in August. Morgan counterclaimed for the unpaid balance of the purchase price, some $3,000.
Trial (a bench trial) began in February 1973 but was adjourned on the basis of a tentative settlement agreement. Negotiations to make the agreement final were protracted but in September 1973 the parties finally stipulated, in an order signed by the district judge, that Morgan would resume the repairs it had discontinued back in March 1971. The Cateses had done no repair work in the meantime either on their own or by hiring a contractor. The work continued on and off for some months, but not to the Cateses’ satisfaction. The parties then agreed to submit all issues of liability and damages arising out of Morgan’s alleged breach of contract, except the issue of consequential damages, to binding arbitration. In October 1974 the arbitrator ruled that there had been a breach and fixed the Cateses’ damages (the cost of making the buildings habitable) at some $3,500, against which Morgan was entitled to set off the amount of the contract price that the Cateses hadn’t paid. As the setoff was almost equal to the damages, the Cateses ended up with a net award of only $218.05.
The issue of consequential damages, however, was unresolved. Trial therefore resumed in the district court in May 1975. The Cateses claimed some $56,000 in lost profits from not being able to rent the 10 rooms because of the defective condition in which the portable buildings housing the rooms had been delivered. In October the judge ruled that the Cateses were entitled to consequential damages but of less than $5,000. The Cateses appealed. For reasons no longer clear it was not till the end of 1978 that the appeal was presented to a panel of this court, which reversed, 591 F.2d 17 (7th Cir.1979), on the ground that the district judge had set too stringent a standard for proving lost profits. A new trial was held and a judgment for the Cateses rendered in 1982 awarding them the full $56,000 that they had sought. Morgan appealed and again we reversed (this time in an unpublished order, 735 F.2d 1366), on the ground that the district judge had failed to consider Morgan’s defense that the Cateses had failed to mitigate their damages.
When the case came back to the district judge the parties agreed to let him decide the issue of mitigation on the basis of the record of the previous trial, but the judge later vacated the stipulation and a new trial was held last year. This time the judge awarded the Cateses $33,532.14 in consequential damages, representing their lost profits for two periods: September 1, 1970, to September 30, 1971, and September 11, 1973, to April 30, 1975. Regarding the intervening period — October 1, 1971, to September 10, 1973 — the judge held that the Cateses had failed to mitigate their damages:
Although the defendant stopped working on March 29, 1971, the Court finds that the plaintiffs had no reason to believe that the defendant was finished with repairing the units. Having no reason to believe that the defendant would not finish, the plaintiffs were under no obligation to mitigate their damages as of March 29, 1971. However, this does not mean that the plaintiffs’ duty to mitigate was forever relieved. After a period of time the plaintiffs should have realized that the defendant would not come back to repair the units. The Court feels that after six months, the plaintiffs should have made this realization. Therefore the Court finds that after the passage of six months the plaintiffs’ duty to mitigate arose.
The judge also awarded the Cateses $2,500 for what it would have cost them to repair the buildings back in 1971 when their duty to mitigate arose.
The parties have cross-appealed. The main issues concern mitigation of damages, on which see Farnsworth, Contracts §§ 12.-12-13 (1982). Morgan argues that the duty to mitigate arose before October 1, 1971, and that the judge’s finding that the Cateses failed to mitigate damages for a period beginning then (but the precise beginning daté doesn’t matter) logically precludes any award of consequential damages for a later period. The Cateses argue that the judge improperly placed the burden of proving mitigation on them, that Morgan had an equal opportunity to mitigate and is therefore barred from raising the defense of failure to mitigate damages, and that in fact there never was a period in which they failed to mitigate their damages.
The contract was broken in September 1970 when the buildings were delivered in defective condition, and ordinarily the duty to mitigate damages would have arisen at that time and the Cateses would have been required to set about with reasonable dispatch to put the units into renta-ble shape. But if a seller of defective goods tells the buyer, don’t bother to get the goods repaired — I’ll do it — the duty to mitigate is suspended; to put this differently, the seller may not insist on mitigation when by its words or deeds it has led the buyer to believe that it has assumed what would otherwise be the buyer’s burden of mitigation. See, e.g., Shearson Hayden Stone, Inc. v. Leach, 583 F.2d 367, 371 (7th Cir.1978). The district judge found, and its finding is not clearly erroneous, that by promising to repair the defects and sending its men to the motel to do the work Morgan lulled the Cateses into thinking that they didn’t have to do anything themselves to repair the defects, because Morgan would take care of it.
But if at some point the seller makes clear to the buyer that it has ceased trying to correct the breach, the suspension of the buyer’s duty to mitigate damages ends, and he must arrange for the repairs himself. See, e.g., Hutson v. Cummins Carolinas, Inc., 280 S.C. 552, 560, 314 S.E.2d 19, 24 (Ct.App.1984). This happened sometime after March 29, when Morgan’s men disappeared from the site. It is a nice question, however, just when the Cateses should have awakened to the fact that Morgan’s men were not coming back. If you invite someone to dinner, and hours after he was due he still hasn’t arrived, you had better infer that he isn’t coming, and start eating. You can’t let yourself and your other guests starve merely because there is a slight chance that he will show up days later.
The Cateses’ lawyer wrote Morgan on April 23 that they would not pay the balance of the contract price, because Morgan had broken the contract; and we do not think that by waiting less than a month after Morgan’s men stopped work to give their side of the dispute the Cateses waited too long. But when Morgan did not promptly reply with further promises of repair, the Cateses had to assume that the breach was irrevocable, that Morgan’s crew was not coming back, and that they had better make their own arrangements for the repairs. How long they could wait after April 23 for some form of reply, how much longer after the expiration of a reasonable waiting period it would have taken them to make the repairs themselves or hire a contractor to make them, and when finally the units could have been made habitable are difficult questions since, in fact, the Cateses did nothing. The judge said six months was all they were entitled to. This was a guess; but in the nature of things no more than a guess was possible; and it was an informed and sensible guess, which we cannot deem clearly erroneous (Morgan conceded at argument that it was not an unreasonably long period) — unless perhaps the Cateses are right that Morgan has the burden of proving failure to mitigate damages, rather than their having to prove mitigation.
Our previous opinion held that the law applicable to the substantive issues in this diversity case is the Uniform Commercial Code as adopted in Illinois (Morgan’s portable building units were “goods” within the meaning of the Code, see § 2-105). 591 F.2d at 20. As an original matter there would be some doubt whether under Illinois conflict of laws rules, which of course govern in a diversity suit tried in Illinois, Illinois contract law was applicable to a dispute arising under a contract made in Texas and partially performed there. But the precedents on this question are too uncertain to warrant our reopening the question. See Boise Cascade Home & Land Corp. v. Utilities, Inc., 127 Ill.App.3d 4, 12-13, 82 Ill.Dec. 180, 186-87, 468 N.E.2d 442, 448-49 (1984); Dr. Franklin Perkins School v. Freeman, 741 F.2d 1503, 1515 n. 19 (7th Cir.1984); American Nat’l Bank & Trust Co. v. Weyerhaeuser Co., 692 F.2d 455, 460 n. 10 (7th Cir.1982); Zlotnick v. MacArthur, 550 F.Supp. 371, 373-74 (N.D.Ill.1982). In any event, the parties to a lawsuit can, within broad limits, stipulate to the law governing their dispute; the parties here have impliedly stipulated to the application of Illinois law; and an implied stipulation is good enough. See, e.g., Muslin v. Frelinghuysen Livestock Managers, Inc., 777 F.2d 1230, 1231 n. 1 (7th Cir.1985); Casio, Inc. v. S.M. & R. Co., 755 F.2d 528, 530-31 (7th Cir.1985).
The Uniform Commercial Code requires mitigation of damages, see UCC § 1-106, comment 1, but it does not say who has the burden of proof on the issue of mitigation. There are no Illinois cases on the point, and cases from other jurisdictions are hopelessly divided — compare for example TCP Industries, Inc. v. Uniroyal, Inc., 661 F.2d 542, 550 (6th Cir.1981), with Wilson v. Hays, 544 S.W.2d 833, 836 (Tex.Civ.App.1976). The debate would not be an easy one to resolve on grounds of policy. On the one hand the plaintiff has easier access to information about his own efforts to mitigate damages. On the other hand he is more likely to mitigate his damages than to trust entirely to his legal remedies for breach of contract, and on this ground similar disputes over burden of proof in tort cases have been resolved in favor of placing the burden of proof on the defendant — for example to show that the plaintiff was contributorily negligent or failed to take steps to avoid some or all of the harmful consequences of the defendant’s tort. See Prosser and Keeton on the Law of Torts 451, 458 (5th ed. 1984). But we can sidestep the debate by observing that the cases make no distinction between the burden of proving mitigation of damages under the Uniform Commercial Code and under the common law of contracts, and by asking where Illinois assigns the burden of proof regarding mitigation of damages in common law contract cases. The answer is clear: on the defendant. See Fisher v. Fidelity & Deposit Co., 125 Ill.App.3d 632, 642, 80 Ill.Dec. 880, 888, 466 N.E.2d 332, 340 (1984); Dillman & Associates, Inc. v. Capitol Leasing Co., 110 Ill.App.3d 335, 343-44, 66 Ill.Dec. 39, 46, 442 N.E.2d 311, 318 (1982). In default of better information we must assume that in a case under the Uniform Commercial Code, too, Illinois courts would place the burden of proof on the defendant. It was therefore Morgan’s burden to prove that the Cateses had failed to mitigate their damages.
Burden of proof is important when the evidence is in equipoise, or when no evidence is put in on an issue, or the case is tried to a jury, which may attach great significance to who has the burden of proof, not fully realizing (or accepting) that burden of proof should determine the outcome only when decision is balanced on the razor’s edge. Although the district judge had ruled that the plaintiffs had the burden of proof, his opinion does not mention burden of proof and nothing in the opinion suggests that it played a role in his determination that after six months the Cateses had a duty to mitigate damages. Both parties put in evidence and the judge picked a period, not unfavorable to the Cateses, by the end of which they should have mitigated their damages. The judge’s error about who had the burden of proof was harmless. See E.S.I. Meats, Inc. v. Gulf Florida Terminal Co., 639 F.2d 1348, 1352-53 (5th Cir.1981).
We turn now to the Cateses’ argument that they had no duty to mitigate damages because Morgan had an equal opportunity to mitigate. At first blush the concept of equal opportunity to mitigate seems to assert the true but irrelevant proposition that a defendant can always avoid liability by not breaking his contract, and in that sense always has an equal opportunity with the plaintiff to mitigate the latter’s damages. See Rossi v. Mobil Oil Corp., 710 F.2d 821, 834 (Temp.Emerg. Ct.App.1983). But there is a little more to the concept than that. In the first case to employ it, S.J. Groves & Sons Co. v. Warner Co., 576 F.2d 524, 530 (3d Cir.1978) (alternative holding), the defendant had broken its contract to supply concrete for the plaintiff’s building project, and it defended on the ground that the plaintiff should have turned to another firm, Trap Rock, as a substitute source or at least a supplemental source of concrete. The defendant itself, however, had used Trap Rock in the past, and could just as easily as the plaintiff have turned to it to make up the deficiency in its own supply. See also Midwest Industrial Painting of Florida, Inc. v. United States, 4 Cl.Ct. 124, 133 (1983).
We need not try to guess whether Illinois would recognize the “equal opportunity” doctrine (if so recent and rarely applied and, as we are about to see, questionable a legal idea can be called a doctrine) in a suitable case. The doctrine is discordant with common law principles, which demand a reason for not letting losses lie where they fall. If a plaintiff can avoid a loss at a cost no greater than the defendant would bear, one might have thought that he would have to incur the cost (for which of course he could seek reimbursement from the defendant) and thereby avoid the loss. Be that as it may, the parties’ positions were not symmetrical here. Morgan’s business is making portable housing units, not running a motel. While it might well have been able to perform the necessary physical repairs of its defective units as well as the Cateses or some contractor hired by them could do — might even have been able to hire a contractor as easily as the Cateses could have done, though being an out-of-state company it might have been at a disadvantage in this respect — no argument is made that it could have done these things at lower cost than the Cateses; and it could not have made other adjustments that might have avoided all or some of the consequences of its breach at a lower cost than making physical repairs would have entailed. The Cateses should have (but Morgan could not have) considered carefully the possibility of reducing their lost profits either by ordering substitute units or by making superficial repairs to the defective units and then renting them at cut rates. Contract law seeks to preserve the buyer’s incentive to consider a wide range of possible methods of mitigation of damages, by imposing a duty to mitigate even if some of the possibilities are equally within the seller’s power. This incentive would be lost if Morgan’s ability to repair its defective units — only one method, and maybe not the cheapest method, of reducing the Cateses’ consequential damages — excused the Cateses from all duty of mitigation.
We thus agree with the district judge that the Cateses had a duty to mitigate damages and that it arose on October 1, 1971. Morgan argues that, if so, consequential damages cannot be awarded for any subsequent period, for if the Cateses had mitigated their damages back in 1971 as they were supposed to do they would have had no subsequent consequential damages. They would have been renting out the units and earning rental income since 1971, rather than only since 1975 when they finally made the repairs that made the units habitable.
This argument is inconsistent with fundamental common law principles. Supposing it to be the fact, as found by the district judge, that between September 1973 and April 1975 “the defendant intermittently worked on the units and made assurance that the units would be repaired,” are the Cateses to be forever at the mercy of Morgan’s misrepresentations and broken promises because they failed to mitigate damages back in 1971? We think not. Suppose that having failed to mitigate their damages by repairing the units in 1971 or 1972 the Cateses finally went and signed a contract with another contractor in 1973 to make the repairs, and the contractor then broke his promise. The Cateses would not be barred from recovering contract damages from him merely because if they had repaired the units back when they were supposed to they would never have had to sign this contract. To rule otherwise would be to say that if a person breaks his leg through his own carelessness, he cannot complain if the doctor sets the leg negligently and as a result makes the break worse. The Cateses in our hypothetical case would not, merely by failing to mitigate damages, have made it more likely that they would be victimized by a subsequent contractor when belatedly they began to mitigate, and therefore they would not be in law the cause of that subsequent harm.
The analogous case in tort law is Berry v. Sugar Notch Borough, 191 Pa. 345, 43 A. 240 (1899). The plaintiff, the motorman of a trolley, sued the town for negligence in letting a rotten tree fall on the trolley, injuring him. The defense was that he was contributorily negligent, because he had been speeding, and if he had been driving more slowly he would not have been under the tree when it fell. The defense failed. The motorman’s negligence did not make the kind of accident that occurred more likely to occur. No more did the Cateses’ initial dawdling about repairing the defective units make it more likely that a contractor would break his promise to repair the units. It makes no difference who the contractor was. Morgan made a fresh promise to repair, which it broke, and by breaking became liable for the consequential damages of the breach.
It might have been more elegant if the Cateses had in 1975 moved to amend their complaint to add as a new and separate cause of action the breach by Morgan of the stipulation that the parties made in September 1973, or for that matter if the Cateses had filed a separate breach of contract suit which would have been consolidated with the original one. There would have been no jurisdictional obstacle to a new suit, since the parties are of diverse citizenship and the amount in controversy exceeds $10,000 even when limited to the second period for which the judge allowed an award of consequential damages. Since a complaint can be amended at any time, even in the court of appeals, to conform to the evidence, see, e.g., Reese v. Elkhart Welding & Boiler Works, Inc., 447 F.2d 517, 528-29 (7th Cir.1971); Fifth Ave. Bank v. Hammond Realty Co., 130 F.2d 993, 995 (7th Cir.1942); Smith v. CMTAIAM Pension Trust, 654 F.2d 650, 654 n. 2 (9th Cir.1981); 6 Wright & Miller, Federal Practice and Procedure § 1494, at pp. 476-77 (1971); cf. Fed.R.Civ.P. 15(b), we could simply deem the complaint so amended. But such formalities are unnecessary. The district judge was entitled to find that Morgan had made and broken a fresh promise to repair the units, leading the Cateses to forbear and thereby imposing on them consequential damages for the period from September 1973 to April 1975, when Morgan’s second breach became irrevocable and the Cateses finally completed the repair of the units.
The Cateses’ other damages, to which we turn now, are repair costs. The Cateses argue that $2,500 is too low because it is the cost of repair in 1975, and it would have been higher in 1971 if they had mitigated damages then, since they would not have had the benefit of the work, such as it was, that Morgan performed pursuant to the stipulation of September 1973. Morgan says it is too high, because the Cateses’ income tax return reported only $1,300 as the cost of those 1975 repairs. We would have thought the issue settled by the arbitrator’s finding that it would have cost the Cateses some $3,500 to repair the units back in 1971. The Cateses shy away from so arguing because they want us to award them $15,000 based on bids they solicited in 1971 (to which Morgan replies with great force that the bids were on work that would have greatly improved and not merely repaired the units), and Morgan because it wants to reduce the amount to $1,300. But since the parties agreed to submit the issue of repair costs to binding arbitration and the judge confirmed the arbitration in a portion of an earlier judgment which has never been challenged, it fixes the repair costs for this lawsuit. The Cateses are entitled to their consequential damages as admeasured by the district judge, plus $218.05 (the net due them under the arbitration award), or a total of $33,750.19.
The last two issues are procedural. Morgan argues that the judge had no power to set aside the stipulation in the final pretrial order that the latest remand be tried on the record of the previous trial. Although stipulations are to be encouraged in order to economize on the costs of litigation, a judge has the power to relieve a party from a stipulation when it is reasonable to do so, and it was here. It turned out that the record of the previous trial did not fully illuminate the issue of mitigation of damages, which became a focus of concern in the case only after we reversed the second judgment; the judge was therefore acting well within his broad discretion in the management of the litigation process to order a further, and brief, evidentiary hearing “to prevent manifest injustice.” Fed.R. Civ.P. 16(e); see, e.g., Newman v. A.E. Staley Mfg. Co., 648 F.2d 330, 333 (5th Cir.1981); Seneca Nursing Home v. Secretary of Social & Rehabilitation Services, 604 F.2d 1309, 1313-14 (10th Cir.1979).
Finally, Morgan argues that the judge violated Rule 408 of the Federal Rules of Evidence by using the stipulation of September 1973 to fix liability for consequential damages incurred thereafter. The rule provides that statements made in settlement negotiations are not admissible to establish a party’s liability, or damages, in the dispute that was the subject of the negotiation. Nothing Morgan said or agreed to in the negotiations that culminated in the execution of the stipulation in September 1973 could have been used to establish its liability for the breach of contract that occurred in September 1970 or to fix its damages for that breach. But no act or statement of Morgan’s connected with these negotiations was used to establish its liability for breach of contract, which by this time Morgan concedes. It may seem that the negotiations and specifically the stipulation itself are being used to prove an item of the Cateses’ damages, namely the consequential damages from September 1973 to April 1975. But this is true only in the literal sense that, as the case has been presented, those damages are deemed damages of the original breach. As Morgan itself is at pains to argue in connection with the Cateses’ failure to mitigate damages, any damage liability stemming from the original breach ended on October 1, 1971, when their duty to mitigate accrued. Morgan’s liability for additional damages beginning in September 1973 is based on its breaking a later promise, the promise made in the stipulation to resume repairs. Obviously a settlement agreement is admissible to prove the parties’ undertakings in the agreement, should it be argued that a party broke the agreement. See, e.g., Central Soya Co. v. Epstein Fisheries, Inc., 676 F.2d 939, 944 (7th Cir.1982). That is the Cateses’ argument with regard to the later period of consequential damages.
We affirm the district judge’s judgment except to change the amount of damages to $33,750.19. No costs shall be awarded in this court.
Modified and Affirmed.
Question: Did the court conclude that it could not reach the merits of the case because the litigants had not complied with some rule relating to timeliness, a filing fee, or because a statute of limitations had expired?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_genapel2
|
I
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the second listed appellant. If there are more than two appellants and at least one of the additional appellants has a different general category from the first appellant, then consider the first appellant with a different general category to be the second appellant.
MOUNGER v. WELLS et al.
Circuit Court of Appeals, Fifth Circuit.
February 8, 1929.
No. 5460.
Travis B. Moursund and A. N. Moursund, both of San Antonio, Tex. (Cunningham, Moursund & Johnson, of San Antonio, Tex., on the brief), for appellant.
J. R. Locke, of San Antonio, Tex., and Edward Rightor, of New Orleans, La. (Wilbur L. Matthews, Templeton, Brooks, Napier & Brown, and Kelso, Locke & King, all of San Antonio, Tex., on the brief), for appellees.
Before WALKER, BRYAN, and FOSTER, Circuit Judges.
FOSTER, Circuit Judge.
This is a suit brought at law by appellees to recover certain balances alleged to' be due upon a series of transactions for the purchase and sale of cotton for future delivery upon the New Orleans Cotton Exchange. There was judgment for appellees, and error is assigned to the entering of judgment on the verdict rendered.
On a former trial we were constrained to reverse a decree in favor of appellees because the District Court on its own motion had ordered the case transferred to the equity docket. The opinion formerly rendered states the issues more fully, and no more need be said on that score. See 23 F.(2d) 374.
On the second trial the jury was required to render a special verdict by answering 14 questions propounded by the court. Question No. 1 was as follows: “Did plaintiffs and defendant Mounger in the transactions sued on, intend at the time of making them that no actual delivery of the cotton would be made upon said transactions? Answer yes or no.” To this the jury answered: “Yes.”
Question No. 2 was as follows: “If you have answered the foregoing question ‘Yes/ then answer the following question: Did plaintiffs and defendants, in the transactions sued on, intend at the time of making them that the transactions should be settled through the rules and methods prescribed by the Cotton Exchange? Answer yes or no.” To this the jury also answered: “Yes.”
The other questions and answers are not material to a decision.
It is evident that the answers above set out are in irreconcilable conflict. If no actual delivery of cotton was intended to he made, the transaction would be classed as gambling, and recovery could not he had under the law of Texas. On question No. 2 the contrary result would he reached, for the rules and methods prescribed by the New Orleans Cotton Exchange contemplate actual delivery if the parties did not settle their transactions otherwise before the delivery date, and the transactions would be legal.
On these conflicting findings by tho jury no verdict could be rendered one way or ¡the other. In this state of the case the court endeavored to make additional findings of fact, and did so as follows: “In addition to the foregoing verdict and findings of the Jury the Court finds from the evidence, as a fact, that Plaintiffs and defendant, Mounger, did pot at the time of entering into the transactions involved in this suit, intend that such contracts would he carried until their ma^ turity and settled by the payment of the difference between the contract price and the market price thereon at such date, but that the Plaintiffs intended that should the parties elect to carry said contracts to maturity, actual delivery of the cotton would be made thereon.”
The court had previously overruled a motion by plaintiffs for a directed verdict. It was not its province to make findings of fact in the manner attempted; but, even if it was, the findings are still in hopeless conflict.
It is unfortunate that the ease was submitted to the jury for a special verdict. No doubt they were confused in answering the questions clearly, as, if either was answered, “Yes,” the other should have been answered, ■“No,” to be consistent. It would have been simpler and more conclusive to have left the whole ease to the jury for a general verdict. As it is, we are again constrained to reverse the judgment, as it was error to. enter it on the conflicting findings of the jury.
Reversed and remanded.
Question: What is the nature of the second listed appellant whose detailed code is not identical to the code for the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
sc_petitionerstate
|
58
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state associated with the petitioner. If the petitioner is a federal court or federal judge, note the "state" as the United States. The same holds for other federal employees or officials.
WISCONSIN v. CITY OF NEW YORK et al.
No. 94-1614.
Argued January 10, 1996
Decided March 20, 1996
Rehnquist, C. J., delivered the opinion for a unanimous Court.
Solicitor General Days argued the cause for the federal petitioners. With him on the briefs were Assistant Attorney General Hunger, Deputy Solicitor General Kneedler, Malcolm L. Stewart, and Mark B. Stern. James E. Doyle, Attorney General of Wisconsin, argued the cause for petitioners in No. 94-1614 and No. 94-1631. With him on the brief for petitioner in No. 94-1614 was Peter C. Anderson, Assistant Attorney General. Don G. Holladay and Shelia D. Tims filed briefs for petitioner in No. 94-1631.
Robert S. Rifkind argued the cause for respondents in all cases. With him on the brief were Paul A. Crotty, Lorna B. Goodman, Peter L. Zimroth, Dennis C. Vacco, Attorney General of New York, Victoria Graffeo, Solicitor General, Barbara Billet, Deputy Solicitor General, and Lula Anderson, Assistant Attorney General, James K. Hahn, Susan S. Sher, Benna Ruth Solomon, Robert A. Ginsburg, Helen M. Gros, Dennis Hayes, Frank Shafroth, Dan Morales, Attorney General of Texas, and Javier P. Guajardo, Special Assistant Attorney General, Robert A. Butterworth, Attorney General of Florida, and George L. Waas, Assistant Attorney General, Deborah T. Poritz, Attorney General of New Jersey, and Michael S. Bokar, Senior Deputy Attorney General, Grant Woods, Attorney General of Arizona, and Robert Carey, First Assistant Attorney General, Tom Udall, Attorney General of New Mexico, and Christopher D. Coppin, Assistant Attorney General, Ada Treiger, John J. Copelan, Jr., Louise Renne, Burk E. Delventhal, Stan M. Sharoff, T. Michael Mather, John P. Frank, Avis M. Russell, Nicholas Rodriguez, Robert Cohen, Michael W L. McCrory, George Rios, Burton H. Levin, Pastel Vann, Assistant Corporation
Counsel for the District of Columbia, and Kendrick Smith.
Together with No. 94-1631, Oklahoma v. City of New York et al., and No. 94-1985, Department of Commerce et al. v. City of New York et al., also on certiorari to the same court.
Briefs of amici curiae urging reversal were filed for the Commonwealth of Pennsylvania by Thomas W. Corbett, Jr., Attorney General, and John G. Knorr III, Chief Deputy Attorney General; and for United States Senator Herb Kohl et al. by Brady C. Williamson.
Briefs of amici curiae urging affirmance were filed for the City of Detroit by Linda D. Fegins; and for the Lawyers’ Committee for Civil Rights Under Law et al. by Jonathan L. Greenblatt, Paul C. Saunders, Herbert J. Hansell, Norman Redlich, Barbara R. Arnwine, Thomas J. Henderson, Christopher A. Hansen, Steven R. Shapiro, Samuel Rabinove, Elaine R. Jones, Theodore M. Shaw, Charles Stephen Ralston, and Arthur N. Eisenberg.
Chief Justice Rehnquist
delivered the opinion of the Court.
In conducting the 1990 United States Census, the Secretary of Commerce decided not to use a particular statistical adjustment that had been designed to correct an undercount in the initial enumeration. The Court of Appeals for the Second Circuit held that the Secretary’s decision was subject to heightened scrutiny because of its effect on the right of individual respondents to have their vote counted equally. We hold that the Secretary’s decision was not subject to heightened scrutiny, and that it conformed to applicable constitutional and statutory provisions.
The Constitution requires an “actual Enumeration” of the population every 10 years and vests Congress with the authority to conduct that census “in such Manner as they shall by Law direct.” Art. I, § 2, cl. 3. Through the Census Act, 13 U. S. C. § 1 et seq., Congress has delegated to the Secretary of the Department of Commerce the responsibility to take “a decennial census of [the] population ... in such form and content as he may determine ....” § 141(a). The Secretary is assisted in the performance of that responsibility by the Bureau of the Census and its head, the Director of the Census. See §2; §21 (“[The] Director shall perform such duties as may be imposed upon him by law, regulations, or orders of the Secretary”).
The Constitution provides that the results of the census shall be used to apportion the Members of the House of Representatives among the States. See Art. I, § 2, cl. 3 (“Representatives ... shall be apportioned among the several States . . . according to their respective Numbers . . .”); Arndt. 14, §2 (“Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State . . .”). Because the Constitution provides that the number of Representatives apportioned to each State determines in part the allocation to each State of votes for the election of the President, the decennial census also affects the allocation of members of the electoral college. See Art. II, § 1, cl. 2 (“Each State shall appoint... a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress . . .”). Today, census data also have important consequences not delineated in the Constitution: The Federal Government considers census data in dispensing funds through federal programs to the States, and the States use the results in drawing intrastate political districts.
There have been 20 decennial censuses in the history of the United States. Although each was designed with the goal of accomplishing an “actual Enumeration” of the population, no census is recognized as having been wholly successful in achieving that goal. Cf. Karcher v. Daggett, 462 U. S. 725, 732 (1983) (recognizing that “census data are not perfect,” and that “population counts for particular localities are outdated long before they are completed”); Gaffney v. Cummings, 412 U. S. 735, 745 (1973) (census data “are inherently less than absolutely accurate”). Despite consistent efforts to improve the quality of the count, errors persist. Persons who should have been counted are not counted at all or are counted at the wrong location; persons who should not have been counted (whether because they died before or were born after the decennial census date, because they were not a resident of the country, or because they did not exist) are counted; and persons who should have been counted only once are counted twice. It is thought that these errors have resulted in a net “undercount” of the actual American population in every decennial census. In 1970, for instance, the Census Bureau concluded that the census results were 2.7% lower than the actual population. Brief for Respondents 12.
The undercount is not thought to be spread consistently across the population: Some segments of the population are “undercounted” to a greater degree than are others, resulting in a phenomenon termed the “differential undercount.” Since at least 1940, the Census Bureau has thought that the undercount affects some racial and ethnic minority groups to a greater extent than it does whites. In 1940, for example, when the undercount for the entire population was 5.4%, the undercount for blacks was estimated at 8.4% (and the under-count for whites at 5.0%). Ibid. The problem of the differential undercount has persisted even as the census has come to provide a more numerically accurate count of the population. In the 1980 census, for example, the overall under-count was estimated at 1.2%, and the undercount of blacks was estimated at 4.9%. Ibid.
The Census Bureau has recognized the undercount and the differential undercount as significant problems, and in the past has devoted substantial effort toward achieving their reduction. Most recently, in its preparations for the 1990 census, the Bureau initiated an extensive inquiry into various means of overcoming the impact of the undercount and the differential undercount. As part of this effort, the Bureau created two task forces: the Undercount Steering Committee, responsible for planning undercount research and policy development; and the Undercount Research Staff (URS), which conducted research into various methods of improving the accuracy of the census. In addition, the Bureau consulted with state and local governments and various outside experts and organizations.
Largely as a result of these efforts, the Bureau adopted a wide variety of measures designed to reduce the rate of error in the 1990 enumeration, including an extensive advertising campaign, a more easily completed census questionnaire, and increased use of automation, which among other things facilitated the development of accurate maps and geographic files for the 1990 census. Pet. App. 321a-322a. The Bureau also implemented a number of improvements specifically targeted at eliminating the differential undercount; these included advertising campaigns developed by and directed at traditionally undercounted populations and expanded questionnaire assistance operations for non-English speaking residents. Ibid.
In preparing for the 1990 census, the Bureau and the task forces also looked into the possibility of using large-scale statistical adjustment to compensate for the undercount and differential undercount. Although the Bureau had previously considered that possibility (most recently in 1980), it always had decided instead to rely upon more traditional methodology and the results of the enumeration. See Cuomo v. Baldrige, 674 F. Supp. 1089 (SDNY 1987) (noting that Bureau rejected large-scale statistical adjustment of the 1980 census). In 1985, preliminary investigations by the URS suggested that the most promising method of statistical adjustment was the “capture-recapture” or “dual system estimation” (DSE) approach.
The particular variations of the DSE considered by the Bureau are not important for purposes of this opinion, but an example may serve to make the DSE more understandable. Imagine that one wanted to use DSE in order to determine the number of pumpkins in a large pumpkin patch. First, one would choose a particular section of the patch as the representative subset to which the “recapture” phase will be applied. Let us assume here that it is a section exactly one-tenth the size of the entire patch that is selected. Then, at the next step — the “capture” stage — one would conduct a fairly quick count of the entire patch, making sure to record both the number of pumpkins counted in the entire patch and the number of pumpkins counted in the selected section. Let us imagine that this stage results in a count of 10,000 pumpkins for the entire patch and 1,000 pumpkins for the selected section. Next, at the “recapture” stage, one would perform an exacting count of the number of pumpkins in the selected section. Let us assume that we now count 1,100 pumpkins in that section. By comparing the results of the “capture” phase and the results of the “recapture” phase for the selected section, it is possible to estimate that approximately 100 pumpkins actually in the patch were missed for every 1,000 counted at the “capture” phase. Extrapolating this data to the count for the entire patch, one would conclude that the actual number of pumpkins in the patch is 11,000.
In the context of the census, the initial enumeration of the entire population (the “capture”) would be followed by the postenumeration survey (PES) (the “recapture”) of certain representative geographical areas. The Bureau would then compare the results of the PES to the results of the initial enumeration for those areas targeted by the PES, in order to determine a rate of error in those areas for the initial enumeration (i. e., the rate at which the initial enumeration undercounted people in those areas). That rate of error would be extrapolated to the entire population, and thus would be used to statistically adjust the results of the initial enumeration.
The URS thought that the PES also held some promise for correcting the differential undercount. The PES would be conducted through the use of a system called post-stratification. Thus, each person counted through the PES would be placed into one, and only one, of over 1,000 post-strata defined by five categories: geography; age; sex; status of housing unit (rent versus own); and race (including Hispanic versus non-Hispanic origin). By comparing the post-stratified PES data to the results of the initial enumeration, the Bureau would be able to estimate not only an overall undercount rate, but also an undercount rate for each post-strata. Hence, the statistical adjustment of the census could reflect differences in the undercount rate for each poststrata.
Through the mid-1980’s, the Bureau conducted a series of field tests and statistical studies designed to measure the utility of the PES as a tool for adjusting the census. The Director of the Bureau decided to adopt a PES-based adjustment, and in June 1987, he informed his superiors in the Department of Commerce of that decision. The Secretary of Commerce disagreed with the Director’s decision to adjust, however, and in October 1987, the Department of Commerce announced that the 1990 census would not be statistically adjusted.
In November 1988, several plaintiffs (including a number of the respondents in this action) brought suit in the United States District Court for the Eastern District of New York, arguing that the Secretary’s decision against statistical adjustment of the 1990 census was unconstitutional and contrary to federal law. The parties entered into an interim stipulation providing, inter alia, that the Secretary would reconsider the possibility of a statistical adjustment.
In July 1991, the Secretary issued his decision not to use the PES to adjust the 1990 census. Pet. App. 135a-415a. The Secretary began by noting that large-scale statistical adjustment of the census through the PES would “abandon a two hundred year tradition of how we actually count people.” Id., at 138a. Before taking a “step of that magnitude,” he held, it was necessary to be “certain that it would make the census better and the distribution of the population more accurate.” Ibid. Emphasizing that the primary purpose of the census was to apportion political representation among the States, the Secretary concluded that “the primary criterion for accuracy should be distributive accuracy — that is, getting most nearly correct the proportions of people in different areas.” Id., at 146a-147a.
After reviewing the recommendations of his advisers and the voluminous statistical research that had been compiled, the Secretary concluded that although numerical accuracy (at the national level) might be improved through statistical adjustment, he could not be confident that the distributive accuracy of the census — particularly at the state and local level — would be improved by a PES-based adjustment. Id., at 140a-141a, 200a-201a. In particular, the Secretary noted, the adjusted figures became increasingly unreliable as one focused upon smaller and smaller political subdivisions. Id., at 142a.
The Secretary stated that his decision not to adjust was buttressed by a concern that adjustment of the 1990 census might present significant problems in the future. Id., at 143a. Because small changes in adjustment methodology would have a large impact upon apportionment — an impact that could be determined before a particular methodology was chosen — the Secretary found that statistical adjustment of the 1990 census might open the door to political tampering in the future. The Secretary also noted that statistical adjustment might diminish the incentive for state and local political leaders to assist in the conduct of the initial enumeration. See id., at 143a-144a. In conclusion, the Secretary stated that the Bureau would continue its research into the possibility of statistical adjustment of future censuses, and would maintain its efforts to improve the accuracy and inclusiveness of the initial enumeration. Id., at 145a.
The plaintiffs returned to court. The District Court concluded that the Secretary’s decision violated neither the Constitution nor federal law. See New York v. United States Dept. of Commerce, 822 F. Supp. 906 (EDNY 1993).
Respondents appealed, arguing that the District Court had adopted the wrong standard of review for their constitutional claim, and the Court of Appeals for the Second Circuit reversed by a divided vote. 34 F. 3d 1114 (1994); Pet. App. 1a-40a. The majority looked to a line of precedent involving judicial review of intrastate districting decisions, see, e. g., Karcher v. Daggett, 462 U. S. 725 (1983); Wesberry v. Sanders, 376 U. S. 1 (1964), and found that a heightened standard of review was required here both because the Secretary’s decision impacted a fundamental right, viz., the right to have one’s vote counted, and because the decision had a disproportionate impact upon certain identifiable minority racial groups. 34 F. 3d, at 1128. The court then held that the plaintiffs had shown that the Secretary had failed to make a good-faith effort to achieve equal districts as nearly as possible, id., at 1130, and therefore that the defendants must bear the burden of proving that population deviations were necessary to achieve some legitimate state goal, id., at 1131. The court remanded for an inquiry into whether the Secretary could show that the decision not to adjust was essential for the achievement of a legitimate governmental objective. Ibid.
The dissenting judge stated that he would have affirmed based upon the decision of the District Court. See ibid. He also noted that the majority’s decision created a conflict with two other decisions of the Courts of Appeals. See Detroit v. Franklin, 4 F. 3d 1367 (CA6 1993), and Tucker v. United States Dept. of Commerce, 958 F. 2d 1411 (CA7 1992).
Wisconsin, Oklahoma, and the United States each filed a petition for certiorari. We granted those petitions, and consolidated them for argument. 515 U. S. 1190 (1995). We now reverse.
II
In recent years, we have twice considered constitutional challenges to the conduct of the census. In Department of Commerce v. Montana, 503 U. S. 442 (1992), the State of Montana, several state officials, and Montana’s Members of Congress brought suit against the Federal Government, challenging as unconstitutional the method used to determine the number of Representatives to which each State is entitled. A majority of a three-judge District Court looked to the principle of equal representation for equal numbers of people that was applied to intrastate districting in Wesberry v. Sanders, supra, and held it applicable to congressional apportionment of seats among the States. Noting a significant variance between the population of Montana’s single district and the population of the “ideal district,” the court found that Congress’ chosen method of apportionment violated the principle of Wesberry, and therefore voided the federal statute providing the method of apportionment.
In a unanimous decision, this Court reversed. We began by revisiting Wesberry, a case in which the Court held unconstitutional wide disparities in the population of congressional districts drawn by the State of Georgia. Montana, supra, at 459-460. We recognized that the principle of Wesberry— “ ‘equal representation for equal numbers of people’ ” — had evolved though a line of cases into a strictly enforced requirement that a State “ ‘make a good-faith effort to achieve precise mathematical equality”’ among the populations of congressional districts. See Montana, supra, at 460, quoting Kirkpatrick v. Preisler, 394 U. S. 526, 530-531 (1969) (disparities between congressional districts in Missouri held unconstitutional); see also Karcher v. Daggett, supra (1% disparity between population of New Jersey districts held unconstitutional). Returning to Montana’s challenge to Congress’ apportionment decision, we noted that the Wesberry line of cases all involved intrastate disparities in the population of voting districts that had resulted from a State’s redistricting decisions, whereas Montana had challenged interstate disparities resulting from the actions of Congress. Montana, supra, at 460.
We found this difference to be significant beyond the simple fact that Congress was due more deference than the States in this area. Wesberry required a State to make “a good-faith effort to achieve precise mathematical equality” in the size of voting districts. Kirkpatrick, supra, at 530-531. While this standard could be applied easily to intrastate dis-tricting because there was no “theoretical incompatibility entailed in minimizing both the absolute and the relative differences” in the sizes of particular voting districts, we observed that it was not so easily applied to interstate districting decisions where there was a direct tradeoff between absolute and relative differences in size. Montana, supra, at 461-462. Finding that Montana demanded that we choose between several measures of inequality in order to hold the Wesberry standard applicable to congressional apportionment decisions, we concluded that “[n]either mathematical analysis nor constitutional interpretation provide[d] a conclusive answer” upon which to base that choice. Montana, supra, at 463.
We further found that the Constitution itself, by guaranteeing a minimum of one representative for each State, made it virtually impossible in interstate apportionment to achieve the standard imposed by Wesberry. Montana, supra, at 463. In conclusion, we recognized the historical pedigree of the challenged method of apportionment, and reemphasized that Congress’ “good-faith choice of a method of apportionment of Representatives among the several States ‘according to their respective Numbers’ commands far more deference than a state districting decision that is capable of being reviewed under a relatively rigid mathematical standard.” Montana, supra, at 464.
In Franklin v. Massachusetts, 505 U. S. 788 (1992), we reiterated our conclusion that the Constitution vests Congress with wide discretion over apportionment decisions and the conduct of the census. In Franklin, the State of Massachusetts and two of its registered voters sued the Federal Government, arguing that the method used by the Secretary to count federal employees serving overseas was (among other things) unconstitutional. Restating the standard of review established by Montana, we examined the Secretary’s decision in order to determine whether it was “consistent with the constitutional language and the constitutional goal of equal representation.” See Franklin, supra, at 804; Montana, supra, at 459. After a review of the historical practice in the area, we found that the plaintiffs had not met their burden of proving that a decision contrary to that made by the Secretary would “make representation . . . more equal.” Franklin, 505 U. S., at 806. Concluding that the Secretary’s decision reflected a “judgment, consonant with, though not dictated by, the text and history of the Constitution . . . ,” we held the Secretary’s decision to be well within the constitutional limits on his discretion. Ibid.
In its decision in this action, the Court of Appeals found that a standard more strict than that established in Montana and Franklin should apply to the Secretary’s decision not to statistically adjust the census. The court looked to equal protection principles distilled from the same line of state redistricting cases relied upon by the plaintiffs in Montana, and found that both the nature of the right asserted by respondents — the right to have one’s vote counted equally— and the nature of the affected classes — “certain identifiable minority groups” — required that the Secretary’s decision be given heightened scrutiny. 34 F. 3d, at 1128. The court drew from the District Court’s decision “implicit” findings: that the census did not achieve equality of voting power as nearly as practicable; “that for most purposes and for most of the population [the PES-based] adjustment would result in a more accurate count than the original census; and that the adjustment would lessen the disproportionate under-counting of minorities.” Id., at 1129.
The court recognized two significant differences between the intrastate districting cases and the instant action: first, that this case involves the federal rather than a state government; and second, that constitutional requirements make it impossible to achieve precise equality in voting power nationwide. Ibid. But it found these differences nondetermi-native, deciding that no deference was owed to the Executive Branch on a question of law, and that the “impossibility of achieving precise mathematical equality is no excuse for [the Federal Government] not making [the] mandated good-faith effort.” Ibid. The court found that the respondents here had established a prima facie violation of the Wesberry standard both by showing that the PES-based adjustment would increase numerical accuracy, and by virtue of the fact that “the differential undercount in the 1990 enumeration was plainly foreseeable and foreseen.” 34 F. 3d, at 1130-1131. The court held that the Secretary’s decision would have to be vacated as unconstitutional unless on remand he could show that the decision not to adjust “(a) furthers a governmental objective that is legitimate, and (b) is essential for the achievement of that objective.” Id., at 1131.
We think that the Court of Appeals erred in holding the “one person-one vote” standard of Wesberry and its progeny applicable to the action at hand. For several reasons, the “good-faith effort to achieve population equality” required of a State conducting intrastate redistricting does not translate into a requirement that the Federal Government conduct a census that is as accurate as possible. First, we think that the Court of Appeals understated the significance of the two differences that it recognized between state redistricting cases and the instant action. The court failed to recognize that the Secretary’s decision was made pursuant to Congress’ direct delegation of its broad authority over the census. See Art. I, § 2, cl. 3 (Congress may conduct the census “in such Manner as they shall by Law direct”). The court also undervalued the significance of the fact that the Constitution makes it impossible to achieve population equality among interstate districts. As we have noted before, the Constitution provides that “[t]he number of Representatives shall not exceed one for every 30,000 persons; each State shall have at least one Representative; and district boundaries may not cross state lines.” Montana, 503 U. S., at 447-448.
While a court can easily determine whether a State has made the requisite “good-faith effort” toward population equality through the application of a simple mathematical formula, we see no way in which a court can apply the Wes-berry standard to the Federal Government’s decisions regarding the conduct of the census. The Court of Appeals found that Wesberry required the Secretary to conduct a census that would “achieve voting-power equality,” which it understood to mean a census that was as accurate as possible. 34 F. 3d, at 1129. But in so doing, the court implicitly found that the Constitution prohibited the Secretary from preferring distributive accuracy to numerical accuracy, and that numerical accuracy — which the court found to be improved by a PES-based adjustment — was constitutionally preferable to distributive accuracy. See id., at 1131 (“[T]he Secretary did not make the required effort to achieve numerical accuracy as nearly as practicable,. . . the burden thus shifted to the Secretary to justify his decision not to adjust.. .”). As in Montana, where we could see no constitutional basis upon which to choose between absolute equality and relative equality, so here can we see no ground for preferring numerical accuracy to distributive accuracy, or for preferring gross accuracy to some particular measure of accuracy. The Constitution itself provides no real instruction on this point, and extrapolation from our intrastate districting cases is equally unhelpful.' Quite simply, “[t]he polestar of equal representation does not provide sufficient guidance to allow us to discern a single constitutionally permissible course.” Montana, supra, at 463.
In Montana, we held that Congress’ “apparently good-faith choice of a method of apportionment of Representatives among the several States ‘according to their respective Numbers’” was not subject to strict scrutiny under Wesberry. Montana, supra, at 464. With that conclusion in mind, it is difficult to see why or how Wesberry would apply to the Federal Government’s conduct of the census — a context even further removed' from intrastate districting than is congressional apportionment. Congress’ conduct of the census, even more than its decision concerning apportionment, “commands far more deference than a state districting decision that is capable of being reviewed under a relatively rigid mathematical standard.” Montana, supra, at 464.
Rather than the standard adopted by the Court of Appeals, we think that it is the standard established by this Court in Montana and Franklin that applies to the Secretary’s decision not to adjust. The text of the Constitution vests Congress with virtually unlimited discretion in conducting the decennial “actual Enumeration,” see Art. I, §2, cl. 3, and notwithstanding the plethora of lawsuits that inevitably accompany each decennial census, there is no basis for thinking that Congress’ discretion is more limited than the text of the Constitution provides. See also Baldrige v. Shapiro, 455 U. S. 345, 361 (1982) (noting broad scope of Congress’ discretion over census). Through the Census Act, Congress has delegated its broad authority over the census to the Secretary. See 13 U. S. C. § 141(a) (Secretary shall take “a decennial census of [the] population ... in such form and content as he may determine . . .”). Hence, so long as the Secretary’s conduct of the census is “consistent with the constitutional language and the constitutional goal of equal representation,” Franklin, 505 U. S., at 804, it is within the limits of the Constitution. In light of the Constitution’s broad grant of authority to Congress, the Secretary’s decision not to adjust need bear only a reasonable relationship to the accomplishment of an actual enumeration of the population, keeping in mind the constitutional purpose of the census.
In 1990, the Census Bureau made an extraordinary effort to conduct an accurate enumeration, and was successful in counting 98.4% of the population. See 58 Fed. Reg. 70 (1993); Brief for Federal Parties 28. The Secretary then had to consider whether to adjust the census using statistical data derived from the PES. He based his decision not to adjust the census upon three determinations. First, he held that in light of the constitutional purpose of the census, its distributive accuracy was more important than its numerical accuracy. Second, he determined that the unadjusted census data would be considered the most distributive^ accurate absent a showing to the contrary. And finally, after reviewing the results of the PES in light of extensive research and the recommendations of his advisers, the Secretary found that the PES-based adjustment would not improve distributive accuracy. Each of these three determinations is well within the bounds of the Secretary’s constitutional discretion.
As we have already seen, supra, at 18, the Secretary’s decision to focus on distributive accuracy is not inconsistent with the Constitution. Indeed, a preference for distributive accuracy (even at the expense of some numerical accuracy) would seem to follow from the constitutional purpose of the census, viz., to determine the apportionment of the Representatives among the States. Respondents do not dispute this point. See Brief for Respondents 54 (“Distributive accuracy is an appropriate criterion for judging census accuracy because it calls attention to a concern with the uses to which census data are put”). Rather, they challenge the Secretary’s first determination by arguing that he improperly “regarded evidence of superior numeric accuracy as ‘not relevant’ to the determination of distributive accuracy.” Id., at 39 (quoting Pet. App. 201a); see also Brief for Respondents 51-54. In support of this argument, respondents note that an enumeration that results in increased numerical accuracy will also result in increased distributive accuracy.
We think that respondents rest too much upon the statement by the Secretary to which they refer. When quoted in full, the statement reads: “While the preponderance of the evidence leads me to believe that the total population at the national level falls between the census counts and the adjusted figures, that conclusion is not relevant to the determination of distributive accuracy.” Pet. App. 201a. In his decision, the Secretary found numerical accuracy (in addition to distributive accuracy) to be relevant to his decision whether to adjust. See id., at 157a. Even if the Secretary had chosen to subordinate numerical accuracy, we are not sure why the fact that distributive and numerical accuracy correlate closely in an improved enumeration would require the Secretary to conclude that they correlate also for a PES-based statistical adjustment.
Turning to the Secretary’s second determination, we previously have noted, and respondents do not dispute, the importance of historical practice in this area. See Franklin, supra, at 803-806 (noting importance of historical experience in conducting the census); cf. Montana, 503 U. S., at 465 (“To the extent that the potentially divisive and complex issues associated with apportionment can be narrowed by the adoption of both procedural and substantive rules that are consistently applied year after year, the public is well served . . .”). Nevertheless, respondents challenge the Secretary’s second determination by arguing that his understanding of historical practice is flawed. According to respondents, the Secretary assumed that the census traditionally was conducted via a simple “headcount,” thereby ignoring the fact that statistical adjustment had been used in both the 1970 and 1980 censuses. See Brief for Respondents 4-5.
We need not tarry long with this argument.' The Secretary reasonably recognized that a PES-based statistical adjustment would be a significant change from the traditional method of conducting the census. The statistical adjustments in 1970 and 1980 to which respondents refer were of an entirely different type than the adjustment considered here, and they took place on a dramatically smaller scale. See Cuomo v. Baldrige, 674 F. Supp., at 1107 (rejecting argument that Secretary had to conduct PES-like statistical adjustment of 1980 census and finding that “none of [the] adjustments in 1970 were even remotely similar to the types of wholesale adjustments presently suggested . . .”). Moreover, the PES-based adjustment would have been the first time in history that the States’ apportionment would have been based upon counts in other States. See Pet. App. 251a-252a. Here, the Secretary’s understanding of the traditional method of conducting the census was well founded, as was his establishment of a rebuttable presumption that the traditional method was the most accurate.
The Secretary ultimately determined that the available evidence “tends to support the superior distributive accuracy of the actual enumeration,” id., at 185a, and it is this determination at which respondents direct the brunt of their attack. Respondents contend that the Secretary’s review of the evidence is due no deference from this Court. They argue that the Secretary’s decision is not the sort of “highly technical” administrative decision that normally commands judicial deference, and that regardless of its technical complexity, the Secretary’s review of the evidence presents a constitutional issue that deserves no deference. Respondents contend that the Secretary’s review of the evidence is of dubious validity because the Secretary is admittedly “not a statistician,” id., at 139a, and because his conclusion is at odds with that of the Director of the Census. According
Question: What state is associated with the petitioner?
01. Alabama
02. Alaska
03. American Samoa
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. District of Columbia
11. Federated States of Micronesia
12. Florida
13. Georgia
14. Guam
15. Hawaii
16. Idaho
17. Illinois
18. Indiana
19. Iowa
20. Kansas
21. Kentucky
22. Louisiana
23. Maine
24. Marshall Islands
25. Maryland
26. Massachusetts
27. Michigan
28. Minnesota
29. Mississippi
30. Missouri
31. Montana
32. Nebraska
33. Nevada
34. New Hampshire
35. New Jersey
36. New Mexico
37. New York
38. North Carolina
39. North Dakota
40. Northern Mariana Islands
41. Ohio
42. Oklahoma
43. Oregon
44. Palau
45. Pennsylvania
46. Puerto Rico
47. Rhode Island
48. South Carolina
49. South Dakota
50. Tennessee
51. Texas
52. Utah
53. Vermont
54. Virgin Islands
55. Virginia
56. Washington
57. West Virginia
58. Wisconsin
59. Wyoming
60. United States
61. Interstate Compact
62. Philippines
63. Indian
64. Dakota
Answer:
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songer_casetyp2_geniss
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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.
There are two main issues in this case. The first issue is economic activity and regulation - commercial disputes - insurance disputes. Your task is to determine the second issue in the case. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous".
Elsie PETERSON and Arthur S. Peterson, Appellants, v. SUNSHINE MUTUAL INSURANCE COMPANY, a foreign corporation, Appellee.
No. 16196.
United States Court of Appeals Eighth Circuit.
Dec. 30, 1959.
P. W. Lanier, Jr., Fargo, N. D., for appellants.
Clifford Jansonius, Bismarck, N. D., for appellee.
Before SANBORN, VAN OOSTERHOUT and BLACKMUN, Circuit Judges.
SANBORN, Circuit Judge.
This is an appeal from a declaratory judgment in favor of the Sunshine Mutual Insurance Company, of Sioux Falls, South Dakota, entered February 5, 1959.
The appellants, Elsie Peterson and Arthur S. Peterson, citizens of Minnesota, on August 20, 1956 sustained bodily injuries and property damage when their automobile, traveling on a North Dakota state highway near Garrison, North Dakota, collided with an automobile driven by Walter Mai. The Insurance Company, on or about April 14, 1956, had issued to Richard Mai a policy insuring him, and any person using his 1949 Oldsmobile with his permission, against lia-, bility for bodily injuries and property damage arising out of the use of his automobile. This was the automobile that Walter Mai was driving when the collision occurred and the Petersons were injured. They claimed that the accident and the injuries and property damage sustained by them as a result were due to the negligence of Walter Mai and that his liability was covered by the policy issued to Richard Mai. The Company disclaimed liability, and on January 10, 1958, brought this action under the Federal Declaratory Judgment Act, 28 U.S.C. § 2201, against Walter Mai, Richard Mai, Elsie Peterson and Arthur S. Peterson, basing jurisdiction upon diversity of citizenship and amount in controversy. The Company asked in its complaint that the court determine the rights and liabilities of the parties under the provisions of the policy.
The case was tried to the court, the controlling issue being whether Walter Mai was, at the time of the accident, using the automobile referred to in the policy with the permission of Richard Mai, the named insured, within the meaning of the “omnibus clause” of the policy. The court determined that Walter Mai was using the automobile of Richard without his permission, and that the Company was not liable under the policy for the injury or damage for which Walter Mai might be held responsible. Judgment was entered accordingly, and this appeal followed.
The facts found by the court, and upon which it based its conclusion that the Company was not liable, under its policy, for injury and damage sustained by the Petersons, for the most part are not in issue. Findings which are uncontrovert-ed are to the effect that the automobile which Walter Mai was driving belonged to his brother Richard; that within approximately one month after purchasing the automobile and procuring the automobile liability policy in suit, Richard left North Dakota; that he secured employment in Montana and became a resident of that State; that he left his automobile with his brother Theodore Mai at the latter’s residence in Dunn County, North Dakota, for Theodore’s unrestricted use; that within a few days after Richard had left North Dakota, Walter obtained the automobile from Theodore, with Theodore’s permission, and used and continued to use and operate it as his (Walter’s) own until the time of the accident; that, after having taken possession of the automobile, Walter made four monthly installment payments upon the purchase price; that at the time of the accident the use of the automobile by Walter was without express permission from Richard and was solely for Walter’s own purposes; and that the possession, use, control and operation of the automobile by Walter was unknown to Richard and was without his express consent or acquiescence. The court further found that this use of the automobile by Walter was without Richard’s implied consent and that Richard had not authorized or granted permission to Theodore to transfer possession of the automobile to Walter for his use.
The question, then, is whether, under applicable North Dakota law, the permission given by Theodore to Walter to possess and use Richard’s automobile compelled the conclusion that Walter was an additional insured by virtue of the “omnibus clause” of the policy.
In Johnson v. State Farm Mut. Automobile Ins. Co., 8 Cir., 194 F.2d 785, which arose in Nebraska, and which factually is similar to the instant case, this Court sustained the trial court’s determination that, under Nebraska law, the automobile liability insurer was not liable. We said at page 787 of 194 F.2d:
“There is no occasion for us further to discuss appellant’s contention that the trial court’s declaration of Nebraska law was erroneous, other than perhaps to add, as we have many times previously said, that, in diversity of citizenship cases, on unestablished questions of state law, we will accept the trial judge’s considered appraisal of the local law of his jurisdiction, unless we have a clear conviction that he is in error. See e. g., National Bellas Hess, Inc. v. Kalis, 8 Cir., 191 F,2d 739; Western Cas. & Surety Co. v. Coleman, 8 Cir., 186 F.2d 40; Nolley v. Chicago, M., St. P. & P. R. Co., 8 Cir., 183 F.2d 566.”
See, also, Bekaert v. State Farm Mutual Automobile Ins. Co., 8 Cir., 230 F.2d 127.
It is argued on behalf of the appellants that, under the facts of the instant case, the Supreme Court of North Dakota would hold that, under the applicable law of that State, the policy covered Walter Mai as an additional assured while he was driving the automobile of Richard with Theodore Mai’s permission. The appellants rely upon language found in the case of Persellin v. State Automobile Ins. Ass’n, 75 N.D. 716, 32 N.W.2d 644. If Theodore Mai had been, at the time of the accident, in possession and control of, and a passenger in, the automobile driven by Walter, the Persellin case would sustain the appellants’ contention. A permittee can, of course, use or share in the use of an automobile without actually driving it, and, under North Dakota law as announced in the Persellin case, make anyone he asks to drive it for him legally responsible for the use of the automobile and therefore an additional insured under an “omnibus clause” of a liability policy. What was said by the Supreme Court of North Dakota in the Persellin case was said with relation to the facts of that case, where the permittee — unlike Theodore Mai— was in control of the automobile and was riding with the driver, Persellin, who had been asked to drive by the permittee.
In denying the petition for a rehearing of the Persellin case, the North Dakota Supreme Court said at page 647 of 32 N.W.2d:
“Thus if the user of the automobile has the permission of the named insured to use and if such user is using the automobile for a permitted purpose at the time a legal liability is incurred, then the user and any other person legally responsible for the use are insured persons under the policy. We see no other reasonable construction.”
In the instant case the automobile of Richard Mai was not being used for or by Theodore, nor at his request or direction.
In a situation such as is present here, where the case turns upon a doubtful question of State law, this Court will accept the considered views of the trial judge as to the applicable local law, unless convinced of error. As we said recently in Homolla v. Gluck, 8 Cir., 248 F.2d 731, 733:
“This case in principle differs in no controlling respect from others in which this Court has consistently refused to attempt to outprediet, out-forecast or outguess a trial judge with respect to a doubtful question of the law of his State.”
One reasonably may believe that the use and operation of the Richard Mai automobile by Walter Mai, without the knowledge, consent or permission of Richard, and with only the consent of Theodore, who, at the time of the accident, was not a passenger in and had neither possession nor control of the automobile, did not make Walter Mai an additional insured within the meaning of the “omnibus clause” of the policy. It is our opinion that the ruling of the District Court is not based upon any misconception or misapplication of the applicable local law.
The judgment appealed from is affirmed.
. The “omnibus clause” of the policy read as follows:
“With respect to the insurance for bodily injury liability and for property damage liability the unqualified word ‘insured’ includes the named insured and, if the named insured is an individual, his spouse if a resident of the same house-bold, and also includes any person while using the automobile and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is by the named insured or such spouse or with the permission of either. * * * ”
Question: What is the second general issue in the case, other than economic activity and regulation - commercial disputes - insurance disputes?
A. criminal
B. civil rights
C. First Amendment
D. due process
E. privacy
F. labor relations
G. economic activity and regulation
H. miscellaneous
Answer:
|
songer_r_bus
|
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 "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.
UNITED STATES v. HILLCREST INV. CO.
No. 12936.
Circuit Court of Appeals, Eighth Circuit.
Jan. 31, 1945.
Helen Goodner, Sp. Asst, to the Atty. Gen. (Samuel O. Clark, Jr. Asst. Atty. Gen., Sewall Key, A. F. Prescott, and George J. Laikin, Sp. Assts. to the Atty. Gen., Maurice M. Milligan, U. S. Atty., and Thomas A. Costolow, Asst. U. S. Atty., both of Kansas City, Mo., on the brief), for appellant.
Frank C. Mann, of Springfield, Mo. (Mann & Mann, of Springfield, Mo., on the brief), for appellee.
Before SANBORN, THOMAS, and RIDDICK, Circuit Judges.
RIDDICK, Circuit Judge.
The question on this appeal is whether the taxpayer is entitled to a credit for 1937 under section 26(c) (1) of the Revenue Act of 1936, 26 U.S.C.A. Int.Rev.Acts, page 836, against the surtax imposed by section 14 of the Act, 26 U.S.C.A. Int.Rev.Acts, page 823, on corporate profits earned but not distributed as dividends during the taxable year. The section under which the credit is claimed by the taxpayer and denied by the Commissioner permits a deduction from the corporate adjusted net income to the extent that such income could not be distributed as dividends “without violating a provision of a written contract executed by the corporation prior to May 1, 1936, which provision expressly deals with the payment of dividends.” The claim of the taxpayer was sustained by the District Court, and the United States appeals.
The taxpayer is a Missouri corporation, engaged in business in Springfield, Missouri. Prior to June 20, 1935, it applied to the Southern Missouri Trust Company, a Springfield bank, for a loan of $25,250. The bank agreed to make the loan on condition that the taxpayer, by resolution of its board of directors, agree to pay no dividends until the loan and all renewals were fully paid, and on the further condition that certain collateral be deposited as security for the loan. The negotiations between the bank and the taxpayer were conducted orally up to this point. On June 20, 1935, the board of directors of the taxpayer adopted the following resolution:
“Be it resolved that the President, A. J. Eisenmayer, Jr., acting with the Secretary, W. C. Eisenmayer, of the Plillerest Investment Company, be and are hereby authorized to borrow money from The Southern Missouri Trust Company of Springfield, Missouri, from time to time, not exceeding $26,750 at any one time on such terms as said acting officer or officers may approve; and such acting officer or officers arc hereby authorized to execute and deliver to the Southern Missouri Trust Company of Springfield, Missouri, the obligation or obligations of this company for the same; and are further authorized to pledge out of the monthly rentals from the Hotel Ozarks the sum of $1,000 per month to be applied as part payment monthly on the amount or amounts borrowed from the Southern Missouri Trust Company. When obligation or obligations mature said officer or officers are authorized to renew said loans in part or in full until paid.
“As a consideration for the Southern Missouri Trust Company, Springfield, Missouri, granting the above mentioned loan, and in order to comply with their demand, it was unanimously agreed by the Board of Directors of the Hillcrest Investment Company that no dividend would be paid to the stockholders of the Hillcrest Investment Company until the above mentioned loan be paid in full.
“This resolution shall be in force and good until rescinded and notice of rescission given in writing to the Southern Missouri Trust Company.”
This resolution was spread upon the minutes of the taxpayer, and on June 22, 1935, a certified copy of the resolution was delivered by the taxpayer to the bank, which accepted the resolution without objection as a compliance with its demand upon the company for an agreement not to pay dividends until the requested loan had been fully paid; and, in reliance upon the resolution, the bank lent the taxpayer the sum of $25,250, for which the taxpayer issued to the bank its promissory note for the amount of the loan. A certified copy of the resolution was attached to the note and retained by the bank as a part of the note and of each renewal. The making of the loan was approved by the board of directors of the bank and entered in the minutes of a meeting held on June 24, 1935.
The taxpayer’s note was made payable December 18, 1935. Payments upon the principal and renewals for the balance of the note were made from time to time. On December 31, 1937, there remained unpaid $17,250 of the original debt of $25,250.
Of the total tax assessed against the taxpayer for the year ending December 31, 1937, $3,314.42 was assessed because of the disallowance by the Commissioner of Internal Revenue of the claim of the taxpayer that it was entitled to a credit under the provisions of section 26(c) (1) of the Revenue Act of 1936. Having paid the tax as assessed by the Commissioner, the taxpayer claimed a refund of this amount, asserting that the written record of the terms demanded by the bank for the making of the loan, as shown by the certified copy of the resolution, duly signed by its president .and secretary, and delivered and accepted by the bank as the taxpayer’s agreement that it would not distribute any of its earnings in the form of dividends until the loan was repaid in full, constituted a written contract entitling it to the refund claimed. The Commissioner assigned as a reason for the original assessment of the deficiency that “The resolution of the board of directors of your company does not meet the statutory requirements of section 26(c) (1) of the Revenue Act of 1936.” The reason assigned by the Commissioner for the denial of taxpayer’s claim for refund was “that corporate charter provisions are not to be considered as written contracts executed by the taxpayer within the meaning of Sec. 26(c) (1).”
The United States contends that the judgment of the District Court sustaining the taxpayer’s claim must be reversed because: (1) the corporate resolution set out above is not a contract within the meaning of section 26(c) (1) of the Revenue Act of 1936; (2) the corporate resolution does not contain a binding restriction against the payment of dividends; (3) the taxpayer could have paid the indebtedness in 1937 and removed the restriction, if any, against the payment of dividends; and (4) the credit claimed under section 26(c) (1) is precluded by the proper computation of the tax even though the restriction claimed existed.
The last two assignments are not open to our consideration. Neither issue was raised in the District Court. Ralph Knight, Inc., v. Mantel, 8 Cir., 135 F.2d 514. The taxpayer’s complaint in the District Court set up nothing more than its claim for a credit on the tax assessed against it on the ground that it could not distribute dividends in the taxable year without violating the provisions of a written contract executed prior to May 1, 1936, and expressly dealing with dividends. The answer of the United States was merely a denial of the claim asserted in taxpayer’s complaint. The stipulation of facts upon which the case was tried set out the resolution relied on by the taxpayer and the facts concerning its delivery to and acceptance by the bank, and contained the following paragraph: “In the event the Court finds the issues in favor of the plaintiff judgment shall be rendered in favor of the plaintiff and against the defendant in the sum of $3,314.42, together with interest thereon at the rate of six (6%) per cent per annum from July 31, 1940, as provided by law.”
In its memorandum opinion the District Court, after reciting the contentions of the parties arising under section 26(c) (1) of the Revenue Act of 1936, said [55 F.Supp. 147, 148]: “The only question, therefore, for decision is whether the plaintiff was in fact under the restriction of a contract in writing ‘expressly’ dealing with the payment of dividends and forbidding their payment.” Nothing in the record indicates that the issues on the assignments under discussion were ever presented in the District Court.
We conclude that the first and second grounds urged for reversal must be denied. The right to a credit under section 26(c) (1) “must be found exclusively in the language of the contract and be demonstrated completely by it.” Helvering v. Northwest Bancorporation, 8 Cir., 140 F. 2d 958, 962. The section grants a special exemption from a tax generally imposed by the Act of 1936 and must be strictly construed. Helvering v. Northwest Steel Rolling Mills, 311 U.S. 46, 49, 61 S.Ct. 109, 85 L.Ed. 29. The burden is upon the taxpayer claiming the credit allowed by the section in question to show compliance with the exact terms of the section without resort to implication. Helvering v. Ohio Leather Co., 317 U.S. 102, 106, 63 S.Ct. 103, 87 L. Ed. 113. The contract relied on as the basis for the credit claimed must be enforcible against the taxpayer and must expressly deal with the payment of dividends. See Harding Glass Co. v. Commissioner, 8 Cir., 142 F.2d 41, 44; Valentine-Clark Corporation v. Commissioner, 8 Cir., 137 F.2d 481; Hobbs-Western Co. v. Commissioner, 8 Cir., 133 F.2d 165; Helvering v. N. O. Nelson Co., 8 Cir., 133 F.2d 846; Mastín Realty & Mining Co. v. Commissioner, 8 Cir., 130 F.2d 1003. The contract relied on by the taxpayer in this case meets the test stated in the authorities cited.
In Mastín Realty & Mining Co. v. Commissioner, supra, we held that a resolution adopted by the board of directors of a corporation and spread upon its minutes, reciting that the liability of the company for money borrowed for current financing should be discharged in full before the declaration of any dividends within each year, was, in the facts of that case, a mere declaration of corporate policy. This court pointed out in its opinion that nothing in the resolution connected it with any particular debt or creditor of the corporation, nor showed that it was adopted as written evidence of the corporation’s agreement with any particular creditor, and further that it was not signed by the officers of the corporation usually authorized to execute contracts, nor delivered to the creditor of the corporation with whom the contract was claimed to have been made. The opposite of this situation exists in the present case. The resolution in this case shows on its face that it was adopted in response to the demand of the bank as the agreement on which it was willing to lend the corporation the money for which it was indebted at the end of the taxable year, and to evidence in writing the corporation’s agreement that it would not distribute dividends while the money borrowed from the bank remained unpaid. Moreover, a certified copy of the resolution, duly executed by the president and secretary of the taxpayer, was delivered to the bank and accepted by it as the corporation’s agreement not to distribute dividends while its debt to the bank remained unpaid. On the faith of the written resolution dealing expressly with the payment of dividends and expressly prohibiting the payment of dividends by the corporation, certified by the president and secretary of the corporation and by them delivered to the bank, the corporation received the loan for which it had applied, and became bound to the bank according to the terms of the resolution. The resolution meets all the terms of the contract required by section 26(c) (1). Monarch Theatres v. Helvering, 2 Cir., 137 F.2d 588, 590, 591. Cf. Lehigh Structural Steel Co. v. Commissioner, 3 Cir., 127 F.2d 67.
Nor does the inclusion in the resolution of the provision that “This resolution shall be in force and good until rescinded and notice of rescission is given in writing to the Southern Missouri Trust Company” destroy its binding effect as a contract. Obviously, section 26(c) (1) presupposes a contract binding upon the corporation as a condition for the allowance of the credit provided by the section. But it is also obvious that the question of whether a particular contract, otherwise meeting the requirements of section 26(c) (1), is enforcible against the taxpayer claiming the credit allowed by the section does not arise under Federal law but under the controlling State law. Morgan v. Commissioner, 309 U.S. 78, 80, 626, 60 S.Ct. 424, 84 L.Ed. 585; Blair v. Commissioner, 300 U.S. 5, 9, 57 S.Ct. 330, 81 L.Ed. 465.
In the present case the taxpayer relies upon a written contract which, as required by the Federal law, is executed by the corporation, deals expressly with dividends, and expressly prohibits their payment. The question is whether the prohibition of the payment of dividends is valid and binding on the taxpayer, because of the inclusion in the contract of a provision for its rescission by the taxpayer upon certain conditions. It is admitted that the power of rescission has never been exercised by the taxpayer. The question concerns the construction of the contract and not the construction of the Federal act. We think it can not be doubted that the taxpayer in this case was bound by its agreement with the bank not to distribute dividends until anji loan made by the bank on the faith of the corporation’s agreement to that effect was repaid in full. The contract must be construed as a whole, all of its provisions read together, and a construction adopted, if possible, which will render none of its terms meaningless. Paisley v. Lucas, 346 Mo. 827, 143 S.W.2d 262, 268; E. I. Dupont de Nemours & Co. v. Claiborne-Reno Co., 8 Cir., 64 F.2d 224, 227, 228, 89 A.L.R. 238. The resolution authorized the president and secretary of the taxpayer to borrow money from time to time from the bank in such amounts as they thought necessary, not to exceed $26,750, to borrow the money from the bank on such terms as the authorized officers should approve, to give the taxpayer’s notes as evidence of the loans, to renew them from time to time, and to pledge certain collateral as security for them. The provision for written notice to the bank must be given some effect, and, if it is given any, it must be construed to mean that the taxpayer reserved the right to terminate the power of its officers authorized by the resolution only after notice to the bank. It can not in reason be said that, because of the right of rescission reserved to the taxpayer, it retained the power under the resolution to deny the authority conferred upon its officers after its exercise, or to withdraw at will from the agreements which the resolution authorized the officers to make with the bank in order to secure a loan and on the faith of which the bank made the loan to the taxpayer.
The judgment of the District 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_respond2_8_3
|
F
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed respondent. The nature of this litigant falls into the category "miscellaneous", specifically "fiduciary, executor, or trustee". Your task is to determine which of the following specific subcategories best describes the litigant.
FARMERS STATE BANK OF YUMA, Plaintiff-Appellant, v. Harold HARMON, Individually and as Trustee for the Harold Harmon Family Trust, Defendants-Appellees, Ricky A. Harmon and Randy L. Harmon, Intervenors-Appellees.
No. 84-1156.
United States Court of Appeals, Tenth Circuit.
Nov. 26, 1985.
Dana F. Strout, Denver, Colo, and Steven E. Shinn, Yuma, Colo., for plaintiff-appellant.
Gary Scritsmier of Kelley, Scritsmier, Moore & Byrne, P.C., North Platte, Neb., for defendants-appellees.
John N. Dahle of Grant, McHendrie, Haines and Crouse, Denver, Colo., for intervenors-appellees..
Before McKAY and SETH, Circuit Judges, and BRETT, District Judge.
Honorable Thomas R. Brett, United States District Judge for the District of Oklahoma, sitting by designation.
McKAY, Circuit Judge.
Farmers State Bank of Yuma, Colorado, appeals from the trial court’s order granting summary judgment in favor of Ricky Harmon and Randy Harmon, two of three co-trustees of the Harold Harmon Family Trust. The trial court based its decision on the ground that Harold Harmon, the third co-trustee of the family trust, did not have the authority to bind the trust when he executed certain documents with the Bank. The issue on appeal is whether there exist genuine issues of material fact that make improper the trial court’s grant of summary judgment.
In February of 1979, Harold Harmon and his wife created two trusts. Mr. Harmon was the sole trustee of the first trust, entitled “Harold Harmon Trust”. Mr. Harmon and two of his minor sons, Ricky Harmon and Randy Harmon, were appointed co-trustees of a second trust created the same day, entitled “Harold Harmon Family Trust.” All three acknowledged their acceptance of trusteeship by signing the trust instruments.
Mr. Harmon and two other individuals were the principal shareholders of a corporation known as Alfalfa Products, Inc. On July 29, 1980, Alfalfa Products, Inc. borrowed a large sum of money from the Bank. The Bank required Mr. Harmon to sign a guarantee agreement, pursuant to which Mr. Harmon guaranteed to repay 35 percent of Alfalfa Products, Inc.’s borrowings in the event the corporation defaulted. Mr. Harmon signed the guarantee agreement as “Harold Harmon” and as “Harold Harmon, Trustee” under a typed legend indicating that he was signing on behalf of the Harold Harmon Family Trust.
On the same day, Mr. Harmon himself borrowed money from the Bank and executed a promissory note. Mr. Harmon signed the promissory note “Harold Harmon” and “Harold Harmon, Trustee.” Thereafter, from time to time, Mr. Harmon signed renewal notes covering his personal borrowings, the last renewal note being dated December 30, 1981. That note bore the signatures “Harold Harmon” and “Harold Harmon, Trustee.”
Neither Ricky nor Randy Harmon, the remaining co-trustees of the family trust, knew their father had signed the loan guarantee or the promissory notes on behalf of the family trust. Ricky Harmon had reached his majority before Mr. Harmon entered into any of these transactions with the Bank.
Mr. Harmon failed to make payments pursuant to the guarantee agreement and the promissory note. The Bank sued Mr. Harmon individually and as trustee of the Harold Harmon Family Trust. Ricky and Randy Harmon intervened and moved for summary judgment, arguing that Mr. Harmon had exceeded his authority to bind the family trust. The trial court granted the intervenor’s motion and dismissed the Bank’s claims against the trust.
The Bank argues that summary judgment was improper because genuine issues of fact existed as to: (1) whether Ricky and Randy Harmon lacked capacity to accept their positions as co-trustees; (2) whether Ricky and Randy Harmon accepted their positions as co-trustees; (3) whether the Harold Harmon Family Trust was valid; and (4) whether the Bank had actual knowledge that Mr. Harmon lacked the authority to bind the family trust.
The parties agree that Nebraska law controls the issues in this case.
I. Capacity to Accept Trusteeship
The Bank asserts that summary judgment was improper because a question of fact exists as to whether Ricky and Randy Harmon lacked the legal capacity, because of their minor status, to accept their positions as co-trustees, and whether they accepted those positions. The Bank argues that if Ricky and Randy were without capacity to serve as co-trustees, then, under the terms of the trust, Mr. Harmon succeeded to their powers and had the authority to bind the trust.
Whether Ricky and Randy could accept trusteeship raises a question of law, not a question of fact. It is undisputed that when the family trust was executed, Randy was thirteen years old and Ricky was seventeen years old. Record, vol. 3, at 295.
The leading authorities agree that a minor has the capacity to take and hold property in trust. Restatement (Second) of Trusts § 91 (1977); G. Bogert, The Law of Trusts and Trustees § 127 (2d ed. rev. 1977); Scott on Trusts § 91 (3rd ed. 1967). On the other hand, these authorities reason that a minor lacks the capacity to administer a trust because his contracts and conveyances may be voidable by him when he reaches his majority. See, e.g., Bogert, supra; Scott on Trusts, supra. There is authority to the contrary, however. See, e.g., Levin v. Ritz, 17 Misc. 737, 743-44, 41 N.Y.Supp. 405 (1895).
The Harmon brothers had the capacity to accept their trusteeship at the time of its creation as a matter of law, notwithstanding their minority. There is no provision in the Nebraska Trustees’ Powers Act nor any other Nebraska statute reflecting a legislative policy to disqualify minors from holding title to property in their own name, either personally or as trustees. The only challenge to their acceptance is based on the notion that they lacked legal capacity to accept on the day the trust was created and signed by the brothers. There is no question that they signed the last page of the Harold Harmon Family Trust under the recital “do hereby accept the trusteeship thereunder and agree to be bound by the terms and conditions thereof.” Record, vol. 1, at 87. Even if any doubt remained under Nebraska law as to the minors’ capacity to accept their trusteeship when executed, the Bank stipulated in the pretrial order that “at all relevant times, intervenors, in addition to Harold Harmon, were co-trustees of the Harold Harmon Family Trust____” Record, vol. 3, at 350. This stipulation is binding on the Bank. Morelock v. N.C.R. Corp., 586 F.2d 1096, 1107 (6th Cir.1978), cert. denied, 441 U.S. 906, 99 S.Ct. 1995, 60 L.Ed.2d 375 (1979).
We do not reach the issue of whether minors are capable of administering trusts because at the time Mr. Harmon signed the guarantee agreement and the note on July 29,1980, Ricky Harmon was nineteen years old and had reached his majority under Nebraska law. See Neb.Rev.Stat. § 30-2209(26) (1979). Thus, on the dates of the transactions which are the subject of the Bank’s claims, at least two, if not three, co-trustees of the Harold Harmon Family Trust had the authority to administer the trust. In Nebraska, where there are two trustees to a trust, the powers conferred upon them can properly be exercised only by both trustees, unless otherwise provided by the terms of the trust. Neb.Rev.Stat. § 30-2823(2) (1984 Cum.Supp.). The trust does not so provide.
II. Validity of the Trust
The Bank has attempted to attack the trust as being invalid — in effect, nonexistent. The thrust of its argument is that the trust was a sham because of the alleged total control of Ricky and Randy by their father. The bank makes this argument notwithstanding it’s pretrial stipulation that: “At all relevant times, the Harold Harmon Family Trust and the Harold Harmon Trust were in full force and effect, and had not been amended.” Record, vol. 3, at 350.
We choose not to participate in the Bank’s game of semantics. The unambiguous language speaks for itself. The Bank has admitted the validity of the trust and is bound by its stipulation. Morelock v. N.C.R. Corp., 586 F.2d 1096, 1107 (6th Cir. 1978), cert. denied, 441 U.S. 906, 99 S.Ct. 1995, 60 L.Ed.2d 375 (1979).
Additionally, the manner of relief sought by the Bank is consistent with the Bank’s admission that the Harold Harmon Family Trust is valid. Rather than seeking a judgment invalidating the family trust, the Bank sought a judgment against Mr. Harmon “as trustee of the Harold Harmon Family Trust.” Plaintiff has never amended its complaint so as to pursue an alternative remedy. Both the Bank’s complaint and the pretrial stipulations establish that no question of fact exists regarding the validity of the Harold Harmon Family Trust.
III. Actual Knowledge
The Bank claims that a question of fact exists as to whether it had “actual knowledge” of Mr. Harmon’s lack of authority to bind the family trust. Lack of such “actual knowledge,” it argues, would give it protection under Neb.Rev.Stat. § 30-2824 (1984 Cum.Supp.), which provides:
With respect to a third person dealing with a trustee or assisting a trustee in the conduct of a transaction, the existence of trust powers and their proper exercise by the trustee may be assumed without inquiry. The third person is not bound to inquire whether the trustee has power to act or is properly exercising the power; and a third person, without actual knowledge that the trustee is exceeding the trustee’s powers or properly exercising them, is fully protected in dealing with the trustee as if the trustee possessed and properly exercised the powers such trustee purports to exercise____
(Emphasis added.)
Specifically, the Bank argues that a question of fact exists as to whether Mr. Starnes, the Bank’s president, had in his possession and reviewed the Harold Harmon Family Trust before July 29, 1980, the date Mr. Harmon signed the guarantee agreement and the promissory note. However, the trial court “found, concluded and held” that Mr. Starnes had actual knowledge — or certainly notice equivalent to actual knowledge — of Mr. Harmon’s lack of authority to bind the trust. Record, vol. 4, at 6. The record leaves nothing for a fact finder to resolve on this issue.
Mr. Harmon testified that Mr. Starnes had in his possession and reviewed both the Harold Harmon Family Trust and the Harold Harmon Trust before July 29, 1980. Mr. Starnes never directly rebutted this testimony. At one point he equivocated as to whether the time was before or after July 29, 1980, but he gave no positive testimony to that effect. Other evidence unequivocally demonstrates that Mr. Starnes had both trusts in his possession and read them before July 29, 1980. Mr. Starnes testified that: (1) on July 14, 1980, he requested that Mr. Harmon furnish him with copies of both trusts; (2) within a matter of days of his request, he received both trusts; (3) he reviewed the trusts, including the provisions about trust purposes, benefieiaries, trustees, and trust names; (4) he then selected the name “Harold Harmon Family Trust” to be typed on the Alfalfa Products, Inc. loan agreement above the line where the signature “Harold Harmon, Trustee” appears; (5) he prepared the guarantee agreement before July 29, 1980; and (6) he concluded from reading the Harold Harmon Family Trust that Mr. Harmon had the authority to sign the guarantee on behalf of the trust. There is no affirmative evidence in the record to contradict the clear and unequivocal testimony of Mr. Starnes that he had in his possession and reviewed the trusts prior to July 29, 1980.
The Bank further asserts that even if Mr. Starnes read the family trust before July 29, 1980, he did not have a correct subjective understanding that Mr. Harmon did not have authority to bind the family trust and, therefore, did not have “actual knowledge” to that effect. No Nebraska case interprets “actual knowledge” as used in Neb.Rev.Stat. § 30-2824 (1984 Cum. Supp.). However, we do not believe that the Nebraska Supreme Court would require a “correct subjective understanding” under the statute. So long as the charged party has actual knowledge of what the trust says, he is charged with actual knowledge of what it means. The trust is pregnant with the fact that Mr. Harmon and his two sons were co-trustees of the trust. It would be impossible to glance at even the first page without knowing that fact. Under all the evidence in the record, there is no room left for a factual dispute about Mr. Starnes’ actual knowledge regarding the number and identity of the co-trustees.
The Bank cannot gain protection under Neb.Rev.Stat. § 30-2824 simply by asserting that it did not correctly understand the facts or the information it acquired. Merely stating that an issue exists does not prevent the granting of summary judgment. Accordingly, the Bank’s insistence that it never had “actual knowledge” as that term is used in Neb.Rev.Stat. § 30-2824 cannot defeat a motion for summary judgment.
AFFIRMED.
Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "miscellaneous", specifically "fiduciary, executor, or trustee". Which of the following specific subcategories best describes the litigant?
A. trustee in bankruptcy - institution
B. trustee in bankruptcy - individual
C. executor or administrator of estate - institution
D. executor or administrator of estate - individual
E. trustees of private and charitable trusts - institution
F. trustee of private and charitable trust - individual
G. conservators, guardians and court appointed trustees for minors, mentally incompetent
H. other fiduciary or trustee
I. specific subcategory not ascertained
Answer:
|
sc_lcdispositiondirection
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the decision of the court whose decision the Supreme Court reviewed was itself liberal or conservative. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. The lower court's decision direction is unspecifiable if the manner in which the Supreme Court took jurisdiction is original or certification; or if the direction of the Supreme Court's decision is unspecifiable and the main issue pertains to private law or interstate relations
Thomas E. PEREZ, Secretary of Labor, et al., Petitioners
v.
MORTGAGE BANKERS ASSOCIATION et al.
Jerome Nickols, et al., Petitioners
v.
Mortgage Bankers Association.
Nos. 13-1041
13-1052.
Supreme Court of the United States
Argued Dec. 1, 2014.
Decided March 9, 2015.
Edwin S. Kneedler, Washington, DC, for Petitioners.
Allyson N. Ho, Dallas, TX, for Respondents.
Donald B. Verrilli, Jr., Solicitor General, Counsel of Record, Department of Justice, Washington, DC, for Petitioners.
Sam S. Shaulson, Morgan, Lewis & Bockius LLP, New York, NY, Michael W. Steinberg, Morgan, Lewis & Bockius LLP, Washington, DC, Allyson N. Ho, Counsel of Record, John C. Sullivan, Morgan, Lewis & Bockius LLP, Dallas, TX, for Respondent Mortgage Bankers Association.
M. Patricia Smith, Solicitor of Labor, Jennifer S. Brand, Associate Solicitor, Paul L. Frieden, Counsel for Appellate Litigation, Rachel Goldberg, Senior Attorney, U.S. Department of Labor, Washington, DC, Donald B. Verrilli, Jr., Solicitor General, Counsel of Record, Stuart F. Delery, Assistant Attorney General, Edwin S. Kneedler, Deputy Solicitor General, Anthony A. Yang, Assistant to the Solicitor General, Douglas N. Letter, Anthony J. Steinmeyer, Attorneys, Department of Justice, Washington, DC, for Federal Petitioners.
Adam W. Hansen, Counsel of Record, Nichols Kaster, LLP, San Francisco, CA, Paul J. Lukas, Rachhana T. Srey, Nichols Kaster, PLLP, Minneapolis, MN, Sundeep Hora, Alderman, Devorsetz & Hora PLLC, Washington, DC, for Petitioners.
Opinion
Justice SOTOMAYORdelivered the opinion of the Court.
When a federal administrative agency first issues a rule interpreting one of its regulations, it is generally not required to follow the notice-and-comment rulemaking procedures of the Administrative Procedure Act (APA or Act). See 5 U.S.C. § 553(b)(A). The United States Court of Appeals for the District of Columbia Circuit has nevertheless held, in a line of cases beginning with Paralyzed Veterans of Am. v. D.C. Arena L.P.,117 F.3d 579 (1997), that an agency must use the APA's notice-and-comment procedures when it wishes to issue a new interpretation of a regulation that deviates significantly from one the agency has previously adopted. The question in these cases is whether the rule announced in Paralyzed Veteransis consistent with the APA. We hold that it is not.
I
A
The APA establishes the procedures federal administrative agencies use for "rule making," defined as the process of "formulating, amending, or repealing a rule." § 551(5). "Rule," in turn, is defined broadly to include "statement [s] of general or particular applicability and future effect" that are designed to "implement, interpret, or prescribe law or policy." § 551(4).
Section 4 of the APA, 5 U.S.C. § 553, prescribes a three-step procedure for so-called "notice-and-comment rulemaking." First, the agency must issue a "[g]eneral notice of proposed rule making," ordinarily by publication in the Federal Register.§ 553(b). Second, if "notice [is] required," the agency must "give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments." § 553(c). An agency must consider and respond to significant comments received during the period for public comment. See Citizens to Preserve Overton Park, Inc. v. Volpe,401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971); Thompson v. Clark,741 F.2d 401, 408 (C.A.D.C.1984). Third, when the agency promulgates the final rule, it must include in the rule's text "a concise general statement of [its] basis and purpose." § 553(c). Rules issued through the notice-and-comment process are often referred to as "legislative rules" because they have the "force and effect of law." Chrysler Corp. v. Brown,441 U.S. 281, 302-303, 99 S.Ct. 1705, 60 L.Ed.2d 208 (1979)(internal quotation marks omitted).
Not all "rules" must be issued through the notice-and-comment process. Section 4(b)(A) of the APA provides that, unless another statute states otherwise, the notice-and-comment requirement "does not apply" to "interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice." 5 U.S.C. § 553(b)(A). The term "interpretative rule," or "interpretive rule,"is not further defined by the APA, and its precise meaning is the source of much scholarly and judicial debate. See generally Pierce, Distinguishing Legislative Rules From Interpretative Rules, 52 Admin. L.Rev. 547 (2000); Manning, Nonlegislative Rules, 72 Geo. Wash. L.Rev. 893 (2004). We need not, and do not, wade into that debate here. For our purposes, it suffices to say that the critical feature of interpretive rules is that they are "issued by an agency to advise the public of the agency's construction of the statutes and rules which it administers." Shalala v. Guernsey Memorial Hospital,514 U.S. 87, 99, 115 S.Ct. 1232, 131 L.Ed.2d 106 (1995)(internal quotation marks omitted). The absence of a notice-and-comment obligation makes the process of issuing interpretive rules comparatively easier for agencies than issuing legislative rules. But that convenience comes at a price: Interpretive rules "do not have the force and effect of law and are not accorded that weight in the adjudicatory process." Ibid.
B
These cases began as a dispute over efforts by the Department of Labor to determine whether mortgage-loan officers are covered by the Fair Labor Standards Act of 1938 (FLSA), 52 Stat. 1060, as amended, 29 U.S.C. § 201 et seq.The FLSA "establishe[s] a minimum wage and overtime compensation for each hour worked in excess of 40 hours in each workweek" for many employees. Integrity Staffing Solutions, Inc. v. Busk,574 U.S. ----, ----, 135 S.Ct. 513, 516, 190 L.Ed.2d 410 (2014). Certain classes of employees, however, are exempt from these provisions. Among these exempt individuals are those "employed in a bona fide executive, administrative, or professional capacity ... or in the capacity of outside salesman ...." § 213(a)(1). The exemption for such employees is known as the "administrative" exemption.
The FLSA grants the Secretary of Labor authority to "defin[e]" and "delimi[t]" the categories of exempt administrative employees. Ibid. The Secretary's current regulations regarding the administrative exemption were promulgated in 2004 through a notice-and-comment rulemaking. As relevant here, the 2004 regulations differed from the previous regulations in that they contained a new section providing several examples of exempt administrative employees. See 29 C.F.R. § 541.203. One of the examples is "[e]mployees in the financial services industry," who, depending on the nature of their day-to-day work, "generally meet the duties requirements for the administrative exception." § 541.203(b). The financial services example ends with a caveat, noting that "an employee whose primary duty is selling financial products does not qualify for the administrative exemption." Ibid.
In 1999 and again in 2001, the Department's Wage and Hour Division issued letters opining that mortgage-loan officers do not qualify for the administrative exemption. See Opinion Letter, Loan Officers/Exempt Status, 6A LRR, Wages and Hours Manual 99:8351 (Feb. 16, 2001); Opinion Letter, Mortgage Loan Officers/Exempt Status, id.,at 99:8249. (May 17, 1999). In other words, the Department concluded that the FLSA's minimum wage and maximum hour requirements applied to mortgage-loan officers. When the Department promulgated its current FLSA regulations in 2004, respondent Mortgage Bankers Association (MBA), a national trade association representing real estate finance companies, requested a new opinion interpreting the revised regulations. In 2006, the Department issued an opinion letter finding that mortgage-loan officers fell within the administrative exemption under the 2004 regulations. See App. to Pet. for Cert. in No. 13-1041, pp. 70a-84a. Four years later, however, the Wage and Hour Division again altered its interpretation of the FLSA's administrative exemption as it applied to mortgage-loan officers. Id.,at 49a-69a. Reviewing the provisions of the 2004 regulations and judicial decisions addressing the administrative exemption, the Department's 2010 Administrator's Interpretation concluded that mortgage-loan officers "have a primary duty of making sales for their employers, and, therefore, do not qualify" for the administrative exemption. Id.,at 49a, 69a. The Department accordingly withdrew its 2006 opinion letter, which it now viewed as relying on "misleading assumption[s] and selective and narrow analysis" of the exemption example in § 541.203(b). Id.,at 68a. Like the 1999, 2001, and 2006 opinion letters, the 2010 Administrator's Interpretation was issued without notice or an opportunity for comment.
C
MBA filed a complaint in Federal District Court challenging the Administrator's Interpretation. MBA contended that the document was inconsistent with the 2004 regulation it purported to interpret, and thus arbitrary and capricious in violation of § 10 of the APA, 5 U.S.C. § 706. More pertinent to this case, MBA also argued that the Administrator's Interpretation was procedurally invalid in light of the D.C. Circuit's decision in Paralyzed Veterans,117 F.3d 579. Under the Paralyzed Veteransdoctrine, if "an agency has given its regulation a definitive interpretation, and later significantly revises that interpretation, the agency has in effect amended its rule, something it may not accomplish" under the APA "without notice and comment." Alaska Professional Hunters Assn., Inc. v. FAA,177 F.3d 1030, 1034 (C.A.D.C.1999). Three former mortgage-loan officers-Beverly Buck, Ryan Henry, and Jerome Nickols-subsequently intervened in the case to defend the Administrator's Interpretation.
The District Court granted summary judgment to the Department. Mortgage Bankers Assn. v. Solis,864 F.Supp.2d 193 (D.D.C.2012). Though it accepted the parties' characterization of the Administrator's Interpretation as an interpretive rule, id.,at 203, n. 7, the District Court determined that the Paralyzed Veteransdoctrine was inapplicable because MBA had failed to establish its reliance on the contrary interpretation expressed in the Department's 2006 opinion letter. The Administrator's Interpretation, the District Court further determined, was fully supported by the text of the 2004 FLSA regulations. The court accordingly held that the 2010 interpretation was not arbitrary or capricious.
The D.C. Circuit reversed. Mortgage Bankers Assn. v. Harris,720 F.3d 966 (2013). Bound to the rule of Paralyzed Veteransby precedent, the Court of Appeals rejected the Government's call to abandon the doctrine. 720 F.3d, at 967, n. 1. In the court's view, "[t]he only question" properly before it was whether the District Court had erred in requiring MBA to prove that it relied on the Department's prior interpretation. Id.,at 967. Explaining that reliance was not a required element of the Paralyzed Veteransdoctrine, and noting the Department's concession that a prior, conflicting interpretation of the 2004 regulations existed, the D.C. Circuit concluded that the 2010 Administrator's Interpretation had to be vacated.
We granted certiorari, 573 U.S. ----, 134 S.Ct. 2820, 189 L.Ed.2d 784 (2014), and now reverse.
II
The Paralyzed Veteransdoctrine is contrary to the clear text of the APA's rulemaking provisions, and it improperly imposes on agencies an obligation beyond the "maximum procedural requirements" specified in the APA, Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc.,435 U.S. 519, 524, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978).
A
The text of the APA answers the question presented. Section 4 of the APA provides that "notice of proposed rule making shall be published in the Federal Register." 5 U.S.C. § 553(b). When such notice is required by the APA, "the agency shall give interested persons an opportunity to participate in the rule making." § 553(c). But § 4 further states that unless "notice or hearing is required by statute," the Act's notice-and-comment requirement "does not apply ... to interpretative rules." § 553(b)(A). This exemption of interpretive rules from the notice-and-comment process is categorical, and it is fatal to the rule announced in Paralyzed Veterans.
Rather than examining the exemption for interpretive rules contained in § 4(b)(A) of the APA, the D.C. Circuit in Paralyzed Veteransfocused its attention on § 1 of the Act. That section defines "rule making" to include not only the initial issuance of new rules, but also "repeal[s]" or "amend[ments]" of existing rules. See § 551(5). Because notice-and-comment requirements may apply even to these later agency actions, the court reasoned, "allow[ing] an agency to make a fundamental change in its interpretation of a substantive regulation without notice and comment" would undermine the APA's procedural framework. 117 F.3d, at 586.
This reading of the APA conflates the differing purposes of §§ 1 and 4 of the Act. Section 1 defines what a rulemaking is. It does not, however, say what procedures an agency must use when it engages in rulemaking. That is the purpose of § 4. And § 4 specifically exempts interpretive rules from the notice-and-comment requirements that apply to legislative rules. So, the D.C. Circuit correctly read § 1 of the APA to mandate that agencies use the same procedures when they amend or repeal a rule as they used to issue the rule in the first instance. See F.C.C. v. Fox Television Stations, Inc.,556 U.S. 502, 515, 129 S.Ct. 1800, 173 L.Ed.2d 738 (2009)(the APA "make[s] no distinction ... between initial agency action and subsequent agency action undoing or revising that action"). Where the court went wrong was in failing to apply that accurate understanding of § 1 to the exemption for interpretive rules contained in § 4: Because an agency is not required to use notice-and-comment procedures to issue an initial interpretive rule, it is also not required to use those procedures when it amends or repeals that interpretive rule.
B
The straightforward reading of the APA we now adopt harmonizes with longstanding principles of our administrative law jurisprudence. Time and again, we have reiterated that the APA "sets forth the full extent of judicial authority to review executive agency action for procedural correctness." Fox Television Stations, Inc.,556 U.S., at 513, 129 S.Ct. 1800. Beyond the APA's minimum requirements, courts lack authority "to impose upon [an] agency its own notion of which procedures are 'best' or most likely to further some vague, undefined public good." Vermont Yankee,435 U.S., at 549, 98 S.Ct. 1197. To do otherwise would violate "the very basic tenet of administrative law that agencies should be free to fashion their own rules of procedure." Id.,at 544, 98 S.Ct. 1197.
These foundational principles apply with equal force to the APA's procedures for rulemaking. We explained in Vermont Yankeethat § 4 of the Act "established the maximum procedural requirements which Congress was willing to have the courts impose upon agencies in conducting rulemaking procedures."Id.,at 524, 98 S.Ct. 1197. "Agencies are free to grant additional procedural rights in the exercise of their discretion, but reviewing courts are generally not free to impose them if the agencies have not chosen to grant them." Ibid.
The Paralyzed Veteransdoctrine creates just such a judge-made procedural right: the right to notice and an opportunity to comment when an agency changes its interpretation of one of the regulations it enforces. That requirement may be wise policy. Or it may not. Regardless, imposing such an obligation is the responsibility of Congress or the administrative agencies, not the courts. We trust that Congress weighed the costs and benefits of placing more rigorous procedural restrictions on the issuance of interpretive rules. See id.,at 523, 98 S.Ct. 1197(when Congress enacted the APA, it "settled long-continued and hard-fought contentions, and enact[ed] a formula upon which opposing social and political forces have come to rest" (internal quotation marks omitted)). In the end, Congress decided to adopt standards that permit agencies to promulgate freely such rules-whether or not they are consistent with earlier interpretations. That the D.C. Circuit would have struck the balance differently does not permit that court or this one to overturn Congress' contrary judgment. Cf. Law v. Siegel,571 U.S. ----, ----, 134 S.Ct. 1188, 1197-1198, 188 L.Ed.2d 146 (2014).
III
MBA offers several reasons why the Paralyzed Veteransdoctrine should be upheld. They are not persuasive.
A
MBA begins its defense of the Paralyzed Veteransdoctrine by attempting to bolster the D.C. Circuit's reading of the APA. "Paralyzed Veterans," MBA contends, "simply acknowledges the reality that where an agency significantly alters a prior, definitive interpretation of a regulation, it has effectively amended the regulation itself," something that under the APA requires use of notice-and-comment procedures. Brief for Respondent 20-21.
The act of "amending," however, in both ordinary parlance and legal usage, has its own meaning separate and apart from the act of "interpreting." Compare Black's Law Dictionary 98 (10th ed. 2014) (defining "amend" as "[t]o change the wording of" or "formally alter ... by striking out, inserting, or substituting words"), with id.,at 943 (defining "interpret" as "[t]o ascertain the meaning and significance of thoughts expressed in words"). One would not normally say that a court "amends" a statute when it interprets its text. So too can an agency "interpret" a regulation without "effectively amend[ing]" the underlying source of law. MBA does not explain how,precisely, an interpretive rule changes the regulation it interprets, and its assertion is impossible to reconcile with the longstanding recognition that interpretive rules do not have the force and effect of law. See Chrysler Corp.,441 U.S., at 302, n. 31, 99 S.Ct. 1705(citing Attorney General's Manual on the Administrative Procedure Act 30, n. 3 (1947)); Skidmore v. Swift & Co.,323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944).
MBA's "interpretation-as-amendment" theory is particularly odd in light of the limitations of the Paralyzed Veteransdoctrine. Recall that the rule of Paralyzed Veteransapplies only when an agency has previously adopted an interpretation of its regulation. Yet in that initial interpretation as much as all that come after, the agency is giving a definite meaning to an ambiguous text-the very act MBA insists requires notice and comment. MBA is unable to say why its arguments regarding revised interpretations should not also extend to the agency's first interpretation.
Next, MBA argues that the Paralyzed Veteransdoctrine is more consistent with this Court's "functional" approach to interpreting the APA. Relying on Christensen v. Harris County,529 U.S. 576, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000), and Shalala v. Guernsey Memorial Hospital,514 U.S. 87, 115 S.Ct. 1232, 131 L.Ed.2d 106, MBA contends that we have already recognized that an agency may not "avoid notice-and-comment procedures by cloaking its actions in the mantle of mere 'interpretation.' " Brief for Respondent 23-24.
Neither of the cases MBA cites supports its argument. Our decision in Christensendid not address a change in agency interpretation. Instead, we there refused to give deference to an agency's interpretation of an unambiguous regulation, observing that to defer in such a case would allow the agency "to create de factoa new regulation." 529 U.S., at 588, 120 S.Ct. 1655. Put differently, Christensenheld that the agency interpretation at issue was substantively invalid because it conflicted with the text of the regulation the agency purported to interpret. That holding is irrelevant to this suit and to the Paralyzed Veteransrule, which assesses whether an agency interpretation is procedurally invalid.
As for Guernsey,that case is fully consistent with-indeed, confirms-what the text of the APA makes plain: "Interpretive rules do not require notice and comment."
514 U.S., at 99, 115 S.Ct. 1232. Sidestepping this inconvenient language, MBA instead quotes a portion of the Court's opinion stating that "APA rulemaking would still be required if [an agency] adopted a new position inconsistent with ... existing regulations." Id.,at 100, 115 S.Ct. 1232. But the statement on which MBA relies is dictum. Worse, it is dictum taken out of context. The "regulations" to which the Court referred were two provisions of the Medicare reimbursement scheme. And it is apparent from the Court's description of these regulations in Part II of the opinion that they were legislative rules, issued through the notice-and-comment process. See id.,at 91-92, 115 S.Ct. 1232(noting that the disputed regulations were codified in the Code of Federal Regulations). Read properly, then, the cited passage from Guernseymerely means that "an agency may only change its interpretation if the revised interpretation is consistent with the underlying regulations." Brief for Petitioners in No. 13-1052, p. 44.
B
In the main, MBA attempts to justify the Paralyzed Veteransdoctrine on practical and policy grounds. MBA contends that the doctrine reinforces the APA's goal of "procedural fairness" by preventing agencies from unilaterally and unexpectedly altering their interpretation of important regulations. Brief for Respondent 16.
There may be times when an agency's decision to issue an interpretive rule, rather than a legislative rule, is driven primarily by a desire to skirt notice-and-comment provisions. But regulated entities are not without recourse in such situations. Quite the opposite. The APA contains a variety of constraints on agency decisionmaking-the arbitrary and capricious standard being among the most notable. As we held in Fox Television Stations,and underscore again today, the APA requires an agency to provide more substantial justification when "its new policy rests upon factual findings that contradict those which underlay its prior policy; or when its prior policy has engendered serious reliance interests that must be taken into account. It would be arbitrary and capricious to ignore such matters." 556 U.S., at 515, 129 S.Ct. 1800(citation omitted); see also id.,at 535, 129 S.Ct. 1800(KENNEDY, J., concurring in part and concurring in judgment).
In addition, Congress is aware that agencies sometimes alter their views in ways that upset settled reliance interests. For that reason, Congress sometimes includes in the statutes it drafts safe-harbor provisions that shelter regulated entities from liability when they act in conformance with previous agency interpretations. The FLSA includes one such provision: As amended by the Portal-to-Portal Act of 1947, 29 U.S.C. § 251 et seq.,the FLSA provides that "no employer shall be subject to any liability" for failing "to pay minimum wages or overtime compensation" if it demonstrates that the "act or omission complained of was in good faith in conformity with and in reliance on any written administrative regulation, order, ruling, approval, or interpretation" of the Administrator of the Department's Wage and Hour Division, even when the guidance is later "modified or rescinded." §§ 259(a), (b)(1). These safe harbors will often protect parties from liability when an agency adopts an interpretation that conflicts with its previous position.
C
MBA changes direction in the second half of its brief, contending that if the Court overturns the Paralyzed Veteransrule, the D.C. Circuit's judgment should nonetheless be affirmed. That is so, MBA says, because the agency interpretation at issue-the 2010 Administrator's Interpretation-should in fact be classified as a legislative rule.
We will not address this argument. From the beginning, the parties litigated this suit on the understanding that the Administrator's Interpretation was-as its name suggests-an interpretive rule. Indeed, if MBA did not think the Administrator's Interpretation was an interpretive rule, then its decision to invoke the Paralyzed Veteransdoctrine in attacking the rule is passing strange. After all, Paralyzed Veteransapplied only to interpretive rules. Consequently, neither the District Court nor the D.C. Circuit considered MBA's current claim that the Administrator's Interpretation is actually a legislative rule. Beyond that, and more important still, MBA's brief in opposition to certiorari did not dispute petitioners' assertions-in their framing of the question presented and in the substance of their petitions-that the Administrator's Interpretation is an interpretive rule. Thus, even assuming MBA did not waive the argument below, it has done so in this Court. See this Court's Rule 15.2; Carcieri v. Salazar,555 U.S. 379, 395-396, 129 S.Ct. 1058, 172 L.Ed.2d 791 (2009).
* * *
For the foregoing reasons, the judgment of the United States Court of Appeals for the District of Columbia Circuit is reversed.
It is so ordered.
Justice ALITO, concurring in part and concurring in the judgment.
I join the opinion of the Court except for Part III-B. I agree that the doctrine of Paralyzed Veterans of America v. D.C. Arena L.P.,117 F.3d 579 (C.A.D.C.1997), is incompatible with the Administrative Procedure Act. The creation of that doctrine may have been prompted by an understandable concern about the aggrandizement of the power of administrative agencies as a result of the combined effect of (1) the effective delegation to agencies by Congress of huge swaths of lawmaking authority, (2) the exploitation by agencies of the uncertain boundary between legislative and interpretive rules, and (3) this Court's cases holding that courts must ordinarily defer to an agency's interpretation of its own ambiguous regulations. See Bowles v. Seminole Rock & Sand Co.,325 U.S. 410, 65 S.Ct. 1215, 89 L.Ed. 1700 (1945). I do not dismiss these concerns, but the Paralyzed Veteransdoctrine is not a viable cure for these problems. At least one of the three factors noted above, however, concerns a matter that can be addressed by this Court. The opinions of Justice SCALIA and Justice THOMAS offer substantial reasons why the Seminole Rockdoctrine may be incorrect. See also Christopher v. SmithKline Beecham Corp.,567 U.S. ----, ---- - ----, 132 S.Ct. 2156, 2168-2169, 183 L.Ed.2d 153 (2012)(citing, inter alia,Manning, Constitutional Structure and Judicial Deference to Agency Interpretations of Agency Rules, 96 Colum. L.Rev. 612 (1996)). I await a case in which the validity of Seminole Rockmay be explored through full briefing and argument.
Justice SCALIA, concurring in the judgment.
I agree with the Court's decision, and all of its reasoning demonstrating the incompatibility of the D.C. Circuit's Paralyzed Veteransholding with the Administrative Procedure Act. Paralyzed Veterans of Am. v. D.C. Arena L.P.,117 F.3d 579 (C.A.D.C.1997). I do not agree, however, with the Court's portrayal of the result it produces as a vindication of the balance Congress struck when it "weighed the costs and benefits of placing more rigorous ... restrictions on the issuance of interpretive rules." Ante,at 1207. That depiction is accurate enough if one looks at this case in isolation. Considered alongside our law of deference to administrative determinations, however, today's decision produces a balance between power and procedure quite different from the one Congress chose when it enacted the APA.
"The [APA] was framed against a background of rapid expansion of the administrative process as a check upon administrators whose zeal might otherwise have carried them to excesses not contemplated in legislation creating their offices." United States v. Morton Salt Co.,338 U.S. 632, 644, 70 S.Ct. 357, 94 L.Ed. 401 (1950). The Act guards against excesses in rulemaking by requiring notice and comment. Before an agency makes a rule, it normally must notify the public of the proposal, invite them to comment on its shortcomings, consider and respond to their arguments, and explain its final decision in a statement of the rule's basis and purpose. 5 U.S.C. § 553(b)-(c); ante,at 1203 - 1204.
The APA exempts interpretive rules from these requirements. § 553(b)(A). But this concession to agencies was meant to be more modest in its effects than it is today. For despite exempting interpretive rules from notice and comment, the Act provides that "the reviewing courtshall ... interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action." § 706(emphasis added). The Act thus contemplates that courts, not agencies, will authoritatively resolve ambiguities in statutes and regulations. In such a regime, the exemption for interpretive rules does not add much to agency power. An agency may use interpretive rules to advisethe public by explaining its interpretation of the law. But an agency may not use interpretive rules to bindthe public by making law, because it remains the responsibility of the court to decide whether the law means what the agency says it means.
Heedless of the original design of the APA, we have developed an elaborate law of deference to agencies' interpretations of statutes and regulations. Never mentioning § 706's directive that the "reviewing court ... interpret ... statutory provisions," we have held that agenciesmay authoritatively resolve ambiguities in statutes. Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.,467 U.S. 837, 842-843, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). And never mentioning § 706's directive that the "reviewing court ... determine the meaning or applicability of the terms of an agency action," we have-relying on a case decided before the APA, Bowles v. Seminole Rock & Sand Co.,325 U.S. 410
Question: What is the ideological direction of the decision reviewed by the Supreme Court?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
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sc_adminaction_is
|
B
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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.
LYNG, SECRETARY OF AGRICULTURE, et al. v. NORTHWEST INDIAN CEMETERY PROTECTIVE ASSOCIATION et al.
No. 86-1013.
Argued November 30, 1987
Decided April 19, 1988
O’Connor, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, Stevens, and Scalia, JJ., joined. Brennan, J., filed a dissenting opinion, in which Marshall and Blackmun, JJ., joined, post, p. 458. Kennedy, J., took no part in the consideration or decision of the case.
Andretv J. Pincus argued the cause for petitioners. With him on the briefs were Solicitor General Fried, Acting Assistant Attorney General Marzulla, Deputy Solicitor General Ayer, Robert L. Klarqtiist, and Jacques B. Gelin.
Marilyn B. Miles argued the cause for respondents. With her on the brief for the Indian respondents was Stephen V. Quesenberry. John K. Van de Kamp, Attorney General, R. H. Connett, Assistant Attorney General, and Edna Walz, Deputy Attorney General filed a brief for respondent State of California.
Briefs of amici curiae urging reversal were filed for the State of Hawaii et al. by Kenneth O. Eikenberry, Attorney General of Washington, Timothy R. Malone, Nixon Handy, and Mark S. Green, Assistant Attorneys General, Warren Price III, Attorney General of Hawaii, Roger A. Tellinghuisen, Attorney General of South Dakota, and David Wilkinson, Attorney General of Utah; for the Colorado Mining Association et al. by Lawrence E. Stevens and Patrick J. Garver; for the Howonquet Community Association et al. by Ronald A. Zumbrun and Robin L. Rivett; and for the city of Williams, Arizona, by Gary Verburg.
Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union Foundation et al. by John A. Poivell, Steven R. Shapiro, Paul L. Hoffman, Mark D. Rosenbaum, Alan L. Schlosser, Edward M. Chen, Mattheiv A. Coles, and Stephen L. Pevar; for the American Jewish Congress et al. by Marc D. Stem, Lois C. Waldman, and Amy Adelson; and for the Christian Legal Society et al. by Michael J. Woodruff, Samuel Rabinove, Richard T. Foltin, and Jordan Lorence.
Steven C. Moore filed a brief for the National Congress of American Indians et al. as amici curiae.
Justice O’Connor
delivered the opinion of the Court.
This case requires us to consider whether the First Amendment’s Free Exercise Clause prohibits the Government from permitting timber harvesting in, or constructing a road through, a portion of a National Forest that has traditionally been used for religious purposes by members of three American Indian tribes in northwestern California. We conclude that it does not.
I
As part of a project to create a paved 75-mile road linking two California towns, Gasquet and Orleans, the United States Forest Service has upgraded 49 miles of previously unpaved roads on federal land. In order to complete this project (the G-0 road), the Forest Service must build a 6-mile paved segment through the Chimney Rock section of the Six Rivers National Forest. That section of the forest is situated between two other portions of the road that are already complete.
In 1977, the Forest Service issued a draft environmental impact statement that discussed proposals for upgrading an existing unpaved road that runs through the Chimney Rock area. In response to comments on the draft statement, the Forest Service commissioned a study of American Indian cultural and religious sites in the area. The Hoopa Valley Indian Reservation adjoins the Six Rivers National Forest, and the Chimney Rock area has historically been used for religious purposes by Yurok, Karok, and Tolowa Indians. The commissioned study, which was completed in 1979, found that the entire area “is significant as an integral and indispensible part of Indian religious conceptualization and practice.” App. 181. Specific sites are used for certain rituals, and “successful use of the [area] is dependent upon and facilitated by certain qualities of the physical environment, the most important of which are privacy, silence, and an undisturbed natural setting.” Ibid, (footnote omitted). The study concluded that constructing a road along any of the available routes “would cause serious and irreparable damage to the sacred areas which are an integral and necessary part of the belief systems and lifeway of Northwest California Indian peoples.” Id., at 182. Accordingly, the report recommended that the G-O road not be completed.
In 1982, the Forest Service decided not to adopt this recommendation, and it prepared a final environmental impact statement for construction of the road. The Regional Forester selected a route that avoided archeological sites and was removed as far as possible from the sites used by contemporary Indians for specific spiritual activities. Alternative routes that would have avoided the Chimney Rock area altogether were rejected because they would have required the acquisition of private land, had serious soil stability problems, and would in any event have traversed areas having ritualistic value to American Indians. See id., at 217-218. At about the same time, the Forest Service adopted a management plan allowing for the harvesting of significant amounts of timber in this area of the forest. The management plan provided for one-half mile protective zones around all the religious sites identified in the report that had been commissioned in connection with the G-0 road.
After exhausting their administrative remedies, respondents — an Indian organization, individual Indians, nature organizations and individual members of those organizations, and the State of California — challenged both the road-building and timber-harvesting decisions in the United States District Court for the Northern District of California. Respondents claimed that the Forest Service’s decisions violated the Free Exercise Clause, the Federal Water Pollution Control Act (FWPCA), 86 Stat. 896, as amended, 33 U. S. C. § 1251 et seq., the National Environmental Policy Act of 1969 (NEPA), 83 Stat. 852, 42 U. S. C. § 4321 et seq., several other federal statutes, and governmental trust responsibilities to Indians living on the Hoopa Valley Reservation.
After a trial, the District Court issued a permanent injunction prohibiting the Government from constructing the Chimney Rock section of the G-0 road or putting the timber-harvesting management plan into effect. See Northwest Indian Cemetery Protective Assn. v. Peterson, 565 F. Supp. 586 (1983). The court found that both actions would violate the Free Exercise Clause because they “would seriously damage the salient visual, aural, and environmental qualities of the high country.” Id., at 594-595. The court also found that both proposed actions would violate the FWPCA, and that the environmental impact statements for construction of the road were deficient under the NEPA. Finally, the court concluded that both projects would breach the Government’s trust responsibilities to protect water and fishing rights reserved to the Hoopa Valley Indians.
While an appeal was pending before the United States Court of Appeals for the Ninth Circuit, Congress enacted the California Wilderness Act of 1984, Pub. L. 98-425, 98 Stat. 1619. Under that statute, much of the property covered by the Forest Service’s management plan is now designated a wilderness area, which means that commercial activities such as timber harvesting are forbidden. The statute exempts a narrow strip of land, coinciding with the Forest Service’s proposed route for the remaining segment of the G-O road, from the wilderness designation. The legislative history indicates that this exemption was adopted “to enable the completion of the Gasquet-Orleans Road project if the responsible authorities so decide.” S. Rep. No. 98-582, p. 29 (1984). The existing unpaved section of road, however, lies within the wilderness area and is therefore now closed to general traffic.
A panel of the Ninth Circuit affirmed in part. Northwest Indian Cemetery Protective Assn. v. Peterson, 795 F. 2d 688 (1986). The panel unanimously rejected the District Court’s conclusion that the Government’s proposed actions would breach its trust responsibilities to Indians on the Hoopa Valley Reservation. The panel also vacated the injunction to the extent that it had been rendered moot by the California’ Wilderness Act, which now prevents timber harvesting in certain areas covered by the District Court’s order. The District Court’s decision, to the extent that it rested on statutory grounds, was otherwise unanimously affirmed.
By a divided decision, the District Court’s constitutional ruling was also affirmed. Relying primarily on the Forest Service’s own commissioned study, the majority found that construction of the Chimney Rock section of the G-0 road would have significant, though largely indirect, adverse effects on Indian religious practices. The majority concluded that the Government had failed to demonstrate a compelling interest in the completion of the road, and that it could have abandoned the road without thereby creating “a religious preserve for a single group in violation of the establishment clause.” Id., at 694. The majority apparently applied the same analysis to logging operations that might be carried out in portions of the Chimney Rock area not covered by the California Wilderness Act. See id., at 692-693 (“Because most of the high country has now been designated by Congress as a wilderness area, the issue of logging becomes less significant, although it does not disappear”).
The dissenting judge argued that certain of the adverse effects on the Indian respondents’ religious practices could be eliminated by less drastic measures than a ban on building the road, and that other actual or suggested adverse effects did not pose a serious threat to the Indians’ religious practices. He also concluded that the injunction against timber harvesting needed to be reconsidered in light of the California Wilderness Act: “It is not clear whether the district court would have issued an injunction based upon the development of the remaining small parcels. Accordingly, I would remand to allow the district court to reevaluate its injunction in light of the Act.” Id., at 704.
II
We begin by noting that the courts below did not articulate the bases of their decisions with perfect clarity. A fundamental and longstanding principle of judicial restraint requires that courts avoid reaching constitutional questions in advance of the necessity of deciding them. See Three Affiliated Tribes of Ft. Berthold Reservation v. Wold Engineering, P. C., 467 U. S. 138, 157-158 (1984); see also, e. g., Jean v. Nelson, 472 U. S. 846, 854 (1985); Gulf Oil Co. v. Bernard, 452 U. S. 89, 99 (1981); Ashwander v. TVA, 297 U. S. 288, 346-348 (1936) (Brandeis, J., concurring). This principle required the courts below to determine, before addressing the constitutional issue, whether a decision on that question could have entitled respondents to relief beyond that to which they were entitled on their statutory claims. If no additional relief would have been warranted, a constitutional decision would have been unnecessary and therefore inappropriate.
Neither the District Court nor the Court of Appeals explained or expressly articulated the necessity for their constitutional holdings. Were we persuaded that those holdings were unnecessary, we could simply vacate the relevant portions of the judgment below without discussing the merits of the constitutional issue. The structure and wording of the District Court’s injunctive order, however, suggest that the statutory holdings would not have supported all the relief granted. The order is divided into four sections. Two of those sections deal with a 31,100-acre tract referred to as the Blue Creek Roadless Area. The injunction prohibits the Forest Service from engaging in timber harvesting or road building anywhere on the tract “unless and until” compliance with the NEPA and the FWPCA have been demonstrated. 565 F. Supp., at 606-607. The sections of the injunction dealing with the smaller Chimney Rock area (i. e., the area affected by the First Amendment challenge) are worded differently. The Forest Service is permanently enjoined, without any qualifying language, from constructing the proposed portion of the G-0 road “and/or any alternative route” through that area; similarly, the injunction forbids timber harvesting or the construction of logging roads in the Chimney Rock area pursuant to the Forest Service’s proposed management plan “or any other land management plan.” Id., at 606 (emphasis added). These differences in wording suggest, without absolutely implying, that an injunction covering the Chimney Rock area would in some way have been conditional, or narrower in scope, if the District Court had not decided the First Amendment issue as it did. Similarly, the silence of the Court of Appeals as to the necessity of reaching the First Amendment issue may have reflected its understanding that the District Court’s injunction necessarily rested in part on constitutional grounds.
Because it appears reasonably likely that the First Amendment issue was necessary to the decisions below, we believe that it would be inadvisable to vacate and remand without addressing that issue on the merits. This conclusion is strengthened by considerations of judicial economy. The Government, which petitioned for certiorari on the constitutional issue alone, has informed us that it believes it can cure the statutory defects identified below, intends to do so, and will not challenge the adverse statutory rulings. Tr. of Oral Arg. 9-10. In this circumstance, it is difficult to see what principle would be vindicated by sending this case on what would almost certainly be a brief round trip to the courts below.
Ill
A
The Free Exercise Clause of the First Amendment provides that “Congress shall make no law . . . prohibiting the free exercise [of religion].” It is undisputed that the Indian respondents’ beliefs are sincere and that the Government’s proposed actions will have severe adverse effects on the practice of their religion. Those respondents contend that the burden on their religious practices is heavy enough to violate the Free Exercise Clause unless the Government can demonstrate a compelling need to complete the G-0 road or to engage in timber harvesting in the Chimney Rock area. We disagree.
In Bowen v. Roy, 476 U. S. 693 (1986), we considered a challenge to a federal statute that required the States to use Social Security numbers in administering certain welfare programs. Two applicants for benefits under these programs contended that their religious beliefs prevented them from acceding to the use of a Social Security number for their 2-year-old daughter because the use of a numerical identifier would “‘rob the spirit’ of [their] daughter and prevent her from attaining greater spiritual power.” Id., at 696. Similarly, in this case, it is said that disruption of the natural environment caused by the G-O road will diminish the sacredness of the area in question and create distractions that will interfere with “training and ongoing religious experience of individuals using [sites within] the area for personal medicine and growth . . . and as integrated parts of a system of religious belief and practice which correlates ascending degrees of personal power with a geographic hierarchy of power.” App. 181. Cf. id., at 178 (“Scarred hills and mountains, and disturbed rocks destroy the purity of the sacred areas, and [Indian] consultants repeatedly stressed the need of a training doctor to be undistracted by such disturbance”). The Court rejected this kind of challenge in Roy:
“The Free Exercise Clause simply cannot be understood to require the Government to conduct its own internal affairs in ways that comport with the religious beliefs of particular citizens. Just as the Government may not insist that [the Roys] engage in any set form of religious observance, so [they] may not demand that the Government join in their chosen religious practices by refraining from using a number to identify their daughter. . . .
“. . . The Free Exercise Clause affords an individual protection from certain forms of governmental compulsion; it does not afford an individual a right to dictate the conduct of the Government’s internal procedures.” 476 U. S., at 699-700.
The building of a road or the harvesting of timber on publicly owned land cannot meaningfully be distinguished from the use of a Social Security number in Roy. In' both cases, the challenged Government action would interfere significantly with private persons’ ability to pursue spiritual fulfillment according to their own religious beliefs. In neither case, however, would the affected individuals be coerced by the Government’s action into violating their religious beliefs; nor would either governmental action penalize religious activity by denying any person an equal share of the rights, benefits, and privileges enjoyed by other citizens.
We are asked to distinguish this case from Roy on the ground that the infringement on religious liberty here is “significantly greater,” or on the ground that the Government practice in Roy was “purely mechanical” whereas this case involves “a case-by-case substantive determination as to how a particular unit of land will be managed.” Brief for Indian Respondents 33-34. Similarly, we are told that this case can be distinguished from Roy because “the government action is not at some physically removed location where it places no restriction on what a practitioner may do.” Brief for Respondent State of California 18. The State suggests that the Social Security number in Roy “could be characterized as interfering with Roy’s religious tenets from a subjective point of view, where the government’s conduct of ‘its own internal affairs’ was known to him only secondhand and did not interfere with his ability to practice his religion.” Id., at 19 (footnote omitted; internal citation omitted). In this case, however, it is said that the proposed road will “physically destro[y] the environmental conditions and the privacy without which the [religious] practices cannot be conducted.” Ibid.
These efforts to distinguish Roy are unavailing. This Court cannot determine the truth of the underlying beliefs that led to the religious objections here or in Roy, see Hobbie v. Unemployment Appeals Comm’n of Fla., 480 U. S. 136, 144, n. 9 (1987), and accordingly cannot weigh the adverse effects on the appellees in Roy and compare them with the adverse effects on the Indian respondents. Without the ability to make such comparisons, we cannot say that the one form of incidental interference with an individual’s spiritual activities should be subjected to a different constitutional analysis than the other.
Respondents insist, nonetheless, that the courts below properly relied on a factual inquiry into the degree to which the Indians’ spiritual practices would become ineffectual if the G-0 road were built. They rely on several cases in which this Court has sustained free exercise challenges to government programs that interfered with individuals’ ability to practice their religion. See Wisconsin v. Yoder, 406 U. S. 205 (1972) (compulsory school-attendance law); Sherbert v. Verner, 374 U. S. 398 (1963) (denial of unemployment benefits to applicant who refused to accept work requiring her to violate the Sabbath); Thomas v. Review Board, Indiana Employment Security Div., 450 U. S. 707 (1981) (denial of unemployment benefits to applicant whose religion forbade him to fabricate weapons); Robbie, supra (denial of unemployment benefits to religious convert who resigned position that required her to work on the Sabbath).
Even apart from the inconsistency between Roy and respondents’ reading of these cases, their interpretation will not withstand analysis. It is true that this Court has repeatedly held that indirect coercion or penalties on the free exercise of religion, not just outright prohibitions, are subject to scrutiny under the First Amendment. Thus, for example, ineligibility for unemployment benefits, based solely on a refusal to violate the Sabbath, has been analogized to a fine imposed on Sabbath worship. Sherbert, supra, at 404. This does not and cannot imply that incidental effects of government programs, which may make it more difficult to practice certain religions but which have no tendency to coerce individuals into acting contrary to their religious beliefs, require government to bring forward a compelling justification for its otherwise lawful actions. The crucial word in the constitutional text is “prohibit”: “For the Free Exercise Clause is written in terms of what the government cannot do to the individual, not in terms of what the individual can exact from the government.” Sherbert, supra, at 412 (Douglas, J., concurring).
Whatever may be the exact line between unconstitutional prohibitions on the free exercise of religion and the legitimate conduct by government of its own affairs, the location of the line cannot depend on measuring the effects of a governmental action on a religious objector’s spiritual development. The Government does not dispute, and we have no reason to doubt, that the logging and road-building projects at issue in this case could have devastating effects on traditional Indian religious practices. Those practices are intimately and inextricably bound up with the unique features of the Chimney Rock area, which is known to the Indians as the “high country. ” Individual practitioners use this area for personal spiritual development; some of their activities are believed to be critically important in advancing the welfare of the Tribe, and indeed, of mankind itself. The Indians use this area, as they have used it for a very long time, to conduct a wide variety of specific rituals that aim to accomplish their religious goals. According to their beliefs, the rituals would not be efficacious if conducted at other sites than the ones traditionally used, and too much disturbance of the area’s natural state would clearly render any meaningful continuation of traditional practices impossible. To be sure, the Indians themselves were far from unanimous in opposing the G-0 road, see App. 180, and it seems less than certain that construction of the road will be so disruptive that it will doom their religion. Nevertheless, we can assume that the threat to the efficacy of at least some religious practices is extremely grave.
Even if we assume that we should accept the Ninth Circuit’s prediction, according to which the G-0 road will “virtually destroy the . .. Indians’ ability to practice their religion,” 795 F. 2d, at 693 (opinion below), the Constitution simply does not provide a principle that could justify upholding respondents’ legal claims. However much we might wish that it were otherwise, government simply could not operate if it were required to satisfy every citizen’s religious needs and desires. A broad range of government activities — from social welfare programs to foreign aid to conservation projects — will always be considered essential to the spiritual well-being of some citizens, often on the basis of sincerely held religious beliefs. Others will find the very same activities deeply offensive, and perhaps incompatible with their own search for spiritual fulfillment and with the tenets of their religion. The First Amendment must apply to all citizens alike, and it can give to none of them a veto over public programs that do not prohibit the free exercise of religion. The Constitution does not, and courts cannot, offer to reconcile the various competing demands on government, many of them rooted in sincere religious belief, that inevitably arise, in so diverse a society as ours. That task, to the extent that it is feasible, is for the legislatures and other institutions. Cf. The Federalist No. 10 (suggesting that the effects of religious factionalism are best restrained through competition among a multiplicity of religious sects).
One need not look far beyond the present case to see why the analysis in Roy, but not respondents’ proposed extension of Sherbert and its progeny, offers a sound reading of the Constitution. Respondents attempt to stress the limits of the religious servitude that they are now seeking to impose on the Chimney Rock area of the Six Rivers National Forest. While defending an injunction against logging operations and the construction of a road, they apparently do not at present object to the area’s being used by recreational visitors, other Indians, or forest rangers. Nothing in the principle for which they contend, however, would distinguish this case from another lawsuit in which they (or similarly situated religious objectors) might seek to exclude all human activity but their own from sacred areas of the public lands. The Indian respondents insist that “[pjrivacy during the power quests is required for the practitioners to maintain the purity needed for a successful journey.” Brief for Indian Respondents 8 (emphasis added; citation to record omitted). Similarly: “The practices conducted in the high country entail intense meditation and require the practitioner to achieve a profound awareness of the natural environment. Prayer seats are oriented so there is an unobstructed view, and the practitioner must be surrounded by undisturbed naturalness.” Id., at 8, n. 4 (emphasis added; citations to record omitted). No disrespect for these practices is implied when one notes that such beliefs could easily require defacto beneficial ownership of some rather spacious tracts of public property. Even without anticipating future cases, the diminution of the Government’s property rights, and the concomitant subsidy of the Indian religion, would in this case be far from trivial: the District Court’s order permanently forbade commercial timber harvesting, or the construction of a two-lane road, anywhere within an area covering a full 27 sections (i. e. more than 17,000 acres) of public land.
The Constitution does not permit government to discriminate against religions that treat particular physical sites as sacred, and a law prohibiting the Indian respondents from visiting the Chimney Rock area would raise a different set of constitutional questions. Whatever rights the Indians may have to the use of the area, however, those rights do not divest the Government of its right to use what is, after all, its land. Cf. Bowen v. Roy, 476 U. S., at 724-727 (O’Connor, J., concurring in part and dissenting in part) (distinguishing between the Government’s use of information in its possession and the Government’s requiring an individual to provide such information).
B
Nothing in our opinion should be read to encourage governmental insensitivity to the religious needs of any citizen. The Government’s rights to the use of its own land, for example, need not and should not discourage it from accommodating religious practices like those engaged in by the Indian respondents. Cf. Sherbert, 374 U. S., at 422-423 (Harlan, J., dissenting). It is worth emphasizing, therefore, that the Government has taken numerous steps in this very case to minimize the impact that construction of the G-0 road will have on the Indians’ religious activities. First, the Forest Service commissioned a comprehensive study of the effects that the project would have on the cultural and religious value of the Chimney Rock area. The resulting 423-page report was so sympathetic to the Indians’ interests that it has constituted the principal piece of evidence relied on by respondents throughout this litigation.
Although the Forest Service did not in the end adopt the report’s recommendation that the project be abandoned, many other ameliorative measures were planned. No sites where specific rituals take place were to be disturbed. In fact, a major factor in choosing among alternative routes for the road was the relation of the various routes to religious sites: the route selected by the Regional Forester is, he noted, “the farthest removed from contemporary spiritual sites; thus, the adverse audible intrusions associated with the road would be less than all other alternatives.” App. 102. Nor were the Forest Service’s concerns limited to “audible intrusions.” As the dissenting judge below observed, 10 specific steps were planned to reduce the visual impact of the road on the surrounding country. See 795 F. 2d, at 703 (Beezer, J., dissenting in part).
Except for abandoning its project entirely, and thereby leaving the two existing segments of road to dead-end in the middle of a National Forest, it is difficult to see how the Government could have been more solicitous. Such solicitude accords with “the policy of the United States to protect and preserve for American Indians their inherent right of freedom to believe, express, and exercise the traditional religions of the American Indian . . . including but not limited to access to sites, use and possession of sacred objects, and the freedom to worship through ceremonials and traditional rites.” American Indian Religious Freedom Act (AIRFA), Pub. L. 95-341, 92 Stat. 469, 42 U. S. C. § 1996.
Respondents, however, suggest that AIRFA goes further and in effect enacts their interpretation of the First Amendment into statutory law. Although this contention was rejected by the District Court, they seek to defend the judgment below by arguing that AIRFA authorizes the injunction against completion of the G-0 road. This argument is without merit. After reciting several legislative findings, AIRFA “resolves” upon the policy quoted above. A second section of the statute, 92 Stat. 470, required an evaluation of federal policies and procedures, in consultation with native religious leaders, of changes necessary to protect and preserve the rights and practices in question. The required report dealing with this evaluation was completed and released in 1979. Reply Brief for Petitioners 2, n. 3. Nowhere in the law is there so much as a hint of any intent to create a cause of action or any judicially enforceable individual rights.
What is obvious from the face of the statute is confirmed by numerous indications in the legislative history. The sponsor of the bill that became AIRFA, Representative Udall, called it “a sense of Congress joint resolution,” aimed at ensuring that “the basic right of the Indian people to exercise their traditional religious practices is not infringed without a clear decision on the part of the Congress or the administrators that such religious practices must yield to some higher consideration.” 124 Cong. Rec. 21444 (1978). Representative Udall emphasized that the bill would not “confer special religious rights on Indians,” would “not change any existing State or Federal law,” and in fact “has no teeth in it.” Id., at 21444-21445.
c
The dissent proposes an approach to the First Amendment that is fundamentally inconsistent with the principles on which our decision rests. Notwithstanding the sympathy that we all must feel for the plight of the Indian respondents, it is plain that the approach taken by the dissent cannot withstand analysis. On the contrary, the path towards which it points us is incompatible with the text of the Constitution, with the precedents of this Court, and with a responsible sense of our own institutional role.
The dissent begins by asserting that the “constitutional guarantee we interpret today ... is directed against any form of government action that frustrates or inhibits religious practice.” Post, at 459 (emphasis added). The Constitution, however, says no such thing. Rather, it states: “Congress shall make no law . . . prohibiting the free exercise [of religion].” U. S. Const., Arndt. 1 (emphasis added).
As we explained above, Bowen v. Roy rejected a First Amendment challenge to Government activities that the religious objectors sincerely believed would “‘“rob the spirit” of [their] daughter and prevent her from attaining greater spiritual power.’” See supra, at 448 (quoting Roy, 476 U. S., at 696). The dissent now offers to distinguish that case by saying that the Government was acting there “in a purely internal manner,” whereas land-use decisions “are likely to have substantial external effects.” Post, at 470. Whatever the source or meaning of the dissent’s distinction, it has no basis in Roy. Robbing the spirit of a child, and preventing her from attaining greater spiritual power, is both a “substantial external effect” and one that is remarkably similar to the injury claimed by respondents in the case before us today. The dissent’s reading of Roy would effectively overrule that decision, without providing any compelling justification for doing so.
The dissent also misreads Wisconsin v. Yoder, 406 U. S. 205 (1972). The statute at issue in that case prohibited the Amish parents, on pain of criminal prosecution, from providing their children with the kind of education required by the Amish religion. Id., at 207-209, 223. The statute directly compelled the Amish to send their children to public high schools “contrary to the Amish religion and way of life.” Id., at 209. The Court acknowledged that the statute might be constitutional, despite its coercive nature, if the State could show with sufficient “particularity how its admittedly strong interest in compulsory education would be adversely affected by granting an exemption to the Amish.” Id., at 236 (citation omitted). The dissent’s out-of-context quotations notwithstanding, there is nothing whatsoever in the Yoder opinion to support the proposition that the “impact” on the Amish religion would have been constitutionally problematic if the statute at issue had not been coercive in nature. Cf. post, at 466.
Perceiving a “stress point in the longstanding conflict between two disparate cultures,” the dissent attacks us for declining to “balanc[e] these competing and potentially irreconcilable interests, choosing instead to, turn this difficult task over to the Federal Legislature.” Post, at 473. Seeing the Court as the arbiter, the dissent proposes a legal test under which it would decide which public lands are “central” or “indispensable” to which religions, and by implication which are “dispensable” or “peripheral,” and would then decide which government programs are “compelling” enough to justify “infringement of those practices.” Post, at 475. We would accordingly be required to weigh the value of every religious belief and practice that is said to be threatened by any government program. Unless a “showing of ‘centrality,’ ” post, at 474, is nothing but an assertion of centrality, see post, at 475, the dissent thus offers us the prospect of this Court’s holding that some sincerely held religious beliefs and practices are not “central” to certain religions, despite protestations to the contrary from the religious objectors who brought the lawsuit. In other words, the dissent’s approach would require us to rule that some religious adherents misunderstand their own religious beliefs. We think such an approach cannot be squared with the Constitution or with our precedents, and that it would cast the Judiciary in a role that we were never intended to play.
IV
The decision of the court below, according to which the First Amendment precludes the Government from completing the G-0 road or from permitting timber harvesting in the Chimney Rock area, is reversed. In order that the District Court’s injunction may be reconsidered in light of this holding, and in the light of any other relevant events that may have intervened since the injunction issued, the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Justice Kennedy took no part in the consideration or decision of this case.
Question: Did administrative action occur in the context of the case?
A. No
B. Yes
Answer:
|
sc_casesource
|
158
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court whose decision the Supreme Court reviewed. If the case arose under the Supreme Court's original jurisdiction, note the source as "United States Supreme Court". If the case arose in a state court, note the source as "State Supreme Court", "State Appellate Court", or "State Trial Court". Do not code the name of the state.
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 court whose decision the Supreme Court reviewed?
001. U.S. Court of Customs and Patent Appeals
002. U.S. Court of International Trade
003. U.S. Court of Claims, Court of Federal Claims
004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces
005. U.S. Court of Military Review
006. U.S. Court of Veterans Appeals
007. U.S. Customs Court
008. U.S. Court of Appeals, Federal Circuit
009. U.S. Tax Court
010. Temporary Emergency U.S. Court of Appeals
011. U.S. Court for China
012. U.S. Consular Courts
013. U.S. Commerce Court
014. Territorial Supreme Court
015. Territorial Appellate Court
016. Territorial Trial Court
017. Emergency Court of Appeals
018. Supreme Court of the District of Columbia
019. Bankruptcy Court
020. U.S. Court of Appeals, First Circuit
021. U.S. Court of Appeals, Second Circuit
022. U.S. Court of Appeals, Third Circuit
023. U.S. Court of Appeals, Fourth Circuit
024. U.S. Court of Appeals, Fifth Circuit
025. U.S. Court of Appeals, Sixth Circuit
026. U.S. Court of Appeals, Seventh Circuit
027. U.S. Court of Appeals, Eighth Circuit
028. U.S. Court of Appeals, Ninth Circuit
029. U.S. Court of Appeals, Tenth Circuit
030. U.S. Court of Appeals, Eleventh Circuit
031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction)
032. Alabama Middle U.S. District Court
033. Alabama Northern U.S. District Court
034. Alabama Southern U.S. District Court
035. Alaska U.S. District Court
036. Arizona U.S. District Court
037. Arkansas Eastern U.S. District Court
038. Arkansas Western U.S. District Court
039. California Central U.S. District Court
040. California Eastern U.S. District Court
041. California Northern U.S. District Court
042. California Southern U.S. District Court
043. Colorado U.S. District Court
044. Connecticut U.S. District Court
045. Delaware U.S. District Court
046. District Of Columbia U.S. District Court
047. Florida Middle U.S. District Court
048. Florida Northern U.S. District Court
049. Florida Southern U.S. District Court
050. Georgia Middle U.S. District Court
051. Georgia Northern U.S. District Court
052. Georgia Southern U.S. District Court
053. Guam U.S. District Court
054. Hawaii U.S. District Court
055. Idaho U.S. District Court
056. Illinois Central U.S. District Court
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058. Illinois Southern U.S. District Court
059. Indiana Northern U.S. District Court
060. Indiana Southern U.S. District Court
061. Iowa Northern U.S. District Court
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063. Kansas U.S. District Court
064. Kentucky Eastern U.S. District Court
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071. Massachusetts U.S. District Court
072. Michigan Eastern U.S. District Court
073. Michigan Western U.S. District Court
074. Minnesota U.S. District Court
075. Mississippi Northern U.S. District Court
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079. Montana U.S. District Court
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081. Nevada U.S. District Court
082. New Hampshire U.S. District Court
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088. New York Western U.S. District Court
089. North Carolina Eastern U.S. District Court
090. North Carolina Middle U.S. District Court
091. North Carolina Western U.S. District Court
092. North Dakota U.S. District Court
093. Northern Mariana Islands U.S. District Court
094. Ohio Northern U.S. District Court
095. Ohio Southern U.S. District Court
096. Oklahoma Eastern U.S. District Court
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099. Oregon U.S. District Court
100. Pennsylvania Eastern U.S. District Court
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102. Pennsylvania Western U.S. District Court
103. Puerto Rico U.S. District Court
104. Rhode Island U.S. District Court
105. South Carolina U.S. District Court
106. South Dakota U.S. District Court
107. Tennessee Eastern U.S. District Court
108. Tennessee Middle U.S. District Court
109. Tennessee Western U.S. District Court
110. Texas Eastern U.S. District Court
111. Texas Northern U.S. District Court
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115. Vermont U.S. District Court
116. Virgin Islands U.S. District Court
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125. Wyoming U.S. District Court
126. Louisiana U.S. District Court
127. Washington U.S. District Court
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129. Illinois Eastern U.S. District Court
130. South Carolina Eastern U.S. District Court
131. South Carolina Western U.S. District Court
132. Alabama U.S. District Court
133. U.S. District Court for the Canal Zone
134. Georgia U.S. District Court
135. Illinois U.S. District Court
136. Indiana U.S. District Court
137. Iowa U.S. District Court
138. Michigan U.S. District Court
139. Mississippi U.S. District Court
140. Missouri U.S. District Court
141. New Jersey Eastern U.S. District Court (East Jersey U.S. District Court)
142. New Jersey Western U.S. District Court (West Jersey U.S. District Court)
143. New York U.S. District Court
144. North Carolina U.S. District Court
145. Ohio U.S. District Court
146. Pennsylvania U.S. District Court
147. Tennessee U.S. District Court
148. Texas U.S. District Court
149. Virginia U.S. District Court
150. Norfolk U.S. District Court
151. Wisconsin U.S. District Court
152. Kentucky U.S. Distrcrict Court
153. New Jersey U.S. District Court
154. California U.S. District Court
155. Florida U.S. District Court
156. Arkansas U.S. District Court
157. District of Orleans U.S. District Court
158. State Supreme Court
159. State Appellate Court
160. State Trial Court
161. Eastern Circuit (of the United States)
162. Middle Circuit (of the United States)
163. Southern Circuit (of the United States)
164. Alabama U.S. Circuit Court for (all) District(s) of Alabama
165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas
166. California U.S. Circuit for (all) District(s) of California
167. Connecticut U.S. Circuit for the District of Connecticut
168. Delaware U.S. Circuit for the District of Delaware
169. Florida U.S. Circuit for (all) District(s) of Florida
170. Georgia U.S. Circuit for (all) District(s) of Georgia
171. Illinois U.S. Circuit for (all) District(s) of Illinois
172. Indiana U.S. Circuit for (all) District(s) of Indiana
173. Iowa U.S. Circuit for (all) District(s) of Iowa
174. Kansas U.S. Circuit for the District of Kansas
175. Kentucky U.S. Circuit for (all) District(s) of Kentucky
176. Louisiana U.S. Circuit for (all) District(s) of Louisiana
177. Maine U.S. Circuit for the District of Maine
178. Maryland U.S. Circuit for the District of Maryland
179. Massachusetts U.S. Circuit for the District of Massachusetts
180. Michigan U.S. Circuit for (all) District(s) of Michigan
181. Minnesota U.S. Circuit for the District of Minnesota
182. Mississippi U.S. Circuit for (all) District(s) of Mississippi
183. Missouri U.S. Circuit for (all) District(s) of Missouri
184. Nevada U.S. Circuit for the District of Nevada
185. New Hampshire U.S. Circuit for the District of New Hampshire
186. New Jersey U.S. Circuit for (all) District(s) of New Jersey
187. New York U.S. Circuit for (all) District(s) of New York
188. North Carolina U.S. Circuit for (all) District(s) of North Carolina
189. Ohio U.S. Circuit for (all) District(s) of Ohio
190. Oregon U.S. Circuit for the District of Oregon
191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania
192. Rhode Island U.S. Circuit for the District of Rhode Island
193. South Carolina U.S. Circuit for the District of South Carolina
194. Tennessee U.S. Circuit for (all) District(s) of Tennessee
195. Texas U.S. Circuit for (all) District(s) of Texas
196. Vermont U.S. Circuit for the District of Vermont
197. Virginia U.S. Circuit for (all) District(s) of Virginia
198. West Virginia U.S. Circuit for (all) District(s) of West Virginia
199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin
200. Wyoming U.S. Circuit for the District of Wyoming
201. Circuit Court of the District of Columbia
202. Nebraska U.S. Circuit for the District of Nebraska
203. Colorado U.S. Circuit for the District of Colorado
204. Washington U.S. Circuit for (all) District(s) of Washington
205. Idaho U.S. Circuit Court for (all) District(s) of Idaho
206. Montana U.S. Circuit Court for (all) District(s) of Montana
207. Utah U.S. Circuit Court for (all) District(s) of Utah
208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota
209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota
210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma
211. Court of Private Land Claims
Answer:
|
songer_app_stid
|
14
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your task is to identify the state of the first listed state or local government agency that is an appellant.
SHANGO (Cleve Heidelberg, Jr.), Plaintiff-Appellee, v. Mary JURICH, et al., Defendants, Gayle Franzen, former Director of the Illinois Department of Corrections, and Richard DeRobertis, Warden of the Stateville Correctional Center, Defendants-Appellants.
Nos. 81-2175, 81-3079.
United States Court of Appeals, Seventh Circuit.
Argued Feb. 10, 1982.
Decided June 23, 1982.
Rehearing Denied Aug. 10, 1982.
Karen Konieczny, Asst. Atty. Gen., Chicago, 111., for defendants-appellants.
George J. Casson, Jr., Bell, Boyd, & Lloyd, Chicago, Ill, for plaintiff-appellee.
Before CUMMINGS, Chief Judge, ESCHBACH, Circuit Judge, and BONSAL, Senior District Judge.
Pursuant to Circuit Rule 16(e), this opinion has been circulated among all judges of this court in regular active service because it repudiates certain statements made in prior opinions of this court. See note 14, infra. No judge favored a rehearing en banc on this issue.
The Honorable Dudley B. Bonsai, Senior District Judge of the United States District Court for the Southern District of New York, sitting by designation.
ESCHBACH, Circuit Judge.
In this case Illinois prison officials appeal from two preliminary injunctions entered by the district court. Plaintiff, an Illinois state prisoner, claimed that prison officials had unlawfully transferred him from State-ville Correctional Center (Stateville) to Me-nard Correctional Center (Menard). Plaintiff also alleged that certain of his personal effects, which had been packed for transport, were never returned to him. Contending that the intrastate prison transfer and the failure to return his property constituted violations of his rights under the Fourteenth Amendment, he sought preliminary injunctive relief. The district court granted such relief, ordering Illinois prison officials to transfer plaintiff back to State-ville and to return his personal effects. Plaintiff was then transferred to Stateville, but his property was not returned to him. His stay in Stateville lasted but a few months; prison officials once again transferred him to Menard. Plaintiff contended that his transfer back to Menard warranted a contempt citation. The district court held that prison officials did not violate the preliminary injunction by transferring plaintiff back to Menard, but issued a second preliminary injunction ordering the officials to return plaintiff to Stateville once again. Our jurisdiction to review the preliminary injunctions is founded upon 28 U.S.C. § 1292(a)(1). For the reasons which follow, we hold that the issuance of these preliminary injunctions constituted an abuse of discretion and therefore reverse.
I
Plaintiff Cleve Heidelberg, Jr., known as “Shango” in the prison community, is serving a long-term sentence in the Illinois correctional system. During his incarceration at Stateville, which began in 1970, he was active as a “jailhouse lawyer” and aided fellow inmates in a variety of legal proceedings.
In the summer of 1980, another inmate charged that Shango had sexually assaulted him. The details of this charge, and the ensuing disciplinary proceedings, are tan-" gentially germane to the issues raised-in-this appeal in only two - respects: first, Shango claimed that the prison officials used the charge as a mere pretext for harassing him for his legal work; and, second, Shango was committed to segregation for a period of one year commencing on July 14, 1980.
While Shango was exhausting his administrative remedies concerning his commitment to segregation on the sexual assault charge, a prison investigator in August 1980 confronted Shango with an allegation that Shango was in some way involved with weapons inside the prison. Although there was a conflict in the testimony concerning the precise nature of Shango’s alleged contact with weapons, Shango professed igno-ranee regarding the charge. The investigator asked Shango to submit to a polygraph examination concerning the subject of weapons in the prison, but Shango refused, stating that if he knew anything about the subject he had acquired the information through his legal assistance to other inmates and would regard such information as confidential and privileged against disclosure. Stateville’s warden, defendant Richard DeRobertis, who testified that he had received information in the spring of 1980 that Shango was a member of an organized group of prisoners which manufactured homemade weapons, discussed his concern about the subject with Shango in September 1980. Shango claimed that DeRobertis was pressing for what Shango considered to be privileged information and that DeRobertis attempted to induce his cooperation through promises of leniency. According to DeRobertis, Shango stated that it would be impossible for DeRobertis to prove that Shango was involved in the manufacturing of weapons, quoting Shango as saying, “To know is one thing; to show is another.”
Warden DeRobertis ostensibly concluded that Shango was a threat to safety at Stateville because of his involvement with a weapons ring and decided that the transfer of Shango to another correctional facility was the appropriate response to the perceived threat. Consequently, DeRobertis recommended Shango’s transfer and, after his transfer request was approved, Shango was transferred to Menard on October 30, 1980. Shango was not given a hearing concerning the transfer before his move. When he was informed of his imminent move to Menard, Shango packed his personal effects into four cartons. Among the items contained in the cartons were law books, legal papers, personal writings, and political material. All of the cartons were transported to Menard, where officials retained custody of them purportedly for the purpose of inspecting their contents. Three of the boxes, containing legal materials and other personal effects such as clothing, were never returned to Shango. The inter-prison transfer of Shango did not affect his one year commitment to segregation; upon arrival at Menard, he was confined in a segregation unit as he had been in State-ville.
II
On November 19,1980 Shango filed a pro se motion for a temporary restraining order in the U.S. District Court for the Northern District of Illinois seeking relief pertaining to his transfer and his confinement in segregation. The court denied the motion but appointed counsel to represent Shango regarding his claims. Shango alleged that prison officials had placed him in segregation and had transferred him to Menard because he had refused to reveal information confided to him in connection with his legal assistance to other inmates, asserting a violation of his Fourteenth Amendment due process rights. He also alleged that the disciplinary proceedings on the homosexual assault charge were constitutionally deficient and that the seizure of his personal effects and the conditions of his confinement at Menard constituted violations of the Eighth Amendment’s prohibition of cruel and unusual punishment. Plaintiff filed a motion for a preliminary injunction on December 31, 1980, seeking, inter alia, an order directing prison officials to transfer him back to Stateville, place him in non-segregation status there, restore good time credit, and return his personal effects to him. After a two day evidentiary hearing and the filing of post-hearing briefs, the court granted such a preliminary injunction in a Memorandum of Opinion and Order entered July 13, 1981. 521 F.Supp. 1196.
The district court held that plaintiff had not sustained his burden of demonstrating a likelihood of success on his principal claim that his confinement in segregation and transfer to Menard were the result of his refusal to reveal putatively confidential information to prison officials. Nevertheless, the court found the disciplinary proceedings resulting in his confinement in segregation violative of due process on procedural grounds and ordered a cessation of such confinement and a restoration of good time. Similarly, the court found a procedural due process violation regarding Shango’s transfer to Menard. Proceeding on “the basis that Warden DeRobertis had a good faith belief that Shango posed a threat to the safety of Stateville,” id. at 1202, the court held that administrative regulations of the Illinois Department of Corrections were not followed by prison officials with respect to Shango’s transfer. The court interpreted these regulations to require a hearing prior to an inmate’s interprison transfer, viewing the requirement as vesting a personal right to such a hearing in a prisoner recommended for transfer. The court reasoned that the existence of the regulations created a justifiable expectation on the part of inmates that no transfer would occur without a hearing. This expectation, the court held, constitutes a liberty interest protected by the Fourteenth Amendment’s due process clause. Because Shango was transferred without a hearing, the court concluded that he had been deprived of liberty without due process of law. Moreover, the court viewed the prison official’s failure to provide him with a hearing as a per se violation of the Fourteenth Amendment’s equal protection clause. These legal conclusions convinced the court that Shango had demonstrated “substantially more” than a likelihood of success on the merits of his claim. Id. at 1204. It also found the conditions of Shango’s confinement at Menard “appalling” and indicated that such conditions constituted irreparable harm, but did not address the merits of plaintiff’s Eighth Amendment argument. Id. at 1200, 1204. Finally, having found unconstitutional actions on the part of state officials and violations of plaintiff’s due process rights, the court believed that “the injury to Shango must by definition outweigh any harm” that might be caused to defendants in granting the relief sought and stated that it is a “contradiction in terms to say that vindicating due process rights” could dis-serve the public interest. Id. at 1204.
Having thus applied the standards for imposing preliminary injunctive relief, the court ordered defendants to transfer Shan-go to Stateville. Given that the district court characterized Shango’s due process right as coterminous with the perceived state created right to remain in a particular prison until a hearing was held concerning a recommended transfer, it is perhaps not surprising that the court viewed the only possible remedy for this situation as a transfer back to Stateville; the court did not consider, in its opinion at least, the possibility of merely ordering the state officials to provide Shango that which they had denied him — an opportunity to state his reasons for opposing the transfer. It did, however, anticipate the possibility of prison officials conducting such a hearing upon Shango’s return to Stateville, and stated the following concerning such a development:
This Court expresses no opinion as to whether a determination could properly now be made, if the requirements of due process were scrupulously adhered to, that the safety of Stateville requires Shango’s transfer. At this point the alleged information on which the original decision was made is even more stale, and any proposed new proceeding would of course have to be scrutinized with care to make sure it was not really retaliatory for either Shango’s having brought this action or Shango’s jailhouse lawyering or both.
Id. at 1204 n.ll.
Regarding plaintiff’s personal effects, in spite of the fact that the district court stated that “[i]t appears highly likely that the material may have been lost or destroyed,” id. at 1201, the court ordered defendants to return the personal property.
Defendants transferred Shango to State-ville in August 1981 where he was placed in non-segregation status; his property was not returned to him. Within weeks, Warden DeRobertis instituted proceedings to send Shango back to Menard. At his request the Stateville Institutional Assignment Committee met with Shango. Shango was told the reason for the transfer — the warden’s opinion that such a transfer was in the best interests of the institution and in Shango’s best interest — and Shango objected to the transfer. The committee approved of the transfer by a 2-1 majority. Shango was sent back to Menard on November 6, 1981.
Plaintiff filed a pro se petition for an order directing defendants to show cause why they should not be held in contempt of the district court’s preliminary injunction. Once again, court appointed counsel interceded on Shango’s behalf. The court did not enter a show cause order nor did it hold an evidentiary hearing. Instead, in a Memorandum Opinion and Order entered December 8, 1981, relying upon documentary material, the court held that defendants were not in contempt of its order. It then proceeded to scrutinize the documentary record of the transfer proceedings. Noting that DeRobertis’ recommendation for the transfer was based upon his review of Shango’s entire institutional record and behavior and noting a report relied upon in seeking the transfer was a summary of Shango’s disciplinary record, the district court stated: “There can be no question that the transfer was indeed ‘disciplinary.’ ” Since in the district court’s view a disciplinary interprison transfer had to be preceded by a hearing, the court proceeded to analyze whether Shango’s appearance before the Institutional Transfer Committee fulfilled that requirement. Describing both the reasons for the transfer and the hearing as “Kafkaesque,” the court found the proceedings “totally lacking in notice and a meaningful opportunity to be heard” and indicated that the asserted grounds for the transfer were too vague to be refuted by Shango and too stale to form the basis of a valid interprison transfer. Without holding an evidentiary hearing and without applying the standards applicable to the granting of preliminary injunctive relief, the district court ordered defendants to transfer Shan-go from Menard to Stateville once again. In addition, in response to an allegation by Shango that his conditions at Stateville (during his brief stay there) were different than they had been before he was placed in segregation, the court also ordered that Shango’s conditions of confinement had to be the same as the status quo ante.
Defendants appeal from both preliminary injunctions entered by the district court. In No. 81-2175, they maintain that the district court’s order directing the transfer of Shango to Stateville and mandating the return of his personal property constituted an abuse of discretion, arguing that prison regulations neither required a hearing nor gave rise to a liberty interest under the Fourteenth Amendment. They do not appeal from the district court’s decision concerning Shango’s placement in segregation. In No. 81-3079, defendants again argue that a hearing was unnecessary to effectuate the transfer and further argue that if a hearing was necessary, Shango’s appearance before the transfer committee was sufficient. They do not appeal from that portion of the district court’s order concerning Shango’s conditions of confinement. Shango has not been transferred back to Stateville; he remains at Menard.
Ill
A
This court will reverse the grant of a preliminary injunction “if the issuance of the injunction, in light of the applicable standard, constituted an abuse of discretion.” Doran v. Salem Inn, Inc., 422 U.S. 922, 931-32, 95 S.Ct. 2561, 2567-2568, 45 L.Ed.2d 648 (1975). In order to be awarded preliminary injunctive relief, a plaintiff “must establish a reasonable probability of success on the merits, irreparable injury, the lack of serious adverse effects on others, and sufficient public interest.” Kolz v. Board of Education, 576 F.2d 747, 748 (7th Cir. 1978). The issuance of a preliminary injunction must be guided by sound legal principles and a preliminary injunction predicated on a clear mistake of law merits reversal. See Charles v. Carey, 627 F.2d 772, 776 (7th Cir. 1980). See also Douglas v. Beneficial Finance Co. of Anchorage, 469 F.2d 453, 454 (9th Cir. 1972) (“[W]hen [the] grant or denial [of a preliminary injunction] is based upon an erroneous legal premise; the order is then reviewable as is any other conclusion of law.”); FTC v. Southwest Sunsites, Inc., 665 F.2d 711, 717 (5th Cir. 1982); City of South Pasadena v. Gold-schmidt, 637 F.2d 677, 678 (9th Cir. 1981). Compare Ekanem v. Health & Hospital Corp. of Marion County, 589 F.2d 316, 319 (7th Cir. 1978) (per curiam) with Menominee Rubber Co. v. Gould, Inc., 657 F.2d 164, 166 (7th Cir. 1981). See generally Buffalo Courier-Express, Inc. v. Buffalo Evening News, Inc., 601 F.2d 48, 59 & n. 18 (2d Cir. 1979) (Judge Friendly cogently discusses the inconsistent and confusing formulations of the abuse of discretion standard applicable to appellate review of interlocutory injunctions.) Moreover, the nature of the relief granted affects our review: “mandatory preliminary writs are ordinarily cautiously viewed and sparingly issued.” Jordan v. Wolke, 593 F.2d 772, 774 (7th Cir. 1978) (per curiam) (footnote omitted).
B
■Illinois prison officials want Shango imprisoned at Menard. Shango would prefer to be incarcerated at Stateville. Shango has been transferred from Stateville to Me-nard twice in the recent past, but in the district court’s view neither of these transfers comported with the requirements of the Fourteenth Amendment.
The Fourteenth Amendment prohibits a state from depriving a person of life, liberty, or property without due process of law. In order to ascertain whether state action affecting an individual is violative of this prohibition, two inquiries are made: first, a life, liberty, or property interest within the meaning of the clause must be identified; and, second, the degree of process due to the individual before he can be deprived of that interest must be ascertained. Compare Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) with Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974).
The former inquiry may, of necessity in certain cases, require an examination of state law. Property interests, for example, “are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law . . . . ” Board of Regents v. Roth, supra, 408 U.S. at 577, 92 S.Ct. at 2709. Indeed, state law is the primary source of property rights in our federal system. Liberty interests, on the other hand, may either originate in the Constitution or be created by state law. When state law is a possible source of a liberty interest, the analysis concerning its identification as a constitutionally protected interest “parallels the accepted due process analysis as to property.” Wolff v. McDonnell, supra, 418 U.S. at 557, 94 S.Ct. at 2975. This analysis involves a search for mutually explicit understandings that support an individual’s “legitimate claim of entitlement” to a benefit. Board of Regents v. Roth, supra, 408 U.S. at 577, 92 S.Ct. at 2709. The parallel between the property and liberty interest analyses, however, is not unwavering, and in some settings it is inappropriate strictly to apply a property interest analysis, which is guided by principles of contract law, to the task of determining the existence of constitutionally protected liberty interests. See Jago v. Van Curen, 454 U.S. 14, 17-23, 102 S.Ct. 31, 34-36, 70 L.Ed.2d 13 (1981) (per curiam).
Although the existence of a liberty or property interest may be ascertained by reference to state law, once such an interest is identified, the task of defining the procedural protections which attach to that interest is wholly a matter of federal constitutional law and is accomplished through application of the balancing analysis of Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). See, e.g., United States Labor Party v. Oremus, 619 F.2d 683, 689 (7th Cir. 1980). See generally Arnett v. Kennedy, 416 U.S. 134, 164, 94 S.Ct. 1633, 1649, 40 L.Ed.2d 15 (1974) (Powell, J., concurring), 177, 94 S.Ct. at 1655 (White, J., concurring and dissenting in part), 206, 94 S.Ct. at 1669 (Marshall, J., dissenting). To be sure, state procedural protections are not ignored. Rather, once it is determined what process is due to the individual before he can be deprived of the specific liberty or property interest by the state, state procedures are scrutinized to see if they comport with the federal procedural due process requirements. However, state procedural protections cannot define what process is due. The Fourteenth Amendment’s limitation on state action would be illusory indeed if state practices were synonymous with due process.
A state prison inmate has no liberty interest, originating in the Constitution of the United States, in remaining in a particular penitentiary. Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976). The due process clause, in and of itself, does not “protect a duly convicted prisoner against transfer from one institution to another within the state prison system.” Id. at 225, 96 S.Ct. at 2538. Consequently, the Constitution does not mandate a nationwide rule requiring certain procedural formalities, such as a hearing, prior to such a transfer. Id. at 229, 96 S.Ct. at 2540. This is true even in the case of disciplinary transfers: the due process clause, in and of itself, “does not require hearings in connection with [intrastate interprison] transfers whether or not they are the result of the inmate’s misbehavior or may be labeled as disciplinary or punitive.” Montanye v. Haymes, 427 U.S. 236, 242, 96 S.Ct. 2543, 2547, 49 L.Ed.2d 466 (1976). “Whatever expectation the prisoner may have in remaining at a particular prison so long as he behaves himself, it is too ephemeral and insubstantial to trigger procedural due process protections so long as prison officials have discretion to transfer him for whatever reason or for no reason at all.” Meachum v. Fano, supra, 427 U.S. at 228, 96 S.Ct. at 2540.
Under these principles it is plain that Shango had no liberty interest originating in the Constitution which would trigger the procedural protections of the Fourteenth Amendment. The district court recognized as much, but purported to identify a liberty interest originating in state law. Specifically, it held that Department of Corrections regulations created such a liberty interest. We disagree.
The Supreme Court has “repeatedly held that state statutes may create liberty interests that are entitled to the procedural protections of the Due Process Clause of the Fourteenth Amendment.” Vitek v. Jones, 445 U.S. 480, 487, 100 S.Ct. 1254, 1261, 63 L.Ed.2d 552 (1980). There is at least some conflict in authority, however, concerning the constitutional significance of non-statutory sources of such interests. Compare Gorham v. Hutto, 667 F.2d 1146 (4th Cir. 1981) (state prison policy guidelines insufficient basis for affording liberty interest) with Walker v. Hughes, 558 F.2d 1247, 1255 (6th Cir. 1977) (prison policy statements can create liberty interest). We reject the view that state administrative pronouncements are in some juridical sense so inferior to statutory or judicial sources of legal rules that they are not worthy of constitutional recognition. Indeed, the Supreme Court in Meachum v. Fano, supra, 427 U.S. at 229, 96 S.Ct. at 2540, indicated that administrative regulations could spawn a due process liberty interest. After some arguable conflict in our cases, compare Solomon v. Benson, 563 F.2d 339, 342-43 (7th Cir. 1977) with Durso v. Rowe, 579 F.2d 1365, 1369 (7th Cir. 1978), cert. denied, 439 U.S. 1121, 99 S.Ct. 1033, 59 L.Ed.2d 82 (1979), we concluded that non-statutory sources could create liberty interests. Arsberry v. Sielaff, 586 F.2d 37, 46-47 (7th Cir. 1978). It is therefore sufficient to observe in the context of this case that duly promulgated prison regulations may give rise to such an interest. By doing so, we do not imply that any official pronouncement of prison officials can spawn a protectable right. Cf. Jago v. Van Curen, supra, 454 U.S. at 17, 102 S.Ct. at 33 (official notification of grant of parole did not create liberty interest.)
The dispositive issue in this case is not the source of the purported liberty interest, but rather, “ ‘the nature of the interest at stake.’ ” Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 2103, 60 L.Ed.2d 668 (1979) (quoting Board of Regents v. Roth, supra, 408 U.S. at 571, 92 S.Ct. at 2705 (emphasis in Roth)). In Chavis v. Rowe, 643 F.2d 1281, 1290 (7th Cir.), cert. denied sub nom., Boles v. Chavis, 454 U.S. 907, 102 S.Ct. 415, 70 L.Ed.2d 225 (1981), we analyzed the effect of Illinois Department of Corrections A.R. 819, relied upon by the court below, and explicitly held that the Illinois regulations “establish procedures for the exercise of discretion, but they do not limit the decision to transfer to any particular reason. Without such a limitation, the regulations do not recognize any right on the part of the prisoner to serve in a particular institution.” (emphasis added). That holding disposed of Shango’s claim that the Illinois regulations, standing alone, created a liberty interest triggering procedural due process protections under the analysis of Meachum v. Fano. If prison officials are accorded discretion under state law to transfer a prisoner for whatever reason or for no reason at all, the procedural protections of the due process clause cannot attach, quite simply, because there is no substantive liberty interest at stake. The existence of such discretion “preclude[s] the implication of a liberty interest deserving of due process protection.” Anthony v. Wilkinson, 637 F.2d 1130, 1141 (7th Cir. 1980), vacated on other grounds mem. sub nom., Hawaii v. Mederios, 453 U.S. 902, 101 S.Ct. 3135, 69 L.Ed.2d 989 (1981) (remanded for further consideration in light of Howe v. Smith, 452 U.S. 473, 101 S.Ct. 2468, 69 L.Ed.2d 171 (1981)).
The argument that the procedures established by the regulations can themselves be considered a liberty interest is analytically indefensible. We have repeatedly observed: “Procedural protections or the lack thereof do not determine whether a property right exists.” Suckle v. Madison General Hospital, 499 F.2d 1364, 1366 (7th Cir. 1974). See Endicott v. Huddleston, 644 F.2d 1208, 1214 (7th Cir. 1980); Jeffries v. Turkey Run Consolidated School District, 492 F.2d 1, 3 (7th Cir. 1974); Adams v. Walker, 492 F.2d 1003, 1006 (7th Cir. 1974). Accord, Amezquita v. Hernandez-Colon, 518 F.2d 8, 13 (1st Cir. 1975), cert. denied, 424 U.S. 916, 96 act 1117, 47 L.Ed.2d 321 (1976). See generally Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974). This principle is just as applicable, indeed perhaps more so, to an analysis of liberty interests in light of the Meachum approach of “ ‘equatpng] the threshold test for the finding of a liberty interest with that for determining whether a property interest exists.’ ” Arsberry v. Sielaff, 586 F.2d 37, 46 (7th Cir. 1978) (citation omitted). A liberty interest is of course a substantive interest of an individual; it cannot be the right to demand needless formality. In order to establish such an interest, a “plaintiff must show a substantive restriction on the [official’s] discretion .... ” Suckle v. Madison General Hospital, supra, 499 F.2d at 1366. Even if Illinois regulations provide a right to a hearing prior to interprison transfers, that procedural right is not accorded federal due process protection. Indeed, plaintiff’s argument that the existence of a liberty interest springs from the regulations is not only inconsistent with our holding in Chavis, but is refuted by Meachum itself. In Meachum, the court of appeals interpreted applicable regulations as entitling inmates to a hearing, see Fano v. Meachum, 520 F.2d 374, 379-80 (1st Cir. 1975), rev’d, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976), but that “did not deter the Supreme Court from concluding that, on the record before it, state law created no liberty interest.” Lombardo v. Meachum, 548 F.2d 13, 15 (1st Cir. 1977). Of course the existence of state procedural protections is not irrelevant to a determination of whether a substantive interest exists. A state often provides for specific procedures to ensure the realization of a parent substantive right. See generally Hughes v. Rowe, 449 U.S. 5, 15, 101 S.Ct. 173, 179, 66 L.Ed.2d 163 (White, J., concurring). The existence of such protections may suggest the presence of a substantive limitation on official action, Suckle v. Madison General Hospital, supra, 499 F.2d at 1366, and it is “not inconceivable that substantive protections could be inferred from the existence of
Question: What is the state of the first listed state or local government agency that is an appellant?
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_source
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the forum that heard this case immediately before the case came to the court of appeals.
CROISSANT v. ADAMS et al.
Circuit Court of Appeals, Seventh Circuit.
June 13, 1928.
No. 3988.
1. Injunction <©=>136(2) — Holder of certificates in syndicate held entitled to injunction pendente lite to preserve assets in hands of trustees pending suit for refund of subscriptions.
Shareholder, suing as one of class of holders of certificates in syndicate, held entitled to injunction pendente lite to preserve assets in hands of trustee and former trustees of syndicate, pending suit to recover subscriptions paid in accordance with alleged agreement providing for return of subscriptions in event land was not purchased by certain date.
2. Courts <3=405(3) — Appeal does not lie to Circuit Court of Appeals from refusal to remove attorneys appearing for codefendant because they formerly acted for defendant (23 USCA § 227).
Under 28 USCA § 227, appeal does not lie to Circuit Court of Appeals from refusal of motion on behalf of defendant to remove certain attorneys appearing in action, for codefendant in matters important in suit.
Appeal from the District Court of the United States for the Eastern Division of the Northern. District of IHinois.’
Suit by Frank E. Adams against G. Frank Croissant and others. From an interlocutory order restraining defendant Croissant and others from disposing of funds held by them, and from a denial pf a motion on behalf of said defendant to remove certain attorneys appearing for other defendants, said defendant' appeals.
Affirmed.
Joseph R. Roach, of Chicago, Ill., for appellant.
Robert N. Golding, of Chicago, Ill., for appellees.
Before ALSCHULER, EVANS, and PAGE, Circuit Judges.
ALSCHULER, Circuit Judge.
Croissant appeals from an interlocutory order of the District Court restraining him and others “from selling, transferring, giving away, or otherwise disposing of any and all funds of said G. Prank Croissant Boca Baton Syndicate, and any other funds, or parts thereof, held by them and which are comprehended within the pleadings,” and restraining all persons from legal proceedings against the property of the syndicate held by any of the defendants; and from the denial of a motion on behalf of Croissant to remove certain attorneys appearing in the action for defendants Presehem and the Union Bank, on the ground that they had formerly acted for defendant Croissant in matters important in the suit, and in regard to which the position of Croissant is “drastically antagonistic” to that of the other defendants.
Frank E. Adams on September 10, 1927, brought suit as one of a class of holders of certificates in the G. Prank Croissant Boca Baton Syndicate, and as purchaser of a lot sold by the syndicate in its Boca Baton development, averring that defendants Presehem and the Union Bank of Chicago, of which Presehem was vice president and trust officer, on or about August 15, 1925, became trastees of the syndicate organized for the purchase and development of a tract of Florida land, and that as such they had collected money paid by purchasers of membership certificates in the syndicate; such certificates stating that in the event the land was not purchased by January 2, 1926, the subscriptions would be refunded.
It was further charged that Presehem and the bank received as trustees a sum exceeding $1,500,000 for the purchase of such Florida land, of which they paid $760,000 to an irresponsible person, Boyland, for contracts relating to the land intended for the development, which was lost to the syndicate by Boyland’s default; that on December 15, 1925, Croissant succeeded Presehem and the bank as trustee, and collected about $500,000 in that capacity; that there were more than 750 subscribers to the syndicate, who, because of the failure of the syndicate to acquire title to the land, it is alleged, are now entitled to the return of their subscriptions.
The bill prayed for an accounting, dissolution of the trust, and judgment against the defendants for such sums as were lost by their dereliction.
Croissant answered,'making the same allegations as Adams as to Presehem and the bank, elaborating upon them in regard to the attempted purchase of land, but denying the charges as to his own conduct. He admits that as trustee he collected and borrowed large sums of money, most of which became lost to the syndicate through payments as commissions, salaries, interest on mortgages, and for development work, and charges that, but for the conduct of the other defendants, he would have carried out the project, and have sold lots to the sum of $40,000,000, and have earned for himself $6,000,000, instead of which he has been required to pay out over $1,000,000, in part his own money, to certificate holders and purchasers of lots.
The answer prayed an accounting by Presehem and the bank, on behalf of both the syndicate and Croissant individually, for moneys advanced by him, and for judgment against them for losses sustained because of their unlawful acts.
The answers of defendants Presehem and the bank denied that they had ever been or acted as trustees of the syndicate, but admitted the bank received a large sum as subscriptions to the syndicate, and paid out large sums, but always at the request and with the authorization of Croissant; that the attempted purchase of land was by men associated with Croissant, and not by Presehem or the bank, and that with.the knowledge of the members of the syndicate Croissant spent large sums for purposes other than those of the trust; that, for a loan to Croissant of $100,000 by the bank, Croissant had assigned as collateral his claims for deferred commissions, and his beneficial interest in the trust, for all of which the bank claims to be entitled to indemnity from Croissant and a lien on his interest in the syndicate; that other parties, associated with Croissant, had likewise borrowed from the bank and assigned their interests as security; and it was prayed that they be made parties and required to account, and that Croissant be removed as trustee, and a receiver be appointed, the trust wound up, and the assets protected by temporary and permanent injunctions.
Numerous affidavits and exhibits accompanied these pleadings, revealing an unusually involved and confusing situation, a diversity of claims, and little assurance of the existence of assets sufficient to meet them all. Croissant moved the court to require the attorneys representing Presehem. and the bank to cease from further representing them in the cause, and on the hearing of this motion the court denied it, and entered the interlocutory injunction complained of.
The record shows a complicated and unusual situation, one in which it was not only within the discretion of the court to preserve the assets by injunction pendente lite, but where a failure to so protect them might more properly have given ground for complaint. Any party deeming the pendency of the injunction harmful to his interest may by appropriate action undertake to speed the cause, and in view of the many interests apparently involved we indulge the hope that .it has already so far progressed that its disposition may quickly follow.
As to the complaint of the court’s action on the motion to remove or dismiss certain attorneys appearing in the cause, we do not feel this is a matter whereon appeal will lie at this stage of the cause. The statute which alone confers authority to entertain appeals from interlocutory orders and decrees does not authorize appeal from an order such as this. 28 U. S. Code, 227 (28 USCA § 227).
The order for interlocutory injunction is affirmed.
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_rtcouns
|
E
|
What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule that the defendant's right to counsel was violated (for some reason other than inadequate counsel)?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless".
UNITED STATES of America, Plaintiff, Appellant, v. P. J. O’DONNELL & SONS, Inc., Defendant, Appellee.
No. 5031.
United States Court of Appeals First Circuit.
Dec. 13, 1955.
Melvin Richter, Washington, D. C., Attorney, with whom Warren E. Burger, Asst. Atty. Gen., Joseph Mainelli, U. S. Atty., Providence, R. I., and Herman Marcuse, Attorney, Washington, D. C., were on brief, for appellant.
Walter H. Sharkey, Woonsocket, R. I., for appellee.
Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.
WOODBURY, Circuit Judge.
In the spring of 1947 the Naval Supply Depot at Newport, Rhode Island, issued a so-called Sales Catalogue inviting bids for the purchase and removal of two lots of food refuse, one meat scraps and fats and the other bones, to be produced at the Newport Naval Base during the one-year period from July 1, 1947 to June 30, 1948. The first page of the catalogue is divided into paragraphs with separate marginal titles. The third title and paragraph reads as follows: “Time and Place of Sale: 11:00 a. m. (EDST) Monday, June 16, 1947, Naval Supply Depot, Newport, Rhode Island.” A deposit of $500 was required with each bid which would be returned to the successful bidder in the form of a credit against the last payment due under the contract. Under the heading Submission of Bids it was provided among other things that: “All bids to be considered must be received or sent in time to be received at 11:00 a. m. (EDST), June 16, 1947.” The Government reserved the right to reject any or all bids, to waive defects in bids, and to withdraw any lots of refuse from sale prior to acceptance of a bid with respect to that lot. Under the heading Withdrawal of Bids, it was provided: “Bids may be withdrawn prior to the bid opening by the delivery of written or telegraphic notice of withdrawal prior to the opening. The withdrawal of a bid after the opening will entitle the Government to retain the deposit.” In the event of breach the Government reserved the right to terminate the contract, resell the material, charge the purchaser with any loss it might suffer, and retain any deposit in its hands “on account of said loss.”
On June 12, 1947, P. J. O’Donnell & Sons, Inc., submitted a bid for both lots of food refuse advertised for sale and sent a certified check for $500 with its bid. The bid and check were received in due course, and on June 19 the Supply Officer in command at Newport notified the O’Donnell company by letter .that its bid had been accepted. The O’Donnell company asserts that it did not receive this letter of acceptance until June 23, but however that may be, its president wrote to the Supply Officer on June 27 that the contract would not be performed. This letter reads in material part: “We were awarded the contract on two lots offered in sales catalogue No. B-68-47. We find that we will be unable to fulfill the terms of this contract and consequently, we wish to withdraw ”
On receipt of this letter the Supply Officer at the Naval Station on July 1st awarded the food refuse contract to the next highest bidder. At the end of the contract period it charged O’Donnell with the difference between the amount actually received for the refuse from that bidder and the amount which would have been received had O’Donnell performed its contract, less O’Donnell’s $500 deposit and less also another deposit of $510 made' by O’Donnell in connection with a separate contract awarded to it for the purchase and removal of food refuse from the Quonset Point Naval Air Station at Quonset Point, Rhode Island, which O’Donnell had satisfactorily performed. O’Donnell refused to pay and the United States brought the instant suit in the court below to recover damages in accordance with its claim.
The O’Donnell company in its answer asserted that no contract had ever come into existence for the reason that its bid had not been seasonably accepted by the Government. Wherefor it averred that the Government’s recovery was limited to the $500 deposit and that it was entitled to return of the $510 deposit retained by the Government under the Quonset Point contract for which it filed a counterclaim.
The case was submitted to the court below on an agreed statement of facts and exhibits. That court found the defendant’s argument persuasive and consequently concluded that the Government was not entitled to the relief for which it asked and that O’Donnell was entitled to recover $510 on its counterclaim and for its costs. Judgment was entered in accordance with these conclusions and the Government took this appeal.
The District Court rested its decision on the time and place of sale provision of the catalogue quoted at the outset of this opinion. It recognized that this provision could not be construed literally as importing an actual sale of the food refuse on June 16, 1947, for the refuse was not then in existence but was to be produced over a one-year period beginning on July 1, 1947. But it said that the only possible meaning of the provision which could have been contemplated by the parties was that a contract for the sale of the refuse would be made at the time and place specified. Then, construing the phraseology of the catalogue strictly against the Government which had chosen it, the court said that the Government had obligated itself to accept the defendant O’Donnell’s bid, if it accepted the bid at all, on June 16, 1947. Hence it concluded that the acceptance of the bid three days later on June 19 was too late to be effective with the result that no contract ever came into existence,
We think the District Court overstressed one provision of the catalogue to the exclusion of others. This we think constituted a violation of the cardinal rule that the provisions of a contract are not to be construed separately as isolated items but that the parts of a contract are to be read together as related elements of a unitary business undertaking to the end that the meaning of the parties to the transaction may be ascertained with as much certainty as circumstances permit. So read, we think the provision relied upon below does .not support the conclusion there reached.
The words of the time and place provision of the catalogue were not happily chosen. Literally they import, but, as the court below recognized, they could not mean, that an actual sale of food refuse described would occur precisely at the time and place specified. Nor do we think that they mean that a contract for the sale of the food refuse would be entered into precisely at the time announced, for that view makes the provision inconsistent with 1 other stipulations in the catalogue.
The time set for the so-called sale was 11:00 a. m. on June 16, and that is exactly the same time and day set for the opening of the bids. These provisions must be construed with reference to one another, and the time and place of opening bids provision implies a time-lag between the opening of the bids and the acceptance of one of them, for price was not the only consideration. A low bidder’s financial responsibility and the adequacy of his equipment and personnel to do the job of removal were important factors for consideration in awarding the contract, and some time at least would be required and must have been contemplated in which to investigate these matters. Other provisions of the catalogue give concrete support to this assumption that an interval of time between opening and acceptance must have been in the contemplation of the parties.
Indeed, the very provision with respect to the opening of bids itself permits consideration not only of bids received at the time specified but also of bids “sent in time to be received” at the appointed time. This can only mean that some leeway was given to bidders who sent their bids in season to arrive promptly in the ordinary course of the mails but whose bids were late in coming in because of some unforeseen delay. This clause is obviously pointless if a contract had to be awarded immediately upon the opening of the bids. Furthermore, the Government’s reservation of power to reject bids, waive defects in bids, and withdraw lots from sale prior to the acceptance of a bid implies an interval of time between opening and acceptance in which to exercise discretion. And like indications are also to be found in the provision permitting withdrawal of a bid after opening but before acceptance with forfeiture of the amount deposited as security.
Still other provisions of the catalogue give indications of a similar nature. We see no occasion to enumerate them. It will suffice to say that even if there were any ambiguity the defendant was not misled by it for its president’s letter of June 27, 1947, quoted earlier in this opinion, shows clearly that at that time he believed the acceptance of the O’Donnell company’s bid on June 19 gave rise to a valid contract to purchase and remove the two lots of food refuse described in the catalogue.
Our conclusion from the foregoing considerations, and others that we might mention, is that the correct inference to be drawn from the various terms of the catalogue construed together is that no definite rigid time was set for the acceptance of bids. Thus the Government had a reasonable time in which to accept, and under the circumstances disclosed it seems evident that three day’s delay in acceptance -was not unreasonable. It follows that a contract came into existence and the defendant-appel-lee is liable for breaking it.
The defendant-appellee’s contention that even if it is guilty of breach of contract its liability is limited to forfeiture of the $500 deposited as bid security is refuted by the terms of the contract itself and the reasoning of this court in Conti v. United States, 1 Cir., 1946, 158 F.2d 581. We see no reason to discuss this contention further.
The judgment of the District Court is vacated and the case is remanded to that Court for further proceedings consistent with this opinion; the appellant recovers costs on appeal.
Question: Did the court rule that the defendant's right to counsel was violated (for some reason other than inadequate counsel)?
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer:
|
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".
UNITED STATES of America, Plaintiff-Appellee, v. Gary CELESTINE, Defendant-Appellant.
No. 89-8046
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
May 22, 1990.
Mary Stillinger, Caballero, Panetta & Ortega, El Paso, Tex., (Court-appointed), for defendant-appellant.
LeRoy M. Jahn, Philip Police, Asst. U.S. Attys., Ronald F. Ederer, Helen M. Evers-berg, U.S. Atty., San Antonio, Tex., for plaintiff-appellee.
Before REAVLEY, KING and JOHNSON, Circuit Judges.
PER CURIAM:
Gary Celestine appeals the district court’s imposition of a one year sentence for violations of the conditions of a term of supervised release. We affirm.
I. FACTS AND PROCEDURAL HISTORY
In September 1988, Gary Celestine (Cel-estine) was arrested after detectives observed Celestine shoplifting several items from the Main Post Exchange at Fort Bliss, Texas. Celestine was indicted on one count of theft of government property valued in excess of $100.00, a felony. In a plea bargain agreement, Celestine pled guilty to an information charging him with theft of government property under $100.00, a misdemeanor, in exchange for dismissal of the felony indictment. The district court sentenced Celestine to eight months’ imprisonment and a one year term of supervised release. Celestine was released from custody after being given credit for time served.
After his release, Celestine’s lack of adherence to the conditions of his supervised release term culminated in the district court’s revocation of the term and an order sentencing Celestine to one year’s imprisonment. Celestine thereafter filed the instant appeal.
II. DISCUSSION
On appeal, Celestine argues that twenty months’ imprisonment violates the eighth amendment’s proscription against cruel and unusual punishment because it exceeds the one year statutory maximum provided for an offense involving the theft of government property valued at less than $100.00. Celestine’s argument, however, is foreclosed by a prior holding of this Court in United States v. Butler, 895 F.2d 1016 (5th Cir.1989). In Butler, the Court, concluding that the addition of a supervised term of release does not extend a defendant’s term of imprisonment, rejected the argument that the eighth amendment is violated when the sentencing court imposes a term of supervised release in addition to the statutory maximum term of imprisonment.
While the instant case factually differs somewhat from Butler in that the supervised term here was not only imposed but revoked, the reasoning in Butler nevertheless effectively defeats Celestine’s argument. Congress has authorized two separate punishments — the primary term of incarceration and the term of supervised release. See 18 U.S.C. § 3559(a)(6); 18 U.S.C. §§ 3583, subsections (a) and (b)(3). In the instant case, it was Celestine’s violation of the conditions of his supervised release rather than the underlying offense conduct, that led to Celestine’s current incarceration.
Celestine next argues that twenty months of incarceration effectively upgrades his misdemeanor to a felony. In that regard, Celestine contends that his sentence constitutes a violation of his fifth amendment right to indictment by grand jury for an infamous crime. Celestine’s argument is predicated on the contention that the one year term of supervised release and the eight month term on the underlying conviction are part and parcel of the same sentence. As discussed above, however, Congress has authorized two separate punishments for the offense of which Celestine was convicted. Moreover, the fifth amendment protection which Celestine seeks attaches only to infamous crimes. Since the United States Supreme Court has held that an infamous crime is one punishable by imprisonment in a penitentiary, and since Congress has foreclosed imprisonment in the penitentiary for the offense conduct in the instant case, Celestine’s contentions are without merit. See Green v. United States, 356 U.S. 165, 78 S.Ct. 632, 2 L.Ed.2d 672 (1958) and 18 U.S.C. § 4083.
III. CONCLUSION
The district court’s imposition of a one year term of incarceration after finding that Celestine violated the conditions of his term of supervised release was not error. The sentence is affirmed.
AFFIRMED.
. Celestine combines the term of eight months on the underlying conviction with the term of twelve months on the revocation of the term of supervised release to arrive at the twenty month figure.
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_treat
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals.
WESTINGHOUSE CREDIT CORPORATION, Appellee, v. STATE FURNITURE COMPANY OF WINSTON-SALEM, Inc., State Furniture Company of Mount Airy, Inc., State Furniture Company of Statesville, Inc., State Furniture Company of Reidsville, Inc., and State Furniture Company of North Wilkesboro, Inc., Appellants.
No. 13004.
United States Court of Appeals Fourth Circuit.
Argued April 10,1969.
Decided April 17, 1969.
Eugene H. Phillips, Winston-Salem, N. C., for appellants.
Walter Rand, III, Greensboro, N. C., (Herbert S. Falk, Jr., and Falk, Carruthers & Roth, Greensboro, N. C., on brief), for appellee.
Before SOBELOFF, BOREMAN and BRYAN, Circuit Judges.
PER CURIAM:
This is an action upon a contract dated May 24, 1962, as amended September 5, 1963, under which Westinghouse Credit Corporation purchased certain sales accounts receivable of the State Furniture Company corporations. The purchase was subject to provisions for recourse against State in the event an account debtor defaulted in his payments. It was to enforce these provisions that Westinghouse brought this suit against State. Final judgment was entered for the plaintiff by the District Court after a jury-waived trial.
On review we see no error in the fact findings of the Court or in its interpretation of the contract. They are clearly set out in the two opinions of the District Judge, and upon them we affirm the orders on review. See Westinghouse Credit Corporation v. State Furniture Company et al., 298 F.Supp. 567, 570 (1968).
Affirmed.
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:
|
sc_issue_2
|
10
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue of the Court's decision. Determine the issue of the case on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis.
JORDAN, SECRETARY OF STATE OF CALIFORNIA, et al. v. SILVER.
No. 935.
Decided June 1, 1965.
Thomas C. Lynch, Attorney General of California, Charles E. Corker and Charles A. Barrett, Assistant Attorneys General, Sanford N. Gruskin, Deputy Attorney General, and Herman F. Selvin for appellants.
Phill Silver, appellee, pro se.
Per Curiam.
The motion of the appellant the Senate of the Legislature of California to take judicial notice of official judicial records is denied. The motion to strike the motion to dismiss or affirm is also denied. The motion to affirm is granted and the judgment is affirmed.
Question: What is the issue of the decision?
01. voting
02. Voting Rights Act of 1965, plus amendments
03. ballot access (of candidates and political parties)
04. desegregation (other than as pertains to school desegregation, employment discrimination, and affirmative action)
05. desegregation, schools
06. employment discrimination: on basis of race, age, religion, illegitimacy, national origin, or working conditions.
07. affirmative action
08. slavery or indenture
09. sit-in demonstrations (protests against racial discrimination in places of public accommodation)
10. reapportionment: other than plans governed by the Voting Rights Act
11. debtors' rights
12. deportation (cf. immigration and naturalization)
13. employability of aliens (cf. immigration and naturalization)
14. sex discrimination (excluding sex discrimination in employment)
15. sex discrimination in employment (cf. sex discrimination)
16. Indians (other than pertains to state jurisdiction over)
17. Indians, state jurisdiction over
18. juveniles (cf. rights of illegitimates)
19. poverty law, constitutional
20. poverty law, statutory: welfare benefits, typically under some Social Security Act provision.
21. illegitimates, rights of (cf. juveniles): typically inheritance and survivor's benefits, and paternity suits
22. handicapped, rights of: under Rehabilitation, Americans with Disabilities Act, and related statutes
23. residency requirements: durational, plus discrimination against nonresidents
24. military: draftee, or person subject to induction
25. military: active duty
26. military: veteran
27. immigration and naturalization: permanent residence
28. immigration and naturalization: citizenship
29. immigration and naturalization: loss of citizenship, denaturalization
30. immigration and naturalization: access to public education
31. immigration and naturalization: welfare benefits
32. immigration and naturalization: miscellaneous
33. indigents: appointment of counsel (cf. right to counsel)
34. indigents: inadequate representation by counsel (cf. right to counsel)
35. indigents: payment of fine
36. indigents: costs or filing fees
37. indigents: U.S. Supreme Court docketing fee
38. indigents: transcript
39. indigents: assistance of psychiatrist
40. indigents: miscellaneous
41. liability, civil rights acts (cf. liability, governmental and liability, nongovernmental; cruel and unusual punishment, non-death penalty)
42. miscellaneous civil rights (cf. comity: civil rights)
Answer:
|
songer_adminrev
|
O
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the federal agency (if any) whose decision was reviewed by the court of appeals. If there was no prior agency action, choose "not applicable".
UNITED STATES of America, Plaintiff-Appellee, v. Grover C. JONES, Jr., Defendant-Appellant.
No. 87-5126.
United States Court of Appeals, Fourth Circuit.
Argued July 28, 1989.
Decided Oct. 17, 1989.
Rehearing and Rehearing In Banc Denied Nov. 15, 1989.
See also 811 F.2d 1505 (unpublished opinion).
Dennis William Dohnal (Bremner, Baber & Janus, Richmond, Va., on brief) for defendant-appellant.
John P. Rowley, III, Asst. U.S. Atty., Fairfax, Va. (Michael W. Carey, U.S. Atty., Nancy C. Hill, Asst. U;S. Atty., Charleston, W.Va., on brief), for plaintiff-appellee.
Before RUSSELL, WIDENER, and HALL, Circuit Judges.
K.K. HALL, Circuit Judge:
Grover C. Jones, Jr. appeals from his conviction on five counts of mail fraud in violation of 18 U.S.C. §§ 1341, 2. He challenges his conviction on several grounds. After a thorough review of the record, we find those grounds without merit and affirm.
I.
Jones was arrested on charges of mail fraud on October 17, 1984. The same day he was committed by a magistrate to the Federal Correctional Institution in Butner, North Carolina for an evaluation to determine his mental competency. On November 20, 1984, he was indicted with three other individuals on five counts of mail fraud. A superseding indictment was returned on December 14, 1984 on the same charges against the same individuals, including Jones. Jones remained at Butner until December 21, 1984, when he was released on bond.
He subsequently moved to dismiss the indictment. The district court granted the motion to dismiss finding that Jones’ rights under the Speedy Trial Act, 18 U.S.C. §§ 3161 et seq., had been violated. The court found that only thirty of the sixty-six days Jones spent at Butner for psychiatric evaluation were excludable under section 3161(h)(1)(A) of the Act. Consequently, the original trial date of February 20, 1985 exceeded the seventy day limit of the Act by twenty-six days. Although the district court granted the motion to dismiss, its dismissal of the indictment was without prejudice.
The government appealed from the court’s dismissal order, but on June 25, 1985, a grand jury returned a new indictment against Jones, charging the same offenses as those charged in the two previous indictments and the government withdrew its appeal. Jones moved to dismiss the 1985 indictment on various grounds including error in dismissing the previous indictment without prejudice. The district court denied the motion and the case proceeded to trial.
The charges which led to Jones’ indictment stemmed from a fire that occurred in Matoaka, West Virginia on October 29, 1981. The government presented evidence at trial that Jones, Richard Lewis, John Whitlow, and his son, Joseph Whitlow, devised a scheme to defraud Aetna Casualty and Surety Company, the insurer of a building owned by Lewis, by burning the building and submitting a false claim to the insurance company for the resulting damage. The scheme began in the fall of 1981 when Jones approached Lewis, who was having business and financial problems, and suggested burning the building to collect the insurance proceeds. Lewis agreed and agreed to pay Jones $10,000 from the insurance funds. Jones arranged for the Whitlows to burn the building. He paid them $1,500 to commit the arson. The Whitlows were arrested as they were leaving the burning building and were tried on arson charges in West Virginia state court. Lewis filed a claim with the insurance company for damage to the building due to the fire. The company retained counsel to investigate the fire and the claim was eventually denied. The facts surrounding the charges against Jones came to light when the Whitlows agreed to cooperate with authorities during the course of the state prosecution. The correspondence between Lewis and the insurance company formed the basis for the mail fraud charges.
A jury convicted Jones on all five counts of mail fraud. He was sentenced to consecutive terms of five years imprisonment on each of the first three counts and concurrent suspended terms of five years on counts four and five. He was also fined $5,000 and placed on five years probation. Jones appeals.
II.
The appellant’s principal contention on appeal is that the district court failed to comply with the Speedy Trial Act when it dismissed the December 1984 indictment without prejudice. The Act provides that in determining whether to dismiss a case with or without prejudice
the court shall consider, among others, each of the following factors: the seriousness of the offense; the facts and circumstances of the case which led to the dismissal; and the impact of a re-prosecution on the administration of this chapter and on the administration of justice.
18 U.S.C. § 3162(a)(2). The district court in this case addressed the “facts and circumstances” leading to the dismissal in its original order but did not address the “seriousness of the offense” or the “impact of a reprosecution.” In a subsequent order, however, entered after the appellant moved to dismiss the 1985 indictment on the ground that the court failed to address all three statutory factors in its dismissal order, the same court stated that it “did mentally consider” all the factors outlined in 18 U.S.C. § 3162(a)(2) during the process of dismissing the indictment. The court found that appellant was not prejudiced by the omission of a written analysis of the two factors that were not committed to writing.
The decision to dismiss for noncompliance with the Speedy Trial Act with or without prejudice is within the discretion of the trial court. United States v. Taylor, 487 U.S. 326, 108 S.Ct. 2413, 101 L.Ed.2d 297 (1988). United States v. Brainer, 691 F.2d 691 (4th Cir.1982). That discretion, however, is not unlimited, the Act mandating dismissal of an indictment upon “violation of precise time limits, and specifying criteria to consider in deciding whether to bar reprosecution.” 108 S.Ct. at 2423. In Taylor the Supreme Court ruled that a district court’s dismissal with prejudice under section 3162(a)(2) was an abuse of discretion where the court failed to set out relevant factual findings and to clearly articulate its application of the statutory factors to the facts of the case. Jones does not argue that the district court abused its discretion in dismissing his indictment without prejudice, but argues that Taylor automatically entitles him to a remand for the court to address the two statutory factors it previously failed to address. We do not read Taylor quite so broadly.
In Taylor the Court found it significant that Congress had included clear and specific factors for a district court to consider in deciding whether to bar reprosecution, i.e., whether to dismiss an indictment with or without prejudice. The Court found that because the factors were listed in the statute, the statute required that those factors be applied to each case. Id. at 2419. The appellant relies on this language to support his claim that he is entitled to a remand for consideration of the factors in the statute. Under the circumstances of this case, we do not believe that a remand is required.
In the Speedy Trial Act ... Congress specifically and clearly instructed that courts “shall consider, among others, each of the following factors,” § 3162(a)(2) (emphasis added), and thereby put in place meaningful standards to guide appellate review ... Where, as here, Congress has declared that a decision will be governed by consideration of particular factors, a district court must carefully consider those factors as applied to the particular case and, whatever its decision, clearly articulate their effect in order to permit meaningful appellate review.
In Taylor the Supreme Court did not reverse simply because the district court failed to address one or more of the statutory factors. Although the Court emphasized the importance of a district court articulating its reasons for its choice of remedy and addressing the factors set out by Congress, it reversed because, after analyzing the district court’s decision in the framework of the Act and in light of the record, it found that the court had abused its discretion with regard to the merits of the speedy trial claim. “The District Court failed to consider all the factors relevant to the choice of a remedy under the Act. What factors it did rely on were unsupported by factual findings or evidence in the record.” Id. at 2423.
During oral argument of this case, appellant referred us to United States v. White, 864 F.2d 660 (9th Cir.1988), where the court relied on Taylor in reversing a conviction because the district court failed to make specific factual findings and to discuss the statutory factors in support of its decision to dismiss without prejudice under section 3162(a)(2). In White, the court remanded the case to the district court for analysis and articulation of the application of the statutory factors to the facts of that case.
Jones urges us to follow the Ninth Circuit and remand his case for analysis of the statutory factors. In White the district court made no specific factual findings in support of its decision to dismiss without prejudice and the record contained no discussion of the statutory factors. The linchpin of the reviewing court’s decision to reverse was that it was unable to find an adequate basis in the record for the district court’s decision. We do not believe the case before us mandates the same result.
Though we certainly do not minimize the importance of the Court’s holding in Taylor with regard to articulation of the statutory factors, where the record amply supports the district court’s decision, we do not believe Taylor requires automatic reversal. Instead, we choose to apply the abuse of discretion standard recognized in Taylor to the facts of this case, and in doing so, acknowledge that we must “undertake more substantive scrutiny” than would otherwise be the case, “to ensure that the judgment is supported in terms of the factors identified in the statute.” 108 S.Ct. at 2420. Unlike White, the record here is sufficient for us to make a determination of whether the district court’s decision to dismiss without prejudice was an abuse of discretion. After carefully reviewing the record we conclude that the district court did not abuse its discretion and that to remand the case, as the appellant requests, would not only be unnecessary, but would be pointless.
The first factor to be considered under the statute is the seriousness of the crime. In this case, we recognize that the crime charged is a very serious one. Where this is true, the sanction of dismissal with prejudice should ordinarily be imposed only for serious delay. United States v. Carreon, 626 F.2d 528 (7th Cir.1980). Second, although the original trial date was 126 days after the indictment, thirty of those days were excludable for a determination of appellant’s mental competency. Thus, the trial date was scheduled twenty-six days outside of the Act. However, as we previously pointed out in footnote one of this opinion, the statute providing for competency examination after arrest and before trial was amended only days before appellant’s arrest and under the previous statute there would have been no violation of the Speedy Trial Act. It appears that the magistrate simply applied the wrong statute. With regard to the third factor, i.e., the impact of a reprosecution on the administration of justice and on the administration of the Speedy Trial Act, there is no evidence that a delay in the trial date was for the government to obtain a tactical advantage, that the delay was purposeful or that the appellant was prejudiced by the delay. See United States v. Simmons, 786 F.2d 479 (2d Cir.1986). Under the circumstances, where the delay was not intentional, was not overly long, and there is no evidence of prejudice to the appellant, we find that the district court did not abuse its discretion in dismissing the indictment without prejudice. Even though the district court failed to give a written analysis of the statutory factors as it should have done, that failure was harmless in view of the fact that the record amply supports the decision.
Accordingly, the judgment of the district court is affirmed.
AFFIRMED.
. Prior to October 12, 1984, 18 U.S.C. § 4244 permitted commitment for competency examination after arrest and before trial for "such reasonable period as the court may determine.” The statute was amended on October 12, 1984, five days before Jones was arrested, by 18 U.S.C. § 4247(b) to allow commitment for “a reasonable period, but not to exceed thirty days_” When he committed Jones to Butner, the magistrate did not limit the commitment period to a specific period of time, apparently operating under the old statute.
. Jones did not appeal from the court's dismissal order. Had he done so, this Court would have lacked jurisdiction to hear the appeal. See United States v. Kelley, 849 F.2d 1395 (11th Cir.1988); United States v. Reale, 834 F.2d 281 (2d Cir.1987); United States v. Bratcher, 833 F.2d 69 (6th Cir.1987) (all holding that a criminal defendant may not immediately appeal when an indictment is dismissed without prejudice for a Speedy Trial Act violation). Cf. United States v. Lanham, 631 F.2d 356 (4th Cir.1980) (holding that dismissal without prejudice is not immediately reviewable).
. 18 U.S.C. § 1341 makes it a crime to "devise any scheme or artifice to defraud, ... [and] for the purpose of executing such scheme or artifice ... place in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service, or take or receive therefrom, any such matter or thing, or knowingly cause to be delivered by mail according to the direction thereon, ... any such matter or thing."
. Jones also argues that the district court erred in: (1) its ruling regarding an alleged plea agreement; and (2) in allowing evidence of similar acts under Fed.R.Evid. 404(b). Also, he argues that the evidence on counts two, four, and five was not sufficient to sustain his conviction. We have reviewed these contentions and find them to be without merit.
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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sc_issuearea
|
M
|
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.
GRANVILLE-SMITH v. GRANVILLE-SMITH.
No. 261.
Argued February 3-4, 1955.
Decided April 11, 1955.
Abe Fortas argued the cause for petitioner. With him on the brief were George H. T. Dudley and Milton V. Freeman.
Mr. Justice Frankfurter
delivered the opinion of the Court.
This case concerns § 9 (a) of the divorce law of the Virgin Islands:
“Notwithstanding the provisions of sections 8 and 9 hereof, [] if the plaintiff is within the district at the time of the filing of the complaint and has been continuously for six weeks immediately prior thereto, this shall be prima facie evidence of domicile, and where the defendant has been personally served within the district or enters a general appearance in the action, then the Court shall have jurisdiction of the action and of the parties thereto without further reference to domicile or to the place where the marriage was solemnized or the cause of action arose.”
The circumstances of the case and the course of the litigation are briefly stated. Petitioner filed suit for divorce because of “irreconcilable incompatibility” in the District Court of the Virgin Islands on March 16, 1953. The complaint alleged that she had been a “resident and inhabitant” of the Islands for more than six weeks prior to the commencement of the action, that respondent was not a resident of the Islands, and that the couple had no children under 21. Through Virgin Islands counsel — authorized by a power of attorney executed in New York — respondent entered an appearance, waived personal service, denied petitioner’s allegations, and filed a “Waiver and Consent” to “hearing of this cause as if by default” and to “such findings of fact and conclusions of law and decree as to the Court may seem just and reasonable.”
Solely on the basis of petitioner’s testimony that she had resided in the Virgin Islands continuously for 43 days before bringing suit, the Commissioner who heard the case found that she was a resident and inhabitant of the Islands and had been so for more than six weeks prior to the action. Having also found that the claimed ground for divorce was substantiated, he recommended that she be granted a divorce. On petitioner’s motion to confirm the Commissioner’s recommendation, the District Court inquired of petitioner’s counsel whether he had “any more evidence to offer on the question of domicile.” Since no further evidence was proffered, the court, relying on its earlier opinion in Alton v. Alton, 121 F. Supp. 878, dismissed the complaint for want of jurisdiction over petitioner.
The Court of Appeals for the Third Circuit, sitting en banc, affirmed, 214 F. 2d 820, on the basis of its decision in the Alton case, 207 F. 2d 667. In that case, the Court of Appeals, likewise sitting en ba’nc and three judges dissenting, held § 9 (a) in violation of “due process” guaranteed by the Fifth Amendment and the Virgin Islands Organic Act. This Court had granted certiorari in the Alton case, 347 U. S. 911, but intervening mootness aborted disposition on the merits. 347 U. S. 610. The obvious importance of the issue which brought the Alton case here led us to grant certiorari in this case. 348 U. S. 810. In view of the lack of genuine adversary proceedings at any stage in this litigation, the outcome of which could have far-reaching consequences on domestic relations throughout the United States, the Court invited specially qualified counsel “to appear and present oral argument, as amicus curiae, in support of the judgment below.” 348 U. S. 885.
We need not consider any of the substantive questions passed on below and we intimate nothing about them. For we find that Congress did not give the Virgin Islands Legislative Assembly power to enact a law with the radiations of § 9 (a).
Article IV, § 3 of the Constitution gives the Congress authority to “make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States . . . .” Accordingly, Congress has from time to time established governments in the various territories that have come under federal control. Territorial government in the continental United States was customarily viewed as a transition step to statehood, and statehood in fact resulted. The Spanish-American War opened a new chapter. Beginning with the Treaty of Paris, the United States acquired by conquest, treaty or purchase outlying territories for which statehood was not contemplated. The position of these territories in our national scheme gave rise to lively political controversy. Answers to some of the constitutional issues that arose were unfolded in a series of decisions best formulated, perhaps, in opinions by Mr. Chief Justice White and Mr. Chief Justice Taft.
A vital distinction was made between “incorporated” and “unincorporated” territories. The first category had the potentialities of statehood like unto continental territories. The United States Constitution, including the Bill of Rights, fully applied to an “incorporated” territory. See, e. g., Rassmussen v. United States, 197 U. S. 516. The second category described possessions of the United States not thought of as future States. To these only some essentials, withal undefined, of the Constitution extended. See, e. g., Balzac v. Porto Rico, 258 U. S. 298. The incidence of the differentiation fell in two areas: (a) the right of the individual to trial by jury and similar protections, e. g., Balzac v. Porto Rico, supra; (b) the right of the Federal Government to tax territorial products on a nonuniform basis, e. g., Downes v. Bidwell, 182 U. S. 244.
The legislative power of territories has customarily been expressed as extending to “all rightful subjects of legislation” not inconsistent with the Constitution or laws of the United States. This conventional phrasing was altered to subjects of “local application,” or “not locally inapplicable,” in the case of unincorporated territories such as pre-Commonwealth Puerto Rico, the Virgin Islands, and Guam.
The questions that have arisen under grants of legislative powers to territories have fallen into three main classes: (1) those in which the sovereign immunity of the territory was in issue, e. g., Porto Rico v. Rosaly y Castillo, 227 U. S. 270; (2) those in which conflict was claimed with the United States Constitution or laws, e. g., Puerto Rico v. Shell Co., 302 U. S. 253; Territory of Montana v. Lee, 2 Mont. 124; (3) those in which the “rightful” nature of particular territorial legislation was assailed, e. g., Tiaco v. Forbes, 228 U. S. 549; People v. Daniels, 6 Utah 288, 22 P. 159. It is the third group that is our immediate concern. In determining the rightfulness of territorial legislation the courts have considered whether a territorial legislature has transcended the familiar bounds of legislation. See, e. g., Christianson v. King County, 239 U. S. 356. One of the earlier questions regarding the power of territorial legislatures involved the right to pass laws applicable not generally but to specific individuals or portions of a territory. In Maynard v. Hill, 125 U. S. 190, this Court held that a legislative divorce granted without cause by the Oregon Territorial Legislature to a local homesteader was valid though the wife was not in the Territory and had had no notice. The Court relied on the historic practice of individual legislative divorces. It is significant, however, that while the litigation was in progress Congress forbade territories to pass “local” or “special” divorce laws. 24 Stat. 170, now 48 U. S. C. § 1471.
The United States acquired the Virgin Islands by purchase from Denmark in 1917, but it was not until the Organic Act of 1936 that Congress provided a complete government — including a Legislative Assembly. The Organic Act: (1) labeled the Islands an “insular possession” of the United States, 49 Stat. 1807, 48 U. S. C. § 1405a; (2) endowed the Legislative Assembly (consisting of the two pre-existing municipal councils in joint session) with power to enact laws on “all subjects of local application not inconsistent with . . . this title or the laws of the United States made applicable to said islands, but no law shall be enacted which would impair rights existing or arising by virtue of any treaty entered into by the United States, nor shall the lands or other property of nonresidents be taxed higher than the lands or other property of residents,” 49 Stat. 1811, 48 U. S. C. § 1405r; (3) enacted a due process clause for the Islands, 49 Stat. 1815, 48 U. S. C. § 1406g; and (4) gave the District Court jurisdiction over “[a]ll cases of divorce,” 49 Stat. 1814, 48 U. S. C. § 1406 (4).
The Legislative Assembly was held on a checkrein by a presidentially appointed governor who shared with the President an absolute veto over legislation. Congress had the customary reserved power to annul legislation. 49 Stat. 1810, 48 U. S. C. § 1405o.
By virtue of the 1936 Organic Act, the Legislative Assembly passed the 1944 divorce law making six weeks’ “residence” by an “inhabitant” sufficient for divorce jurisdiction. In 1952, the Court of Appeals for the Third Circuit construed “inhabitant” and “residence” to imply “domiciliary” and “domicile.” Burch v. Burch, 195 F. 2d 799. The legislature thereupon provided that six weeks’ “physical presence” was adequate as a basis for divorce. The Governor vetoed this amendment. To overcome the veto, § 9 (a) was enacted. Bill No. 55, 17th Legislative Assembly of the Virgin Islands of the United States, 3d Sess., 1953.
Congress passed a revised Organic Act in 1954. Act of July 22, 1954, 68 Stat. 497, 48 U. S. C. A. § 1541 et seq. Previous to the legislation, this Court, on June 1, had dismissed Alton v. Alton, supra, for mootness. Though the judgment below was vacated, the Court of Appeals had expressed its views on the constitutionality of § 9 (a). Certainly no inference favorable to its validity can be drawn from the revised Organic Act.
In giving content to the power to pass legislation having “local application,” two considerations at once obtrude. The phrase most liberally interpreted can be no broader than “all rightful subjects of legislation.” Yet in the Organic Acts of the “incorporated” territories, Alaska and Hawaii, there is specific limitation on divorce jurisdiction to cases where the plaintiff has resided in such territory for at least two years. 37 Stat. 514, 48 U. S. C. § 45 (Alaska); 31 Stat. 150, 48 U. S. C. § 519 (Hawaii). It is hardly reasonable to believe that Congress was less concerned with the scope of divorce jurisdiction in the “unincorporated” possession of the Virgin Islands, so temptingly near the mainland, and that it intended to give them unrestricted freedom in this sensitive field of legislation. The Virgin Islands divorce law, with the exception of substantive grounds drawn from Danish law, copied that of Alaska. See Compiled Laws of the Territory of Alaska (1913) §§ 1293-1306; cf. Terrill v. Terrill, 2 Alaska 475; Wilson v. Wilson, 10 Alaska 616. Secondly, “local application” obviously implies limitation to subjects having relevant ties within the territory, to laws growing out of the needs of the Islands and governing relations within them. An example is provided by Puerto Rico v. Shell Co., supra, which involved the validity of a territorial antitrust law. “It requires no argument to demonstrate that a conspiracy in restraint of trade within the borders of Puerto Rico is clearly a local matter, and that it falls within the precise terms of the power granted . . . .” 302 U. S., at 261. And in upholding the power of the Philippine Legislature to deport dangerous aliens, Mr. Justice Holmes, for the Court, observed that “the local government has all civil and judicial power necessary to govern the Islands. . . . It would be strange if a government so remote should be held bound to wait for the action of Congress in a matter that might touch its life unless dealt with at once and on the spot.” Tiaco v. Forbes, 228 U. S., at 557.
In such light the decisive question is: was § 9 (a) concerned with the needs and interests of the local population or was it, as amicus pressed upon us, designed for export? For the purpose of regulating divorce of Virgin Islanders, it may be abstractly relevant but practically it has no point. The Virgin Islanders could of course bring themselves within the 1944 law as interpreted in Burch v. Burch, 195 F. 2d 799. They would have no difficulty in making the appropriate showing of connection with the forum. Virgin Islanders seeking divorce are not sojourners, mere transients in the Islands. Cf. Berger v. Berger, 210 F. 2d 403 (C. A. 3d Cir.). It hardly needs proof to read this statute as one designed for people outside the Virgin Islands. The Virgin Islands Legislative Assembly stated the purpose of § 9 (a) with disarming frankness. It is inadmissible to assume that Congress authorized the Assembly to traffic in easy divorces for citizens of the States as a stimulus to money-making by the Islanders. What Mr. Chief Justice Taft for the Court said in another connection is strikingly applicable here: “All others can see and understand this. How can we properly shut our minds to it?” Child Labor Tax Case, 259 U. S. 20, 37. But it sometimes helps to prove, as well as to see, the obvious.
In 1950 the Virgin Islands had 26,665 inhabitants in its 133 square miles; for at least 20 years the population had remained relatively static, and the 1952 census, estimates indicate a slight decline. In 1940, 34 divorces were granted in the Islands (1.4 per 1,000 population). In 1951 the figure had reached 312 (12.5 per 1,000). This, per capita, represented the second highest figure for any State or Territory of the United States. Moreover, the Virgin Islands far exceeded its leader, Nevada, in ratio of divorces to marriages. Nevada in 1951 had 55.7 divorces per 1,000 population but at the same time had 289.5 marriage licenses per 1,000. Thus while Nevada granted 5 marriage licenses for every divorce, the Virgin Islands was granting 4 divorces for every 3 marriages. Lest this year be considered unrepresentative, we may look to 1950 and 1952, during which the Islands granted 2 for 1 and 7 for 5 divorces over marriages respectively. Only in the Virgin Islands did divorces exceed marriages during any of the years under consideration. The national average in 1940 was 2.0 divorces and 12.1 marriages per 1,000 population. Apart from some wartime fluctuations, the ratios have been quite stable. In 1951 the average was 2.5 divorces and 10.4 marriages. Thus, while the Virgin Islands was somewhat below the national average for marriages in 1951, it was 5 times the national average for divorce.
In 1952 the Virgin Islands hit its peak of divorces. Three hundred and forty-three were granted (14.3 per 1,000) as opposed to only 237 marriages. But the decisions in Alton v. Alton reduced the divorce figure to 236 in 1953, and only 111 divorces were granted between January and November of 1954.
The extraordinary rate of divorce and the disproportion between marriages and divorces raise controlling doubts of the “local” application of § 9 (a), especially in the context of its legislative history. Such doubts are confirmed by further inquiry. The 1950 Census reveals that only 416 widowed or divorced men and 1,105 widowed or divorced women resided in the Islands. Thus the number of divorces in 1951 nearly equalled the total widowed or divorced male population of the Islands. Remarriage can serve only as a partial explanation. Petitioner’s brief reveals a second surprising disproportion. Although the two components of the Islands (the Municipality of St. Croix and the Municipality of St. Thomas and St. John) are nearly equal in population, and although in 1940 St. Croix granted 18 divorces and St. Thomas and St. John 16, by 1952 St. Croix had increased only to 33, whereas St. Thomas and St. John had gone up nearly 2,000% to 310. It is not inappropriate to take judicial notice of the considerably greater tourist facilities on the Islands of St. Thomas and St. John.
We have no information as to the duration of residence of divorcees under the questioned law. But we are advised that contest of jurisdiction occurred in only 1% of the 310 cases concluded in St. Thomas and St. John in 1952 and that contest of the merits was no more frequent. A general appearance — which strips the court of its power to inquire further into domicile — but no contest as to any issue, was the practice in most cases. The clear impact of the legislation, even if we disregard the candid explanations of local political, commercial and legal sources and the rapid drop in divorces following the initial decision of unconstitutionality, is to provide a convenient forum for prosperous persons with substantial connections to the mainland, who desire to sever their marital ties while vacationing. The Commissioner in the case at bar did not even ask petitioner where she lived in the Virgin Islands.
The Legislative Assembly is much less liberal toward would-be voters. One-year domicile is required. Further, a personal property or income tax on persons physically present for six weeks but with no stronger link to the Islands would no doubt be strongly challenged and of questionable validity.
In the circumstances, we cannot conclude that if Congress had consciously been asked to give the Virgin Islands Legislative Assembly power to do what no State has ever attempted, it would have done so.
Affirmed.
Mr. Justice Harlan took no part in the consideration or decision of this case.
Section 8 deals with annulment and is not here relevant. Section 9 reads as follows: “In an action for the dissolution of the marriage contract or for a legal separation the plaintiff therein must be an inhabitant of the district at the commencement of the action and for six weeks prior thereto, which residence shall be sufficient to give the Court jurisdiction without regard to the place where the marriage was solemnized or the cause of action arose.” Bill No. 14, 8th Legislative Assembly of the Virgin Islands of the United States, Sess., 1944.
Section 9 (a) was added by amendment in 1953. Bill No. 55, 17th Legislative Assembly of the Virgin Islands of the United States, 3d Sess., 1953.
Section 7 (8), Bill No. 14, 8th Legislative Assembly of the Virgin Islands of the United States, Sess., 1944.
Beginning with Downes v. Bidwell, 182 U. S. 244, 287-344; see Coudert, The Evolution of the Doctrine of Territorial Incorporation, 26 Col. L. Rev. 823.
In Balzac v. Porto Rico, 258 U. S. 298.
Both were distinguished from States. “A state, except as the Federal Constitution otherwise requires, is supreme and independent. ... A dependency [here the Philippines] has no government but that of the United States, except in so far as the United States may permit. . . . [0]ver such a dependency the nation possesses the sovereign powers of the general government plus the powers of a local or a state government in all cases where legislation is possible.” Cincinnati Soap Co. v. United States, 301 U. S. 308, 317.
E. g., 37 Stat. 514, 48 U. S. C. § 77 (Alaska).
39 Stat. 964, 48 U. S. C. § 821 (Puerto Rico); 68 Stat. 500, 48 U. S. C. A. § 1574 (a) (Virgin Islands); 64 Stat. 387, 48 U. S. C. § 1423a (Guam).
“. . . the granting of divorces was a rightful subject of legislation according to the prevailing judicial opinion of the country, and the understanding of the profession, at the time the organic act of Oregon was passed by Congress, when either of the parties divorced was at the time a resident within the territorial jurisdiction of the legislature.” 125 U. S., at 209.
The local law as it had existed under Danish rule was continued in effect, 39 Stat. 1132, 48 U. S. C. § 1392, subject to change by the two Colonial Councils, the instruments of municipal government for the two districts of the Islands. Presidential approval of any change in this body of law was required. Ibid. Each Colonial Council subsequently passed a divorce law, verbally drawn from that of Alaska. Burch v. Burch, 195 F. 2d 799, 805-806.
See note 1, supra.
His objection was that the amendment made physical presence sufficient in both ex parte and contested actions.
For the first time, the legislation explicitly characterized the Virgin Islands an “unincorporated territory.”
The Senate Report spoke as follows: “S. 3378 declares the Virgin Islands to be ‘an unincorporated territory of the United States of America.’ Thus, their legal status would be distinct and wholly different from that of Hawaii and Alaska, which are Incorporated Territories. . . . [S]tatehood has unvaryingly been the destiny of all Incorporated Territories. ... On the other hand, there is no precedent ... for statehood for a political, geographic, and economic unit such as the Virgin Islands would become under S. 3378. . . . A still higher degree of self-government and autonomy is, of course, possible within that framework — such as an elective governor when the people are ready for it.” S. Rep. No. 1271, 83d Cong., 2d Sess. 8. Congressman Powell, on the other hand, criticized “. . . the unwarranted failure of the bill to provide for any advance whatsoever toward increased self-government.” 100 Cong. Rec. 8664.
See note 12, supra. The Senate Report on the 1936 Organic Act gives some idea of the legislative purpose: . . the inhabitants of the Virgin Islands ... are capable of managing their local affairs. Unfortunately, the islands are not yet economically self-supporting. Hence it has been necessary to provide for an amount of Federal control over local affairs commensurate with continuing expenditures of Federal funds to subsidize the local government. . . . Matters of purely local concern are placed within local legislative power. The leyying of local taxes and the expenditure of local revenue are authorized. It has not been deemed wise to give the local government power to incur bonded indebtedness so long as local revenue is insufficient to pay the entire cost of local government. Locally enacted bills may be vetoed by the Governor.” S. Rep. No. 1974, 74th Cong., 2d Sess. 2.
For the history of the Alaskan provision, see 48 Cong. Rec. 5267-5270, 5293, 5297-5298.
Of course a suit for damages brought by a resident of the Virgin Islands for an injury occurring on the mainland, or a suit against a defendant served in the Virgin Islands arising out of a commercial transaction connecting both the Virgin Islands and the mainland, would clearly contain a relevant tie amply affording jurisdiction to the courts of the Virgin Islands.
We are dealing here with the bearing of the statute on consensual divorces. So far as these are concerned § 9 (a) is an entirety, for in its application the first part of the section accomplishes precisely the same thing as the second. Under our system of law a judge is not charged with the role of an adversary party, and as such called upon to assume responsibility for rebutting a statutory presumption.
Cf. People v. Daniels, 6 Utah 288, 293, 22 P. 159, 160, “. . . as to the extent to which the legislature may act on a rightful subject, when the limit is not expressly fixed, the court must ascertain the limit and determine whether the law is within it. To illustrate:
. . . Divorce is also a rightful subject of legislation, but a law giving any married person who might apply to the court a right to a divorce without cause would be invalid.”
Three members of the Legislative Assembly addressed themselves to the reasons for changing the result of the Court of Appeals in Burch v. Burch, see p. 8, supra.
Mr. Rohlsen spoke with authority as member in charge of tlje bill: “The divorce business in the Virgin Islands is quite a thriving business. I understand that this business provides quite an income for the municipalities since it is estimated that over $300,000 a year is spent within the Virgin Islands by persons who have been using the facilities of our divorce law to put their homes in order. Unfortunately, because of an error in the draft of original law . . . and because of the Governor’s attitude ... it now becomes necessary for us to consider another amendment which is designed to enhance this u-coming [sic] business in the islands .... I am not trying to speak for or against the moral ethics of divorce because, as far as I am concerned, those issues were denied when the statute was encted [sic] making it possible for people to come here for divorces. ... I consider this matter as a means of enhancing the economy of our islands . . . .”
“The people of the Virgin Islands have enjoyed great financial benefits by an influx of people to these islands for the purpose of getting divorced. ... I recommend to my colleagues this piece of legislation for their favorable consideration inasmuch as they can see the disadvantage in which the municipalities have been placed by not having the divorce court functioning at the present time.” Proceedings and Debates, 17th Legislative Assembly of the Virgin Islands of the United States, 3d Sess., 1953, pp. 46-47, 66-67.
Moving adoption of the earlier version of § 9 (a), which the Governor vetoed but which does not, so far as concerns our problem, differ from § 9 (a), Mr. Richards stated: “. . . personally I do not see why this Assembly should be deliberating so extensively on this amendment. Only about 2% of the divorces heard and the decisions rendered in the District Courts affect the residents of the Virgin Islands. I should conclude that this law was enacted not to facilitate the bona fide residents of the Virgin Islands but in order to provide as it were source of economic asset to the islands by which people are brought to our shores and contribute to the general economic welfare of the islands. ... I feel proud to see that only a possible of 2 or three resident[s] of the Virgin Islands are involved in divorce cases a year.” Proceedings and Debates, 17th Legislative Assembly of the Virgin Islands of the United States, 2d Sess., 1953, p. 10.
Mr. Hey wood, in discussing the earlier amendment, observed: “This bill No. 54 before us today appears to be in my opinion, a devise [sic] aimed primarily at transients in the islands. ... I am very well aware of the volume of divorce business being carried on in these islands. ... I have heard that there is anticipated a half a million dollars-business in this current year which will be distributed among lawyers, hotel bills, taxi cabs and other business ventures in the Community.” Id., at p. 8.
The statistics which follow are derived from these sources: United States Bureau of the Census, Statistical Abstract of the United States: 1954, pp. 9, 63, 85, 940, 942; United States Department of Health, Education, and Welfare, Summary of Marriage and Divorce Statistics, United States, 1952, pp. 45, 52-53; United States Department of Health, Education, and Welfare, Monthly Vital Statistics Report, Vol. 3, No. 12, Feb. 15, 1955, p. 7; Brief for Petitioner,
United States Bureau of the Census, Statistical Abstract of the United States: 1954, p.939.
Brief for Petitioner, p. 53.
See Virgin Islands Report, Senate Committee on Interior and Insular Affairs, 83d Cong., 2d Sess. 125-127; VIII Virgin Islands Magazine (Special Edition 1954) 7 et seq.; Murray, The Complete Handbook of the Virgin Islands (1951), 12-100.
The St. Croix Chamber of Commerce Newsletter for Feb. 1, 1954, cited the “change in the divorce situation” as one reason for the tourist slump during the previous season. District Judge Moore, who decided both Alton v. Alton, supra, and this case, wrote the Senate Committee on Interior and Insular Affairs: “. . . the present court is not unsympathetic to the fact that the failure to grant these divorces has affected the economic status of both lawyers and guesthouse keepers . . . .” Virgin Islands Report, Senate Committee on Interior and Insular Affairs, 83d Cong., 2d Sess. 4, 54.
“(b) For the purpose of this law 'residents of the Virgin Islands’ shall be persons who have maintained legal residence in the Virgin Islands for a period of one year next preceding the date of the election, and in the district in which they desire to vote for a period of sixty days next preceding the election. In all cases of doubt as to legal residence, the Board shall request the registrant to submit substantial and satisfactory proof that the said registrant has fulfilled the legal residence requirement. The domicile, which is the registrant’s legal residence, shall be determined in accordance with the following rules:
“1) Every person has a domicile.
“2) There can be but one domicile.
“3) Legal residence or domicile is the place where a person habitually resides when not called elsewhere to work or for some other temporary purpose and to which such person returns in season for rest.
“4) Legal domicile or residence may be changed by joinder of act and intent.
“5) A domicile cannot be lost until a new one has been acquired.
“This subsection shall be strictly enforced by the Board.” Bill No. 86, 18th Legislative Assembly of the Virgin Islands of the United States, 2d Sess., 1954, c. II, § 1.
Question: What is the issue area of the decision?
A. Criminal Procedure
B. Civil Rights
C. First Amendment
D. Due Process
E. Privacy
F. Attorneys
G. Unions
H. Economic Activity
I. Judicial Power
J. Federalism
K. Interstate Relations
L. Federal Taxation
M. Miscellaneous
N. Private Action
Answer:
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sc_casesourcestate
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51
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state or territory of the court whose decision the Supreme Court reviewed.
Genovevo SALINAS, Petitioner
v.
TEXAS.
No. 12-246.
Supreme Court of the United States
Argued April 17, 2013.
Decided June 17, 2013.
Jeffrey L. Fisher, Stanford, CA, for Petitioner.
Alan K. Curry, Houston, TX, for Respondent.
Ginger D. Anders, for the United States as amicus curiae, by special leave of the Court, supporting the Respondent.
Neal Davis, Neal Davis Law Firm, PLLC, Houston, TX, Kevin K. Russell, Goldstein & Russell, P.C., Washington, DC, Jeffrey L. Fisher, Counsel of Record, Pamela S. Karlan, Stanford Law School, Supreme Court Litigation Clinic, Stanford, CA, Dick DeGuerin, DeGuerin & Dickson, Houston, TX, for Petitioner.
Mike Anderson, District Attorney, Alan Keith Curry, Counsel of Record, Carol M. Cameron, Eric Kugler, David C. Newell, Assistant District Attorneys, Harris County District Attorney's Office, Houston, TX, for Respondent.
Justice ALITO announced the judgment of the Court and delivered an opinion in which THE CHIEF JUSTICE and Justice KENNEDY join.
Without being placed in custody or receiving Miranda warnings, petitioner voluntarily answered the questions of a police officer who was investigating a murder. But petitioner balked when the officer asked whether a ballistics test would show that the shell casings found at the crime scene would match petitioner's shotgun. Petitioner was subsequently charged with murder, and at trial prosecutors argued that his reaction to the officer's question suggested that he was guilty. Petitioner claims that this argument violated the Fifth Amendment, which guarantees that "[n]o person ... shall be compelled in any criminal case to be a witness against himself."
Petitioner's Fifth Amendment claim fails because he did not expressly invoke the privilege against self-incrimination in response to the officer's question. It has long been settled that the privilege "generally is not self-executing" and that a witness who desires its protection " 'must claim it.' " Minnesota v. Murphy, 465 U.S. 420, 425, 427, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984) (quoting United States v. Monia, 317 U.S. 424, 427, 63 S.Ct. 409, 87 L.Ed. 376 (1943) ). Although "no ritualistic formula is necessary in order to invoke the privilege," Quinn v. United States, 349 U.S. 155, 164, 75 S.Ct. 668, 99 L.Ed. 964 (1955), a witness does not do so by simply standing mute. Because petitioner was required to assert the privilege in order to benefit from it, the judgment of the Texas Court of Criminal Appeals rejecting petitioner's Fifth Amendment claim is affirmed.
I
On the morning of December 18, 1992, two brothers were shot and killed in their Houston home. There were no witnesses to the murders, but a neighbor who heard gunshots saw someone run out of the house and speed away in a dark-colored car. Police recovered six shotgun shell casings at the scene. The investigation led police to petitioner, who had been a guest at a party the victims hosted the night before they were killed. Police visited petitioner at his home, where they saw a dark blue car in the driveway. He agreed to hand over his shotgun for ballistics testing and to accompany police to the station for questioning.
Petitioner's interview with the police lasted approximately one hour. All agree that the interview was noncustodial, and the parties litigated this case on the assumption that he was not read Miranda warnings. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). For most of the interview, petitioner answered the officer's questions. But when asked whether his shotgun "would match the shells recovered at the scene of the murder," App. 17, petitioner declined to answer. Instead, petitioner "[l]ooked down at the floor, shuffled his feet, bit his bottom lip, cl[e]nched his hands in his lap, [and] began to tighten up." Id ., at 18. After a few moments of silence, the officer asked additional questions, which petitioner answered. Ibid.
Following the interview, police arrested petitioner on outstanding traffic warrants. Prosecutors soon concluded that there was insufficient evidence to charge him with the murders, and he was released. A few days later, police obtained a statement from a man who said he had heard petitioner confess to the killings. On the strength of that additional evidence, prosecutors decided to charge petitioner, but by this time he had absconded. In 2007, police discovered petitioner living in the Houston area under an assumed name.
Petitioner did not testify at trial. Over his objection, prosecutors used his reaction to the officer's question during the 1993 interview as evidence of his guilt. The jury found petitioner guilty, and he received a 20-year sentence. On direct appeal to the Court of Appeals of Texas, petitioner argued that prosecutors' use of his silence as part of their case in chief violated the Fifth Amendment. The Court of Appeals rejected that argument, reasoning that petitioner's prearrest, pre-Miranda silence was not "compelled" within the meaning of the Fifth Amendment. 368 S.W.3d 550, 557-559 (2011). The Texas Court of Criminal Appeals took up this case and affirmed on the same ground. 369 S.W.3d 176 (2012).
We granted certiorari, 568 U.S. ----, 133 S.Ct. 928, 184 L.Ed.2d 719 (2013), to resolve a division of authority in the lower courts over whether the prosecution may use a defendant's assertion of the privilege against self-incrimination during a noncustodial police interview as part of its case in chief. Compare, e.g., United States v. Rivera, 944 F.2d 1563, 1568 (C.A.11 1991), with United States v. Moore, 104 F.3d 377, 386 (C.A.D.C.1997). But because petitioner did not invoke the privilege during his interview, we find it unnecessary to reach that question.
II
A
The privilege against self-incrimination "is an exception to the general principle that the Government has the right to everyone's testimony." Garner v. United States, 424 U.S. 648, 658, n. 11, 96 S.Ct. 1178, 47 L.Ed.2d 370 (1976). To prevent the privilege from shielding information not properly within its scope, we have long held that a witness who " 'desires the protection of the privilege ... must claim it' " at the time he relies on it. Murphy, 465 U.S., at 427, 104 S.Ct. 1136 (quoting Monia, 317 U.S., at 427, 63 S.Ct. 409 ). See also United States ex rel. Vajtauer v. Commissioner of Immigration, 273 U.S. 103, 113, 47 S.Ct. 302, 71 L.Ed. 560 (1927).
That requirement ensures that the Government is put on notice when a witness intends to rely on the privilege so that it may either argue that the testimony sought could not be self-incriminating, see Hoffman v. United States, 341 U.S. 479, 486, 71 S.Ct. 814, 95 L.Ed. 1118 (1951), or cure any potential self-incrimination through a grant of immunity, see Kastigar v. United States, 406 U.S. 441, 448, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972). The express invocation requirement also gives courts tasked with evaluating a Fifth Amendment claim a contemporaneous record establishing the witness' reasons for refusing to answer. See Roberts v. United States, 445 U.S. 552, 560, n. 7, 100 S.Ct. 1358, 63 L.Ed.2d 622 (1980) ("A witness may not employ the privilege to avoid giving testimony that he simply would prefer not to give"); Hutcheson v. United States, 369 U.S. 599, 610-611, 82 S.Ct. 1005, 8 L.Ed.2d 137 (1962) (declining to treat invocation of due process as proper assertion of the privilege). In these ways, insisting that witnesses expressly invoke the privilege "assures that the Government obtains all the information to which it is entitled." Garner, supra, at 658, n. 11, 96 S.Ct. 1178.
We have previously recognized two exceptions to the requirement that witnesses invoke the privilege, but neither applies here. First, we held in Griffin v. California, 380 U.S. 609, 613-615, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), that a criminal defendant need not take the stand and assert the privilege at his own trial. That exception reflects the fact that a criminal defendant has an "absolute right not to testify." Turner v. United States, 396 U.S. 398, 433, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970) (Black, J., dissenting); see United States v. Patane, 542 U.S. 630, 637, 124 S.Ct. 2620, 159 L.Ed.2d 667 (2004) (plurality opinion). Since a defendant's reasons for remaining silent at trial are irrelevant to his constitutional right to do so, requiring that he expressly invoke the privilege would serve no purpose; neither a showing that his testimony would not be self-incriminating nor a grant of immunity could force him to speak. Because petitioner had no comparable unqualified right during his interview with police, his silence falls outside the Griffin exception.
Second, we have held that a witness' failure to invoke the privilege must be excused where governmental coercion makes his forfeiture of the privilege involuntary. Thus, in Miranda, we said that a suspect who is subjected to the "inherently compelling pressures" of an unwarned custodial interrogation need not invoke the privilege. 384 U.S., at 467-468, and n. 37, 86 S.Ct. 1602. Due to the uniquely coercive nature of custodial interrogation, a suspect in custody cannot be said to have voluntarily forgone the privilege "unless [he] fails to claim [it] after being suitably warned." Murphy,supra, at 429-430., 104 S.Ct. 1136
For similar reasons, we have held that threats to withdraw a governmental benefit such as public employment sometimes make exercise of the privilege so costly that it need not be affirmatively asserted. Garrity v. New Jersey, 385 U.S. 493, 497, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967) (public employment). See also Lefkowitz v. Cunningham, 431 U.S. 801, 802-804, 97 S.Ct. 2132, 53 L.Ed.2d 1 (1977) (public office); Lefkowitz v. Turley, 414 U.S. 70, 84-85, 94 S.Ct. 316, 38 L.Ed.2d 274 (1973) (public contracts). And where assertion of the privilege would itself tend to incriminate, we have allowed witnesses to exercise the privilege through silence. See, e.g., Leary v. United States, 395 U.S. 6, 28-29, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969) (no requirement that taxpayer complete tax form where doing so would have revealed income from illegal activities); Albertson v. Subversive Activities Control Bd., 382 U.S. 70, 77-79, 86 S.Ct. 194, 15 L.Ed.2d 165 (1965) (members of the Communist Party not required to complete registration form "where response to any of the form's questions ... might involve [them] in the admission of a crucial element of a crime"). The principle that unites all of those cases is that a witness need not expressly invoke the privilege where some form of official compulsion denies him "a 'free choice to admit, to deny, or to refuse to answer.' " Garner, 424 U.S., at 656-657, 96 S.Ct. 1178 (quoting Lisenba v. California, 314 U.S. 219, 241, 62 S.Ct. 280, 86 L.Ed. 166 (1941) ).
Petitioner cannot benefit from that principle because it is undisputed that his interview with police was voluntary. As petitioner himself acknowledges, he agreed to accompany the officers to the station and "was free to leave at any time during the interview." Brief for Petitioner 2-3 (internal quotation marks omitted). That places petitioner's situation outside the scope of Miranda and other cases in which we have held that various forms of governmental coercion prevented defendants from voluntarily invoking the privilege.
The dissent elides this point when it cites our precedents in this area for the proposition that "[c]ircumstances, rather than explicit invocation, trigger the protection of the Fifth Amendment." Post, at 2189. (opinion of BREYER, J.). The critical question is whether, under the "circumstances" of this case, petitioner was deprived of the ability to voluntarily invoke the Fifth Amendment. He was not. We have before us no allegation that petitioner's failure to assert the privilege was involuntary, and it would have been a simple matter for him to say that he was not answering the officer's question on Fifth Amendment grounds. Because he failed to do so, the prosecution's use of his noncustodial silence did not violate the Fifth Amendment.
B
Petitioner urges us to adopt a third exception to the invocation requirement for cases in which a witness stands mute and thereby declines to give an answer that officials suspect would be incriminating. Our cases all but foreclose such an exception, which would needlessly burden the Government's interests in obtaining testimony and prosecuting criminal activity. We therefore decline petitioner's invitation to craft a new exception to the "general rule" that a witness must assert the privilege to subsequently benefit from it. Murphy, 465 U.S., at 429, 104 S.Ct. 1136.
Our cases establish that a defendant normally does not invoke the privilege by remaining silent. In Roberts v. United States, 445 U.S. 552, 100 S.Ct. 1358, 63 L.Ed.2d 622, for example, we rejected the Fifth Amendment claim of a defendant who remained silent throughout a police investigation and received a harsher sentence for his failure to cooperate. In so ruling, we explained that "if [the defendant] believed that his failure to cooperate was privileged, he should have said so at a time when the sentencing court could have determined whether his claim was legitimate." Id., at 560, 100 S.Ct. 1358. See also United States v. Sullivan, 274 U.S. 259, 263-264, 47 S.Ct. 607, 71 L.Ed. 1037 (1927) ;
Vajtauer, 273 U.S., at 113, 47 S.Ct. 302. A witness does not expressly invoke the privilege by standing mute.
We have also repeatedly held that the express invocation requirement applies even when an official has reason to suspect that the answer to his question would incriminate the witness. Thus, in Murphy we held that the defendant's self-incriminating answers to his probation officer were properly admitted at trial because he failed to invoke the privilege. 465 U.S., at 427-428, 104 S.Ct. 1136. In reaching that conclusion, we rejected the notion "that a witness must 'put the Government on notice by formally availing himself of the privilege' only when he alone 'is reasonably aware of the incriminating tendency of the questions.' " Id., at 428, 104 S.Ct. 1136 (quoting Roberts, supra, at 562, n. *, 100 S.Ct. 1358 (Brennan, J., concurring)). See also United States v. Kordel, 397 U.S. 1, 7, 90 S.Ct. 763, 25 L.Ed.2d 1 (1970).
Petitioner does not dispute the vitality of either of those lines of precedent but instead argues that we should adopt an exception for cases at their intersection. Thus, petitioner would have us hold that although neither a witness' silence nor official suspicions are enough to excuse the express invocation requirement, the invocation requirement does not apply where a witness is silent in the face of official suspicions. For the same reasons that neither of those factors is sufficient by itself to relieve a witness of the obligation to expressly invoke the privilege, we conclude that they do not do so together. A contrary result would do little to protect those genuinely relying on the Fifth Amendment privilege while placing a needless new burden on society's interest in the admission of evidence that is probative of a criminal defendant's guilt.
Petitioner's proposed exception would also be very difficult to reconcile with Berghuis v. Thompkins, 560 U.S. 370, 130 S.Ct. 2250, 176 L.Ed.2d 1098 (2010). There, we held in the closely related context of post-Miranda silence that a defendant failed to invoke the privilege when he refused to respond to police questioning for 2 hours and 45 minutes. 560 U.S., at ----, 130 S.Ct., at 2256-57, 2259-60. If the extended custodial silence in that case did not invoke the privilege, then surely the momentary silence in this case did not do so either.
Petitioner and the dissent attempt to distinguish Berghuis by observing that it did not concern the admissibility of the defendant's silence but instead involved the admissibility of his subsequent statements. Post, at 2181 - 2182 (opinion of BREYER, J.). But regardless of whether prosecutors seek to use silence or a confession that follows, the logic of Berghuis applies with equal force: A suspect who stands mute has not done enough to put police on notice that he is relying on his Fifth Amendment privilege.
In support of their proposed exception to the invocation requirement, petitioner and the dissent argue that reliance on the Fifth Amendment privilege is the most likely explanation for silence in a case such as this one. Reply Brief 17; see post, at 2189 - 2190 (BREYER, J., dissenting). But whatever the most probable explanation, such silence is "insolubly ambiguous." See Doyle, v. Ohio, 426 U.S. 610, 617, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). To be sure, someone might decline to answer a police officer's question in reliance on his constitutional privilege. But he also might do so because he is trying to think of a good lie, because he is embarrassed, or because he is protecting someone else. Not every such possible explanation for silence is probative of guilt, but neither is every possible explanation protected by the Fifth Amendment. Petitioner alone knew why he did not answer the officer's question, and it was therefore his "burden ... to make a timely assertion of the privilege." Garner, 424 U.S., at 655, 96 S.Ct. 1178.
At oral argument, counsel for petitioner suggested that it would be unfair to require a suspect unschooled in the particulars of legal doctrine to do anything more than remain silent in order to invoke his "right to remain silent." Tr. of Oral Arg. 26-27; see post, at 2191 (BREYER, J., dissenting); Michigan v. Tucker, 417 U.S. 433, 439, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974) (observing that "virtually every schoolboy is familiar with the concept, if not the language" of the Fifth Amendment). But popular misconceptions notwithstanding, the Fifth Amendment guarantees that no one may be "compelled in any criminal case to be a witness against himself"; it does not establish an unqualified "right to remain silent." A witness' constitutional right to refuse to answer questions depends on his reasons for doing so, and courts need to know those reasons to evaluate the merits of a Fifth Amendment claim. See Hoffman, 341 U.S., at 486-487, 71 S.Ct. 814. In any event, it is settled that forfeiture of the privilege against self-incrimination need not be knowing. Murphy, 465 U.S., at 427-428, 104 S.Ct. 1136 ; Garner, supra, at 654, n. 9, 96 S.Ct. 1178. Statements against interest are regularly admitted into evidence at criminal trials, see Fed. Rule of Evid. 804(b)(3), and there is no good reason to approach a defendant's silence any differently.
C
Finally, we are not persuaded by petitioner's arguments that applying the usual express invocation requirement where a witness is silent during a noncustodial police interview will prove unworkable in practice. Petitioner and the dissent suggest that our approach will "unleash complicated and persistent litigation" over what a suspect must say to invoke the privilege, Reply Brief 18; see post, at 2183 - 2184 (opinion of BREYER, J.), but our cases have long required that a witness assert the privilege to subsequently benefit from it. That rule has not proved difficult to apply. Nor did the potential for close cases dissuade us from adopting similar invocation requirements for suspects who wish to assert their rights and cut off police questioning during custodial interviews. Berghuis, 560 U.S., at ----, 130 S.Ct., at 2259-60 (requiring suspect to unambiguously assert privilege against self-incrimination to cut off custodial questioning); Davis v. United States, 512 U.S. 452, 459, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994) (same standard for assertions of the right to counsel).
Notably, petitioner's approach would produce its own line-drawing problems, as this case vividly illustrates. When the interviewing officer asked petitioner if his shotgun would match the shell casings found at the crime scene, petitioner did not merely remain silent; he made movements that suggested surprise and anxiety. At precisely what point such reactions transform "silence" into expressive conduct would be a difficult and recurring question that our decision allows us to avoid.
We also reject petitioner's argument that an express invocation requirement will encourage police officers to " 'unfairly "tric[k]" ' " suspects into cooperating. Reply Brief 21 (quoting South Dakota v. Neville, 459 U.S. 553, 566, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983) ). Petitioner worries that officers could unduly pressure suspects into talking by telling them that their silence could be used in a future prosecution. But as petitioner himself concedes, police officers "have done nothing wrong" when they "accurately stat[e] the law." Brief for Petitioner 32. We found no constitutional infirmity in government officials telling the defendant in Murphy that he was required to speak truthfully to his parole officer, 465 U.S., at 436-438, 104 S.Ct. 1136, and we see no greater danger in the interview tactics petitioner identifies. So long as police do not deprive a witness of the ability to voluntarily invoke the privilege, there is no Fifth Amendment violation.
* * *
Before petitioner could rely on the privilege against self-incrimination, he was required to invoke it. Because he failed to do so, the judgment of the Texas Court of Criminal Appeals is affirmed.
It is so ordered.
Justice THOMAS, with whom Justice SCALIA joins, concurring in the judgment.
We granted certiorari to decide whether the Fifth Amendment privilege against compulsory self-incrimination prohibits a prosecutor from using a defendant's pre-custodial silence as evidence of his guilt. The plurality avoids reaching that question and instead concludes that Salinas' Fifth Amendment claim fails because he did not expressly invoke the privilege. Ante, at 2178 - 2179. I think there is a simpler way to resolve this case. In my view, Salinas' claim would fail even if he had invoked the privilege because the prosecutor's comments regarding his precustodial silence did not compel him to give self-incriminating testimony.
In Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), this Court held that the Fifth Amendment prohibits a prosecutor or judge from commenting on a defendant's failure to testify. Id., at 614, 85 S.Ct. 1229. The Court reasoned that such comments, and any adverse inferences drawn from them, are a "penalty" imposed on the defendant's exercise of his Fifth Amendment privilege. Ibid. Salinas argues that we should extend Griffin 's no-adverse-inference rule to a defendant's silence during a precustodial interview. I have previously explained that the Court's decision in Griffin "lacks foundation in the Constitution's text, history, or logic" and should not be extended. See Mitchell v. United States, 526 U.S. 314, 341, 119 S.Ct. 1307, 143 L.Ed.2d 424 (1999) (dissenting opinion). I adhere to that view today.
Griffin is impossible to square with the text of the Fifth Amendment, which provides that "[n]o person ... shall be compelled in any criminal case to be a witness against himself." A defendant is not "compelled ... to be a witness against himself" simply because a jury has been told that it may draw an adverse inference from his silence. See Mitchell, supra, at 331, 119 S.Ct. 1307 (SCALIA, J., dissenting) ("[T]he threat of an adverse inference does not 'compel' anyone to testify.... Indeed, I imagine that in most instances, a guilty defendant would choose to remain silent despite the adverse inference, on the theory that it would do him less damage than his cross-examined testimony"); Carter v. Kentucky, 450 U.S. 288, 306, 101 S.Ct. 1112, 67 L.Ed.2d 241 (1981) (Powell, J., concurring) ("[N]othing in the [Self-Incrimination] Clause requires that jurors not draw logical inferences when a defendant chooses not to explain incriminating circumstances").
Nor does the history of the Fifth Amendment support Griffin . At the time of the founding, English and American courts strongly encouraged defendants to give unsworn statements and drew adverse inferences when they failed to do so. See Mitchell, supra, at 332, 119 S.Ct. 1307 (SCALIA, J., dissenting); Alschuler, A Peculiar Privilege in Historical Perspective, in The Privilege Against Self-Incrimination 204 (R. Hemholz et al. eds. 1997). Given Griffin 's indefensible foundation, I would not extend it to a defendant's silence during a precustodial interview. I agree with the plurality that Salinas' Fifth Amendment claim fails and, therefore, concur in the judgment.
Justice BREYER, with whom Justice GINSBURG, Justice SOTOMAYOR, and Justice KAGAN join, dissenting.
In my view the Fifth Amendment here prohibits the prosecution from commenting on the petitioner's silence in response to police questioning. And I dissent from the Court's contrary conclusion.
I
In January 1993, Houston police began to suspect petitioner Genovevo Salinas of having committed two murders the previous month. They asked Salinas to come to the police station "to take photographs and to clear him as [a] suspect." App. 3. At the station, police took Salinas into what he describes as "an interview room." Brief for Petitioner 3. Because he was "free to leave at that time," App. 14, they did not give him Miranda warnings. The police then asked Salinas questions. And Salinas answered until the police asked him whether the shotgun from his home "would match the shells recovered at the scene of the murder." Id., at 17. At that point Salinas fell silent. Ibid.
Salinas was later tried for, and convicted of, murder. At closing argument, drawing on testimony he had elicited earlier, the prosecutor pointed out to the jury that Salinas, during his earlier questioning at the police station, had remained silent when asked about the shotgun. The prosecutor told the jury, among other things, that " '[a]n innocent person' " would have said, " 'What are you talking about? I didn't do that. I wasn't there.' " 368 S.W.3d 550, 556 (Tex.Ct.App.2011). But Salinas, the prosecutor said, " 'didn't respond that way.' " Ibid. Rather, " '[h]e wouldn't answer that question.' " Ibid.
II
The question before us is whether the Fifth Amendment prohibits the prosecutor from eliciting and commenting upon the evidence about Salinas' silence. The plurality believes that the Amendment does not bar the evidence and comments because Salinas "did not expressly invoke the privilege against self-incrimination" when he fell silent during the questioning at the police station. Ante, at 2178. But, in my view, that conclusion is inconsistent with this Court's case law and its underlying practical rationale.
A
The Fifth Amendment prohibits prosecutors from commenting on an individual's silence where that silence amounts to an effort to avoid becoming "a witness against himself." This Court has specified that "a rule of evidence" permitting "commen[t] ... by counsel" in a criminal case upon a defendant's failure to testify "violates the Fifth Amendment." Griffin v. California, 380 U.S. 609, 610, n. 2, 613, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965) (internal quotation marks omitted). See also United States v. Patane, 542 U.S. 630, 637, 124 S.Ct. 2620, 159 L.Ed.2d 667 (2004) (plurality opinion); Turner v. United States, 396 U.S. 398, 433, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970) (Black, J., dissenting). And, since "it is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation," the "prosecution may not ... use at trial the fact that he stood mute or claimed his privilege in the face of accusation." Miranda v. Arizona, 384 U.S. 436, 468, n. 37, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) (emphasis added).
Particularly in the context of police interrogation, a contrary rule would undermine the basic protection that the Fifth Amendment provides. Cf.
Kastigar v.
United States, 406 U.S. 441, 461, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972) ("The privilege ... usually operates to allow a citizen to remain silent when asked a question requiring an incriminatory answer"). To permit a prosecutor to comment on a defendant's constitutionally protected silence would put that defendant in an impossible predicament. He must either answer the question or remain silent. If he answers the question, he may well reveal, for example, prejudicial facts, disreputable associates
Question: What is the state of the court whose decision the Supreme Court reviewed?
01. Alabama
02. Alaska
03. American Samoa
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. District of Columbia
11. Federated States of Micronesia
12. Florida
13. Georgia
14. Guam
15. Hawaii
16. Idaho
17. Illinois
18. Indiana
19. Iowa
20. Kansas
21. Kentucky
22. Louisiana
23. Maine
24. Marshall Islands
25. Maryland
26. Massachusetts
27. Michigan
28. Minnesota
29. Mississippi
30. Missouri
31. Montana
32. Nebraska
33. Nevada
34. New Hampshire
35. New Jersey
36. New Mexico
37. New York
38. North Carolina
39. North Dakota
40. Northern Mariana Islands
41. Ohio
42. Oklahoma
43. Oregon
44. Palau
45. Pennsylvania
46. Puerto Rico
47. Rhode Island
48. South Carolina
49. South Dakota
50. Tennessee
51. Texas
52. Utah
53. Vermont
54. Virgin Islands
55. Virginia
56. Washington
57. West Virginia
58. Wisconsin
59. Wyoming
60. United States
61. Interstate Compact
62. Philippines
63. Indian
64. Dakota
Answer:
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songer_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.
Genus D. ULMER, Plaintiff-Appellant, v. George CHANCELLOR, Sheriff, and Jones County Board of Supervisors, Defendants-Appellees.
No. 82-4007
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
Nov. 8, 1982.
Genus D. Ulmer, pro se.
Alpheus H. McRae, Jr., William Harold Odom, Laurel, Miss., Robert H. McFarland, Bay Springs, Miss., for defendants-appellees.
Before RUBIN, JOHNSON and GAR-WOOD, Circuit Judges.
RUBIN, Circuit Judge:
In this pro se civil rights suit, brought under 42 U.S.C. § 1983 (Supp. Ill 1979), the plaintiff, Ulmer, a former prisoner in the jail of Jones County, Mississippi, alleges that unsanitary conditions and inadequate facilities at the jail, including lack of medical treatment and facilities for exercise, deprived him of his federal constitutional rights. He seeks compensatory and punitive damages from the Sheriff of Jones County and from members of the county Board of Supervisors, together with declaratory and injunctive relief.
Ulmer’s request for appointment of counsel was denied. However, he conducted considerable discovery by interrogatories. He also submitted a motion for summary judgment, which was not acted on. In the order denying the appointment of counsel, the court gave Ulmer thirty days in which either to employ his own attorney or elect to represent himself, and stated that, if neither was done, the case would be ordered dismissed without prejudice. Thereafter, on July 14, 1981, Ulmer filed a motion to subpoena his witnesses, most of whom were in the Mississippi State Penitentiary at Parchman. He further moved to have all necessary writs of habeas corpus ad testificandum issue for those witnesses in Mississippi state custody. We do not find in the record any order fixing the case for trial or any order or other document notifying Ulmer to appear for trial.
Nonetheless, on August 25, 1981, the district court entered a Judgment of Dismissal stating:
THIS CAUSE came on for hearing this date, it being the day when the same was set for trial.
The court finds that the Plaintiff was duly notified that the cause was set for trial this day and upon the cause being called the Plaintiff did not appear either in person or by counsel whereupon the Court ordered the Plaintiff called and the Plaintiff failed to respond.
All of the defendants were present in person, represented by counsel, and announced ready for trial.
The Court finds that because of the default of the Plaintiff in appearing and prosecuting this case, that the same should be dismissed with prejudice.
(Emphasis supplied.) Ulmer then moved to “reconsider,” on the ground that no court order had issued for him to be transported from the penitentiary to court. The motion was denied by the district court, which ruled as follows:
A prisoner at Parchman has the same right to litigate in this Court as any other litigant. This Court declined to appoint an attorney to represent him for the reason that this cause has already been acted upon by the State Court which has the same responsibility for protecting the constitutional rights of all litigants. The Court does not have the duty or responsibility to look after or protect any such litigant in this court but simply has the duty and responsibility to see that he gets a fair and impartial trial. The defendant here made no request of any kind for any assistance from the Court and the Court gave him none.
A litigant in Parchman does not have any superior right over any other litigant in this Court but simply considered [s/c] here like all other litigants and is charged with the duty and responsibility of attending to his business or to have someone other than the Court do so for him. The plaintiff was promptly and properly advised of the setting of this case for trial but he made no answer or response to the setting and the defendants appeared in person and by counsel and demanded a dismissal which was granted. The motion of the plaintiff for a reconsideration of this case is devoid of any merit and is denied.
The plaintiff requested the right of an appeal as a pauper before the United States Court of Appeals but this Court has examined the record in this case and is of the firm opinion that there is no question of any importance or significance to be heard by the Court of Appeals and I am sure that the Court of Appeals does not need any unnecessary avalanche of such cases presented to them. The request for an appeal as a pauper is likewise denied.
(Emphasis supplied.) The record contains no motion for dismissal. If an oral motion for dismissal was made, no transcript of it was filed in the record.
Because Ulmer did make a timely request that writs of habeas corpus ad testificandum issue for the witnesses in Parehman, and there is nothing in the record to indicate that the writs did in fact issue, or that his request for the writs was even evaluated by the district court, the dismissal is reversed. See Itel Capital Corp. v. Dennis Mining Supply & Equip., Inc., 651 F.2d 405, 407-08 (5th Cir. 1981); Ballard v. Spradley, 557 F.2d 476, 479-81 (5th Cir. 1977); Jerry v. Francisco, 632 F.2d 252, 255-56 (3d Cir. 1980) (per curiam); Peppard v. United States, 314 F.2d 623, 625 (8th Cir. 1963) (per curiam). Accord, McKnight v. Blanchard, 667 F.2d 477, 480 n.2 (5th Cir. 1982) (dictum).
The case is remanded to the district court for such further proceedings as may be appropriate. We express no opinion whatever on the merits of the case except to note that, on its face, the complaint insofar as it seeks damages does not appear to be frivolous. For example, Ulmer alleges that he was denied exercise for seven months “to the point of being cripple [sic] from not exercising and having no room to move around in.” See Montana v. Commissioners Court, 659 F.2d 19, 22 (5th Cir. 1981) (per curiam), cert. denied, 455 U.S. 1026, 102 S.Ct. 1730, 72 L.Ed.2d 147 (1982); McGruder v. Phelps, 608 F.2d 1023, 1025 (5th Cir. 1979) (citing cases).
In view of the fact that Ulmer currently is, and was at the time he filed this action, incarcerated in the State Penitentiary, not in the Jones County Jail, and he has not brought a class action, the petition for injunctive or declaratory relief may be moot, see Mitchum v. Purvis, 650 F.2d 647, 648 (5th Cir. 1981) (per curiam); Marden v. Int’l Ass’n of Machinists & Aerospace Workers, 576 F.2d 576, 581-82 (5th Cir. 1978); Scott v. Jones, 492 F.2d 130 (5th Cir. 1974) (per curiam); Rhodes v. Bureau of Prisons, 477 F.2d 347 (5th Cir. 1973) (per curiam); Weaver v. Wilcox, 650 F.2d 22, 27 & n.13 (3d Cir. 1981), and nothing in this opinion prevents the disposition of some or all of the issues raised by the complaint on proper motion, duly noticed. However, the court shall accord this plaintiff the same notices and the same rights as other litigants. If his appearance in court is necessary to enable him to assert his interests and to protect his rights, an appropriate order for him to appear, by writ of habeas corpus ad testificandum, shall be issued.
Ulmer challenges the refusal of the district court to appoint counsel for him. A civil rights complainant has no right to the automatic appointment of counsel. Branch v. Cole, 686 F.2d 264 (5th Cir. 1982) (per curiam); Wright v. Dallas County Sheriffs Department, 660 F.2d 623, 625-26 (5th Cir. 1981). The trial court is not required to appoint counsel for an indigent plaintiff asserting a claim under 42 U.S.C. § 1983 (Supp. Ill 1979) unless the case presents exceptional circumstances. Branch v. Cole, supra, 686 F.2d at 266.
The magistrate refused to appoint counsel for Ulmer because “it is doubtful that any relief may be granted, ... this is a fee producing case, if successful, and ... it would be oppressive to appoint involuntary counsel, and ... the petitioner has made no showing that he is unable to secure private counsel.” While Ulmer prays for the award of substantial damages, it is not so obvious to us as it was to the magistrate that counsel can readily be found to handle the case on a contingent fee basis for a person incarcerated at a place distant from the place of trial. Nor is it clear that all counsel would consider an appointment in this case “oppressive.” Public spirited lawyers often accept pro bono cases that they would decline to handle purely as fee producing matters, just as lawyers have done for centuries past. See Branch v. Cole, supra, 686 F.2d at 267, Ray v. Robinson, 640 F.2d 474, 478-79 (3d Cir. 1981). A lawyer should not be conscripted into a § 1983 case simply because he is a member of the bar, but this does not mean that all members of the bar should be denied the opportunity to assist the cause of justice under the authority of a court appointment. At any rate, it is not appropriate to presume that all the members of the bar would feel imposed upon even if, or perhaps especially if, relief is doubtful.
The district court may, therefore, appropriately require Ulmer to respond directly to an inquiry concerning what effort, if any, he has made to secure private counsel. Exercising its own judicial discretion, it should then determine whether this is an exceptional case in which the appointment of counsel is appropriate.
A federal court has discretion to appoint counsel if doing so would advance the proper administration of justice. 28 U.S.C. § 1915(d) (1976). Although “[n]o comprehensive definition of exceptional circumstances is practical,” Branch v. Cole, supra, 686 F.2d at 266, a number of factors should be considered in ruling on requests for appointed counsel. These include: (1) the type and complexity of the case, Branch v. Cole, supra, 686 F.2d at 266; Maclin v. Freake, 650 F.2d 885, 888 (7th Cir. 1981); (2) whether the indigent is capable of adequately presenting his case, Branch v. Cole, supra, 686 F.2d at 266; Maclin v. Freake, supra, 650 F.2d at 888; Drone v. Hutto, 565 F.2d 543, 544 (8th Cir. 1977); (3) whether the indigent is in a position to investigate adequately the case, Maclin v. Freake, supra, 650 F.2d at 888; White v. Walsh, 649 F.2d 560, 563 (8th Cir. 1981); Shields v. Jackson, 570 F.2d 284, 285-86 (8th Cir. 1978) (per curiam); Peterson v. Nadler, 452 F.2d 754 (5th Cir. 1971); and (4) whether the evidence will consist in large part of conflicting testimony so as to require skill in the presentation of evidence and in cross examination, Maclin v. Freake, supra, 650 F.2d at 888; Manning v. Lockhart, 623 F.2d 536, 540 (8th Cir. 1980).
The district court should also consider whether the appointment of counsel would be a service to Ulmer and, perhaps, the court and defendant as well, by sharpening the issues in the case, shaping the examination of witnesses, and thus shortening the trial and assisting in a just determination. See Knighton v. Watkins, 616 F.2d 795, 799 (5th Cir. 1980).
For these reasons, the judgment of dismissal is REVERSED and the case is REMANDED for further proceedings consistent with this opinion.
. It is not entirely clear that Ulmer is still seeking damages. Although his original complaint stated that he sought compensatory and punitive damages, he subsequently filed an amended complaint that did not include such a prayer. In his “Motion to Amend Complaint,” however, Ulmer indicates that the amendment was intended only to allege additional mistreatment. Because these pleadings were drafted by a pro se prisoner, not a lawyer, we construe them liberally. Hogan v. Midland County Commissioners Court, 680 F.2d 1101, 1103 (5th Cir. 1982) (per curiam). We, therefore, assume that Ulmer still seeks damages.
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_petitioner
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029
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the petitioner of the case. The petitioner is the party who petitioned the Supreme Court to review the case. This party is variously known as the petitioner or the appellant. Characterize the petitioner as the Court's opinion identifies them.
Identify the petitioner by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer.
Also note that the Court's characterization of the parties applies whether the petitioner is actually single entity or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single petitioner, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name.
DOUGLAS v. ALABAMA.
No. 313.
Argued March 9-10, 1965.
Decided April 5, 1965.
Charles Cleveland argued the cause for petitioner. With him on the brief were Bryan A. Chancey and Robert 8. Gordon.
Paul T. Gish, Jr., Assistant Attorney General of Alabama, argued the cause for respondent. With him on the brief was Richmond M. Flowers, Attorney General of Alabama.
MR. Justice Brennan
delivered the opinion of the Court.
The petitioner and one Loyd were tried separately in Alabama’s Circuit Court on charges of assault with intent to murder. Loyd was tried first and was found guilty. The State then called Loyd as a witness at petitioner’s trial. Because Loyd planned to appeal his conviction, his lawyer, who also represented petitioner, advised Loyd to rely on the privilege against self-incrimination and not to answer any questions. When Loyd was sworn, the lawyer objected, on self-incrimination grounds, “to this witness appearing on the stand,” but the objection was overruled. Loyd gave his name and address but, invoking the privilege, refused to answer any questions concerning the alleged crime. The trial judge ruled that Loyd could not rely on the privilege because of his conviction, and ordered him to answer, but Loyd persisted in his refusal. The judge thereupon granted the State Solicitor’s motion “to declare [Loyd] a hostile witness and give me the privilege of cross-examination.” The Solicitor then produced a document said to be a confession signed by Loyd. Under the guise of cross-examination to refresh Loyd’s recollection, the Solicitor purported to read from the document, pausing after every few sentences to ask Loyd, in the presence of the jury, “Did you make that statement?” Each time, Loyd asserted the privilege and refused to answer, but the Solicitor continued this form of questioning until the entire document had been read. The Solicitor then called three law enforcement officers who identified the document as embodying a confession made and signed by Loyd. Although marked as an exhibit for identification, the document was not offered in evidence.
This procedure, petitioner argues, violated his rights under the Confrontation Clause of the Sixth Amendment as applied to the States. The statements from the document as read by the Solicitor recited in considerable detail the circumstances leading to and surrounding the alleged crime; of crucial importance, they named the petitioner as the person who fired the shotgun blast which wounded the victim. The jury found petitioner guilty. The Court of Appeals of Alabama affirmed, 42 Ala. App. 314,163 So. 2d 477. Although stating that Loyd’s alleged confession was inadmissible in evidence against petitioner under state law because “[tjhere must be confrontation face to face to allow viva voce cross-examination before the jury,” and noting that “it might be claimed that the repeated and cumulative use of the confession might have been an indirect mode of getting the inadmissible confession in evidence,” the Court of Appeals affirmed petitioner’s conviction on the ground that petitioner’s counsel had “stopped objecting" and that in that circumstance, “the failure to object was waiver.” 42 Ala. App., at 329, 332, 163 So. 2d, at 493, 495. The Supreme Court of Alabama denied review, 276 Ala. 703, 163 So. 2d 496. We granted certiorari, 379 U. S. 815. We reverse.
I.
We decide today that the Confrontation Clause of the Sixth Amendment is applicable to the States. Pointer v. Texas, ante, p. 400. Our cases construing the clause hold that a primary interest secured by it is the right of cross-examination; an adequate opportunity for cross-examination may satisfy the clause even in the absence of physical confrontation. As the Court said in Mattox v. United States,
“The primary object of the constitutional provision in question was to prevent depositions or ex parte affidavits . . . being used against the prisoner in lieu of a personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.” 156 U. S. 237, 242-243.
See also 5 Wigmore, Evidence §§ 1365, 1397 (3d ed. 1940); State v. Hester, 137 S. C. 145, 189, 134 S. E. 885, 900 (1926).
In the circumstances of this case, petitioner’s inability to cross-examine Loyd as to the alleged confession plainly denied him the right of cross-examination secured by the Confrontation Clause. Loyd’s alleged statement that the petitioner fired the shotgun constituted the only direct evidence that he had done so; coupled with the description of the circumstances surrounding the shooting, this formed a crucial link in the proof both of petitioner’s act and of the requisite intent to murder. Although the Solicitor’s reading of Loyd’s alleged statement, and Loyd’s refusals to answer, were not technically testimony, the Solicitor’s reading may well have been the equivalent in the jury’s mind of testimony that Loyd in fact made the statement; and Loyd’s reliance upon the privilege created a situation in which the jury might improperly infer both that the statement had been made and that it was true. Slochower v. Board of Higher Education, 350 U. S. 551, 557-558; United States v. Maloney, 262 F. 2d 535, 537 (C. A. 2d Cir. 1959). Since the Solicitor was not a witness, the inference from his reading that Loyd made the statement could not be tested by cross-examination. Similarly, Loyd could not be cross-examined on a statement imputed to but not admitted by him. Nor was the opportunity to cross-examine the law enforcement officers adequate to redress this denial of the essential right secured by the Confrontation Clause. Indeed, their testimony enhanced the danger that the jury would treat the Solicitor’s questioning of Loyd and Loyd’s refusal to answer as proving the truth of Loyd’s alleged confession. But since their evidence tended to show only that Loyd made the confession, cross-examination of them as to its genuineness could not substitute for cross-examination of Loyd to test the truth of the statement itself. Motes v. United States, 178 U. S. 458; cf. Kirby v. United States, 174 U. S. 47.
Hence, effective confrontation of Loyd was possible only if Loyd affirmed the statement as his. However, Loyd did not do so, but relied on his privilege to refuse to answer. We need not decide whether Loyd properly invoked the privilege in light of his conviction. It is sufficient for the purposes of deciding petitioner’s claim under the Confrontation Clause that no suggestion is made that Loyd’s refusal to answer was procured by the petitioner, see Motes v. United States, supra, at 471; on this record it appears that Loyd was acting entirely in his own interests in doing so. This case cannot be characterized as one where the prejudice in the denial of the right of cross-examination constituted a mere minor lapse. The alleged statements clearly bore on a fundamental part of the State’s case against petitioner. The circumstances are therefore such that “inferences from a witness’ refusal to answer added critical weight to the prosecution’s case in a form not subject to cross-examination, and thus unfairly prejudiced the defendant.” Namet v. United States, 373 U. S. 179, 187. See also Fletcher v. United States, 118 U. S. App. D. C. 137, 332 F. 2d 724 (1964).
II.
We cannot agree with the Alabama Court of Appeals that petitioner’s counsel waived the right to confrontation through failure to make sufficient objection to the reading of Loyd’s alleged confession. The court stated: “There must be a ruling sought and acted on before the trial judge can be put in error. Here there was no ruling asked or invoked as to the questions embracing the alleged confession.” 42 Ala. App., at 332, 163 So. 2d, at 495. Yet, as the colloquy set out in the margin shows, petitioner’s counsel did object three times to the reading of the confession before the jury. After the second time, the Solicitor assured him that he already had an objection in— plainly implying that further objection to the reading of the document was unnecessary. The ground for objection to later questions would have been the same, that the confession was being read to the jury. In light of this record it is difficult to understand the Court of Appeals’ conclusion; nevertheless, accepting the finding as an authoritative interpretation of Alabama law, we follow our consistent holdings that the adequacy of state procedural bars to the assertion of federal questions is itself a federal question. See Wright v. Georgia, 373 U. S. 284, 289-291. In determining the sufficiency of objections we have applied the general principle that an objection which is ample and timely to bring the alleged federal error to the attention of the trial court and enable it to take appropriate corrective action is sufficient to serve legitimate state interests, and therefore sufficient to preserve the claim for review here. Davis v. Wechsler, 263 U. S. 22, 24; Love v. Griffith, 266 U. S. 32, 33-34. No legitimate state interest would have been served by requiring repetition of a patently futile objection, already thrice rejected, in a situation in which repeated objection might well affront the court or prejudice the jury beyond repair. Too, after the confession was read, the defense moved to exclude it; it then moved for a mistrial and for a new trial; all three motions were denied. After two of the three law enforcement officers had testified, the defense renewed its objections to the hearsay references in Loyd’s alleged confession and again was overruled. On these facts, it is clear that the defense brought the objection to the attention of the court at several points, at any of which corrective action could have been taken by stopping the questioning, excusing the jury, or excluding the evidence. To the extent that the Alabama rule requires objection after each and every question in this prolonged series, it is plainly inadequate to bar our review of the federal question presented.
Reversed and remanded.
Loyd had not been sentenced at the time of petitioner’s trial. The trial judge initially threatened to hold Loyd in contempt for persisting in his refusal to answer after the judge had ruled that Loyd could not rely on the privilege since “the jury has already determined your guilt.” However, the judge did not proceed with the contempt citation but interrupted petitioner’s trial to sentence Loyd to 20 years’ imprisonment.
There were 21 questions occupying seven pages in the printed record.
Two of the Solicitor’s questions were as follows:
“Did you make the further statement, ‘We intended to shoot these trucks before they got to Centreville, but when we turned and went back north and passed the trucks again I was unable to bring myself to the point of shooting the trucks. After we passed the trucks this time we turned around and went south again toward Centreville, Alabama. These trucks were both stopped at a truck stop in Centre-ville where we passed them again and we proceeded on south on No. 5 about twenty miles. We sat alongside of the highway waiting for the trucks to come on and several trucks passed us, so we thought we ought to move before someone recognized us. We went back north again and saw a station wagon that looked suspicious so we turned off No. 5 onto 16. We drove over this route about six or eight miles and pulled in behind a church. We sat there for about, five minutes and then heard what sounded like two trucks together going south on No. 5. We thought this was the two trucks and we went back to No. 5. When we got to No. 5 I told Douglas that I would drive and he said that was fine because 1 knew the car better than he. I drove on until we caught these trucks about five or eight miles above the junction of No. 5 and No. 80 and we passed them proceeding on to the junction where we turned around and headed back north to meet these trucks. Jesse Douglas was in the back seat with the automatic shotgun that belongs to B. F. Jackson and had it loaded with buckshot. He rolled down the window and when we passed these trucks he shot the lead truck as we passed them heading back north as they were coming south. We then went on to Highway 14, turned left and went into Greensboro, Alabama. We turned left in Greensboro on No. 69, drove south about five miles and realized we were going the wrong direction to go to Tuscaloosa, Alabama. We turned around and went back up to No. 69 to Tuscaloosa.’ Did you make that statement?”
“Were you asked the question, ‘How many shots were fired at the truck?’ And your answer, ‘Only one.’ Did you say that?”
The following occurred:
“Q. Is that your signature (showing witness signature on confession) ?
“A. I’m not sure.
“Q. I will ask you if on January 20, 1962—
“Mr. Esco: (Interrupting) If your Honor please, I object to the reading of any document or purported confession,—
“Mr. McLeod: (Interrupting) This is cross-examination.
“The Court: Hostile witness. Overrule.
“Mr. Esco: We except, if you please.
“Q. I will ask you if on the night of January 20, 1962, in Selma, Alabama, in the Dallas County jail if you didn’t make the following statement: (reading) T, Olen Ray Loyd, make the — ’
“Mr. Esco: (Interrupting) I object to this being read in the presence of the jury.
“Mr. McLeod: You’ve already got an objection in there.
“Mr. Esco: I object to this being read in the presence of the jury.
“The Court: Overrule.
“Mr. Esco: We except.”
After the questions w'ere read, defense counsel renewed his objections:
“Mr. Esco: I’d first like to object to the reading of this purported confession on the grounds that it is hearsay evidence, that it was made outside the hearing of this defendant, it was not subject to cross-examination, and we move to exclude it from the evidence.
“The Court: The Court will deny your motion.
“Mr. Esco: We except, if you please. And at this time, your Honor, we make a motion for a mistrial on the grounds that this jury has been so prejudiced from these proceedings, and from the attempts of the prosecution to use illegal evidence, that no fair and just verdict whatsoever could come from a jury that has been so prejudiced.
“The Court: Motion is denied.
“Mr. Esco: We except, if you please.
“Mr. Esco: We would like to make a motion for a new on the grounds that the proceedings have been very irregular here today and we feel that it has been prejudicial to this defendant.
"The Court: . . . Your objection is overruled.
“Mr. Esco: It is a motion, your Honor.
“The Court: Your motion is overruled.
“Mr. Esco: We except, if you please.”
Question: Who is the petitioner of the case?
001. attorney general of the United States, or his office
002. specified state board or department of education
003. city, town, township, village, or borough government or governmental unit
004. state commission, board, committee, or authority
005. county government or county governmental unit, except school district
006. court or judicial district
007. state department or agency
008. governmental employee or job applicant
009. female governmental employee or job applicant
010. minority governmental employee or job applicant
011. minority female governmental employee or job applicant
012. not listed among agencies in the first Administrative Action variable
013. retired or former governmental employee
014. U.S. House of Representatives
015. interstate compact
016. judge
017. state legislature, house, or committee
018. local governmental unit other than a county, city, town, township, village, or borough
019. governmental official, or an official of an agency established under an interstate compact
020. state or U.S. supreme court
021. local school district or board of education
022. U.S. Senate
023. U.S. senator
024. foreign nation or instrumentality
025. state or local governmental taxpayer, or executor of the estate of
026. state college or university
027. United States
028. State
029. person accused, indicted, or suspected of crime
030. advertising business or agency
031. agent, fiduciary, trustee, or executor
032. airplane manufacturer, or manufacturer of parts of airplanes
033. airline
034. distributor, importer, or exporter of alcoholic beverages
035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked
036. American Medical Association
037. National Railroad Passenger Corp.
038. amusement establishment, or recreational facility
039. arrested person, or pretrial detainee
040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association
041. author, copyright holder
042. bank, savings and loan, credit union, investment company
043. bankrupt person or business, or business in reorganization
044. establishment serving liquor by the glass, or package liquor store
045. water transportation, stevedore
046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines
047. brewery, distillery
048. broker, stock exchange, investment or securities firm
049. construction industry
050. bus or motorized passenger transportation vehicle
051. business, corporation
052. buyer, purchaser
053. cable TV
054. car dealer
055. person convicted of crime
056. tangible property, other than real estate, including contraband
057. chemical company
058. child, children, including adopted or illegitimate
059. religious organization, institution, or person
060. private club or facility
061. coal company or coal mine operator
062. computer business or manufacturer, hardware or software
063. consumer, consumer organization
064. creditor, including institution appearing as such; e.g., a finance company
065. person allegedly criminally insane or mentally incompetent to stand trial
066. defendant
067. debtor
068. real estate developer
069. disabled person or disability benefit claimant
070. distributor
071. person subject to selective service, including conscientious objector
072. drug manufacturer
073. druggist, pharmacist, pharmacy
074. employee, or job applicant, including beneficiaries of
075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan
076. electric equipment manufacturer
077. electric or hydroelectric power utility, power cooperative, or gas and electric company
078. eleemosynary institution or person
079. environmental organization
080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer.
081. farmer, farm worker, or farm organization
082. father
083. female employee or job applicant
084. female
085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of
086. fisherman or fishing company
087. food, meat packing, or processing company, stockyard
088. foreign (non-American) nongovernmental entity
089. franchiser
090. franchisee
091. lesbian, gay, bisexual, transexual person or organization
092. person who guarantees another's obligations
093. handicapped individual, or organization of devoted to
094. health organization or person, nursing home, medical clinic or laboratory, chiropractor
095. heir, or beneficiary, or person so claiming to be
096. hospital, medical center
097. husband, or ex-husband
098. involuntarily committed mental patient
099. Indian, including Indian tribe or nation
100. insurance company, or surety
101. inventor, patent assigner, trademark owner or holder
102. investor
103. injured person or legal entity, nonphysically and non-employment related
104. juvenile
105. government contractor
106. holder of a license or permit, or applicant therefor
107. magazine
108. male
109. medical or Medicaid claimant
110. medical supply or manufacturing co.
111. racial or ethnic minority employee or job applicant
112. minority female employee or job applicant
113. manufacturer
114. management, executive officer, or director, of business entity
115. military personnel, or dependent of, including reservist
116. mining company or miner, excluding coal, oil, or pipeline company
117. mother
118. auto manufacturer
119. newspaper, newsletter, journal of opinion, news service
120. radio and television network, except cable tv
121. nonprofit organization or business
122. nonresident
123. nuclear power plant or facility
124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels
125. shareholders to whom a tender offer is made
126. tender offer
127. oil company, or natural gas producer
128. elderly person, or organization dedicated to the elderly
129. out of state noncriminal defendant
130. political action committee
131. parent or parents
132. parking lot or service
133. patient of a health professional
134. telephone, telecommunications, or telegraph company
135. physician, MD or DO, dentist, or medical society
136. public interest organization
137. physically injured person, including wrongful death, who is not an employee
138. pipe line company
139. package, luggage, container
140. political candidate, activist, committee, party, party member, organization, or elected official
141. indigent, needy, welfare recipient
142. indigent defendant
143. private person
144. prisoner, inmate of penal institution
145. professional organization, business, or person
146. probationer, or parolee
147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer
148. public utility
149. publisher, publishing company
150. radio station
151. racial or ethnic minority
152. person or organization protesting racial or ethnic segregation or discrimination
153. racial or ethnic minority student or applicant for admission to an educational institution
154. realtor
155. journalist, columnist, member of the news media
156. resident
157. restaurant, food vendor
158. retarded person, or mental incompetent
159. retired or former employee
160. railroad
161. private school, college, or university
162. seller or vendor
163. shipper, including importer and exporter
164. shopping center, mall
165. spouse, or former spouse
166. stockholder, shareholder, or bondholder
167. retail business or outlet
168. student, or applicant for admission to an educational institution
169. taxpayer or executor of taxpayer's estate, federal only
170. tenant or lessee
171. theater, studio
172. forest products, lumber, or logging company
173. person traveling or wishing to travel abroad, or overseas travel agent
174. trucking company, or motor carrier
175. television station
176. union member
177. unemployed person or unemployment compensation applicant or claimant
178. union, labor organization, or official of
179. veteran
180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL)
181. wholesale trade
182. wife, or ex-wife
183. witness, or person under subpoena
184. network
185. slave
186. slave-owner
187. bank of the united states
188. timber company
189. u.s. job applicants or employees
190. Army and Air Force Exchange Service
191. Atomic Energy Commission
192. Secretary or administrative unit or personnel of the U.S. Air Force
193. Department or Secretary of Agriculture
194. Alien Property Custodian
195. Secretary or administrative unit or personnel of the U.S. Army
196. Board of Immigration Appeals
197. Bureau of Indian Affairs
198. Bonneville Power Administration
199. Benefits Review Board
200. Civil Aeronautics Board
201. Bureau of the Census
202. Central Intelligence Agency
203. Commodity Futures Trading Commission
204. Department or Secretary of Commerce
205. Comptroller of Currency
206. Consumer Product Safety Commission
207. Civil Rights Commission
208. Civil Service Commission, U.S.
209. Customs Service or Commissioner of Customs
210. Defense Base Closure and REalignment Commission
211. Drug Enforcement Agency
212. Department or Secretary of Defense (and Department or Secretary of War)
213. Department or Secretary of Energy
214. Department or Secretary of the Interior
215. Department of Justice or Attorney General
216. Department or Secretary of State
217. Department or Secretary of Transportation
218. Department or Secretary of Education
219. U.S. Employees' Compensation Commission, or Commissioner
220. Equal Employment Opportunity Commission
221. Environmental Protection Agency or Administrator
222. Federal Aviation Agency or Administration
223. Federal Bureau of Investigation or Director
224. Federal Bureau of Prisons
225. Farm Credit Administration
226. Federal Communications Commission (including a predecessor, Federal Radio Commission)
227. Federal Credit Union Administration
228. Food and Drug Administration
229. Federal Deposit Insurance Corporation
230. Federal Energy Administration
231. Federal Election Commission
232. Federal Energy Regulatory Commission
233. Federal Housing Administration
234. Federal Home Loan Bank Board
235. Federal Labor Relations Authority
236. Federal Maritime Board
237. Federal Maritime Commission
238. Farmers Home Administration
239. Federal Parole Board
240. Federal Power Commission
241. Federal Railroad Administration
242. Federal Reserve Board of Governors
243. Federal Reserve System
244. Federal Savings and Loan Insurance Corporation
245. Federal Trade Commission
246. Federal Works Administration, or Administrator
247. General Accounting Office
248. Comptroller General
249. General Services Administration
250. Department or Secretary of Health, Education and Welfare
251. Department or Secretary of Health and Human Services
252. Department or Secretary of Housing and Urban Development
253. Interstate Commerce Commission
254. Indian Claims Commission
255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement
256. Internal Revenue Service, Collector, Commissioner, or District Director of
257. Information Security Oversight Office
258. Department or Secretary of Labor
259. Loyalty Review Board
260. Legal Services Corporation
261. Merit Systems Protection Board
262. Multistate Tax Commission
263. National Aeronautics and Space Administration
264. Secretary or administrative unit of the U.S. Navy
265. National Credit Union Administration
266. National Endowment for the Arts
267. National Enforcement Commission
268. National Highway Traffic Safety Administration
269. National Labor Relations Board, or regional office or officer
270. National Mediation Board
271. National Railroad Adjustment Board
272. Nuclear Regulatory Commission
273. National Security Agency
274. Office of Economic Opportunity
275. Office of Management and Budget
276. Office of Price Administration, or Price Administrator
277. Office of Personnel Management
278. Occupational Safety and Health Administration
279. Occupational Safety and Health Review Commission
280. Office of Workers' Compensation Programs
281. Patent Office, or Commissioner of, or Board of Appeals of
282. Pay Board (established under the Economic Stabilization Act of 1970)
283. Pension Benefit Guaranty Corporation
284. U.S. Public Health Service
285. Postal Rate Commission
286. Provider Reimbursement Review Board
287. Renegotiation Board
288. Railroad Adjustment Board
289. Railroad Retirement Board
290. Subversive Activities Control Board
291. Small Business Administration
292. Securities and Exchange Commission
293. Social Security Administration or Commissioner
294. Selective Service System
295. Department or Secretary of the Treasury
296. Tennessee Valley Authority
297. United States Forest Service
298. United States Parole Commission
299. Postal Service and Post Office, or Postmaster General, or Postmaster
300. United States Sentencing Commission
301. Veterans' Administration
302. War Production Board
303. Wage Stabilization Board
304. General Land Office of Commissioners
305. Transportation Security Administration
306. Surface Transportation Board
307. U.S. Shipping Board Emergency Fleet Corp.
308. Reconstruction Finance Corp.
309. Department or Secretary of Homeland Security
310. Unidentifiable
311. International Entity
Answer:
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songer_initiate
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B
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What follows is an opinion from a United States Court of Appeals. Your task is to identify 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.
RICHARDSON v. UNITED STATES.
No. 10864.
Circuit Court of Appeals, Fifth Circuit.
Dec. 1, 1944.
W. L. Longshore, of Birmingham, Ala., for appellant.
Jim C. Smith, U. S. Atty., of Birming-' ham, Ala., for appellee.
Before SIBLEY, McCORD, and LEE, Circuit Judges.
McCORD, Circuit Judge.
Under Section 3321 of the Internal Revenue Code, Title 26 U.S.C.A., this condemnation proceeding was filed on March 18, 1943, seeking the forfeiture of one 1941 Buick Sedan automobile.
The Government charged that the automobile in question was “used on February 16, 1943, and prior thereto, in the removal, deposit and concealment of syrups and shorts, which were intended and were used in the production of distilled spirits, on which the tax imposed by the laws of the United States had not been paid, and the same was not to be paid, with intent to defraud the United States of the tax on the distilled spirits produced and intended to be produced.”
On the hearing, the court, without the intervention of a jury, found that the automobile had been used in transporting syrups and shorts which were intended to be used in the production of untaxed distilled spirits. Thereupon the court ordered that the automobile in question be condemned and forfeited and turned over to the “Investigator in Charge of the Alcohol Tax Unit, Bureau of Internal Revenue, Treasury Department, at Birmingham, Alabama, the above described automobile, its equipment and accessories, for the official use of said Alcohol Tax Unit and Treasury Department of the United States.” From this judgment and decree, Benton Richardson, the claimant, has appealed.
The evidence disclosed that the claimant, Benton Richardson, and another were apprehended while building a fire under an old drum or pot to heat mash to make prohibited liquors, near the home of Richardson; that he had been apprehended once before for being found at a still, which occurred three or four years before this arrest, and about the year 1939; that he was regarded by some of the officers as a violator of the liquor laws. For the past two or three years it was shown that he worked regularly as a miner in the coal mines and used the car in question on week ends to haul passengers; that those who knew him best gave him a good name and testified that they had never heard of his being engaged in selling or manufacturing illicit whiskey. The evidence further showed that the sugar found at the still was not carried there in the car in question; that Richardson owned five hogs and that he bought a sack of shorts every two weeks with which to feed them; that the can of syrup, being four or five gallons, was bought by Richardson several months before his apprehension and arrest at the still, and that after using one gallon of the syrup it turned sour and was put away in the garage; that Richardson and his wife both testified that the car had never been used to haul or transport shorts, sugar or syrup with which to manufacture illicit whiskey; that when Richardson and his helper were found at the still the car was at his house; that the agreement to make whiskey had only been entered into a few days before his arrest and that they were arrested before any whiskey was made or had been made or the still connected up; that the purpose of the fire was to warm the mash. The boss or foreman testified that Richardson worked regularly at the coal mines from August 1942 to the time of his arrest; that during all this time he worked practically every day and missed only one regular shift from his work; that his reputation in the community was good; that he had never heard of his being in the whiskey business; that he had been to his house and knew that he kept hogs.
The Buick automobile was never seen by any one at or near the still, and no witness testified that he had ever seen or heard of the automobile being used to transport material to be used in the manufacture of distilled spirits. Moreover, only about one peck of shorts is alleged to have been used at the still, and it is without dispute that for a long period of time Richardson had been hauling shorts to feed his hogs; that the syrup had been bought eight months before the arrest of Richardson and that the last sack of shorts was bought about two weeks before his arrest; and the agreement to make the whiskey had only been consummated a few days before the arrest. Richardson and his helper were turned over to the state authorities for prosecution in the state court, while the automobile in question was seized by the Federal authorities for condemnation.
The verdict of a jury or that of a trial judge sitting as a jury will not be disturbed or overturned if supported by substantial evidence. Keystone Motor Freight Lines v. Brannon-Signaigo Cigar Co., 5 Cir., 115 F.2d 736; Texarkana Bus Co. v. Baker, 5 Cir., 142 F.2d 491; Sapp v. Gardner, 9 Cir., 143 F.2d 423.
There is no substantial evidence upon which to predicate a judgment of condemnation. To condemn this car we must do so on suspicion and speculation. This we are not willing to do.
The judgment and decree of the court condemning and forfeiting the Buick Sedan automobile, Motor #33431147 to the Government for use of the Alcohol Tax Unit is reversed and remanded with direction that the automobile with all equipment and accessories be forthwith delivered to the claimant, Benton Richardson.
Reversed and remanded with directions.
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:
|
sc_respondent
|
075
|
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.
KENNEDY, executrix of the ESTATE OF KENNEDY, DECEASED v. PLAN ADMINISTRATOR FOR DuPONT SAVINGS AND INVESTMENT PLAN et al.
No. 07-636.
Argued October 7, 2008
Decided January 26, 2009
Souter, J., delivered the opinion for a unanimous Court.
David A. Furlow argued the cause for petitioner. With him on the briefs were Kevin Pennell and Stacy L. Kelly.
Mark I. Levy argued the cause for respondents. With him on the brief were Adam H. Chames, John M. Vine, Seth J. Safra, Theodore P. Metzler, Raymond Michael Ripple, and Donna L. Goodman.
Leondra R. Kruger argued the cause for the United States as amicus curiae urging affirmance. With her on the brief were former Solicitor General Clement, Assistant Attorney General Hochman, Deputy Solicitor General Kneedler, Robert F. Hoyt, Donald L. Korb, Nathaniel 1. Spiller, and Edward D. Sieger.
Briefs of amici curiae urging affirmance were filed for AARP by Mary Ellen Signorille and Melvin R. Radowitz; for the American Benefits Council et al. by Kent A. Mason; and for the Western Conference of Teamsters Pension Trust Fund by R. Bradford Huss.
Justice Souter
delivered the opinion of the Court.
The Employee Retirement Income Security Act of 1974 (ERISA), 88 Stat. 829, 29 U. S. C. § 1001 et seq., generally obligates administrators to manage ERISA plans “in accordance with the documents and instruments governing” them. § 1104(a)(1)(D). At a more specific level, the Act requires covered pension benefit plans to “provide that benefits .. . under the plan may not be assigned or alienated,” § 1056(d)(1), but this bar does not apply to qualified domestic relations orders (QDROs), § 1056(d)(3). The question here is whether the terms of the limitation on assignment or alienation invalidated the act of a divorced spouse, the designated beneficiary under her ex-husband’s ERISA pension plan, who purported to waive her entitlement by a federal common law waiver embodied in a divorce decree that was not a QDRO. We hold that such a waiver is not rendered invalid by the text of the antialienation provision, but that the plan administrator properly disregarded the waiver owing to its conflict with the designation made by the former husband in accordance with plan documents.
I
The decedent, William Kennedy, worked for E. I. DuPont de Nemours & Company and was a participant in its savings and investment plan (SIP), with power both to “designate any beneficiary or beneficiaries ... to receive all or part” of the funds upon his death, and to “replace or revoke such designation.” App. 48. The plan requires “[a]ll authorizations, designations and requests concerning the Plan [to] be made by employees in the manner prescribed by the [plan administrator],” id., at 52, and provides forms for designating or changing a beneficiary, id., at 34, 56-57. If at the time the participant dies “no surviving spouse exists and no beneficiary designation is in effect, distribution shall be made to, or in accordance with the directions of, the executor or administrator of the decedent’s estate.” Id., at 48.
The SIP is an ERISA “‘employee pension benefit plan,”’ 497 F. 3d 426, 427 (CA5 2007); 29 U. S. C. § 1002(2), and the parties do not dispute that the plan satisfies ERISA’s anti-alienation provision, § 1056(d)(1), which requires it to “provide that benefits provided under the plan may not be assigned or alienated.” The plan does, however, permit a beneficiary to submit a “qualified disclaimer” of benefits as defined under the Tax Code, see 26 U. S. C. § 2518, which has the effect of switching the beneficiary to an “alternate . . . determined according to a valid beneficiary designation made by the deceased.” Supp. Record 86-87 (Exh. 15).
In 1971, William married Liv Kennedy, and, in 1974, he signed a form designating her to take benefits under the SIP, but naming no contingent beneficiary to take if she disclaimed her interest. 497 F. 3d, at 427. William and Liv divorced in 1994, subject to a decree that Liv “is ... divested of all right, title, interest, and claim in and to . . . [a]ny and all sums ... the proceeds [from], and any other rights related to any . . . retirement plan, pension plan, or like benefit program existing by reason of [William’s] past or present or future employment.” App. to Pet. for Cert. 64-65. William did not, however, execute any documents removing Liv as the SIP beneficiary, 497 F. 3d, at 428, even though he did execute a new beneficiary-designation form naming his daughter, Kari Kennedy, as the beneficiary under DuPont’s Pension and Retirement Plan, also governed by ERISA.
On William’s death in 2001, petitioner Kari Kennedy was named executrix and asked DuPont to distribute the SIP funds to William’s estate (hereinafter Estate). Ibid. DuPont, instead, relied on William’s designation form and paid the balance of some $400,000 to Liv. Ibid. The Estate then sued respondents DuPont and the SIP plan administrator (together, DuPont), claiming that the divorce decree amounted to a waiver of the SIP benefits on Liv’s part, and that DuPont had violated ERISA by paying the benefits to William’s designee.
So far as it matters here, the District Court entered summary judgment for the Estate, to which it ordered DuPont to pay the value of the SIP benefits. The court relied on Fifth Circuit precedent establishing that a beneficiary can waive his rights to the proceeds of an ERISA plan “‘provided that the waiver is explicit, voluntary, and made in good faith.’” App. to Pet. for Cert. 38 (quoting Manning v. Hayes, 212 F. 3d 866, 874 (CA5 2000)).
The Fifth Circuit nonetheless reversed, distinguishing prior decisions enforcing federal common law waivers of ERISA benefits because they involved life-insurance policies, which are considered “ ‘welfare plants]’ ” under ERISA and consequently free of the antialienation provision. 497 F. 3d, at 429. The Court of Appeals held that Liv’s waiver constituted an assignment or alienation of her interest in the SIP benefits to the Estate, and so could not be honored. Id., at 430. The court relied heavily on the ERISA provision for bypassing the antialienation provision when a marriage breaks up: under 29 U. S. C. § 1056(d)(3), a court order that satisfies certain statutory requirements is known as a QDRO, which is exempt from the bar on assignment or alienation. Because the Kennedys’ divorce decree was not a QDRO, the Fifth Circuit reasoned that it could not give effect to Liv’s waiver incorporated in it, given that “ERISA provides a specific mechanism — the QDRO — for addressing the elimination of a spouse’s interest in plan benefits, but that mechanism is not invoked.” 497 F. 3d, at 431.
We granted certiorari to resolve a split among the Courts of Appeals and State Supreme Courts over a divorced spouse’s ability to waive pension plan benefits through a divorce decree not amounting to a QDRO. 552 U. S. 1178 (2008). We subsequently realized that this case implicates the further split over whether a beneficiary’s federal common law waiver of plan benefits is effective where that waiver is inconsistent with plan documents, and after oral argument we invited supplemental briefing on that latter issue, upon which the disposition of this case ultimately turns. We now affirm, albeit on reasoning different from the Fifth Circuit’s rationale.
II
A
By its terms, the antialienation provision, § 1056(d)(1), requires a plan to provide expressly that benefits be neither “assigned” nor “alienated,” the operative verbs having histories of legal meaning: to “assign” is “[t]o transfer; as to assign property, or some interest therein,” Black’s Law Dictionary 152 (4th rev. ed. 1968), and to “alienate” is “[t]o convey; to transfer the title to property,” id., at 96. We think it fair to say that Liv did not assign or alienate anything to William or to the Estate later standing in his shoes.
The Fifth Circuit saw the waiver as an assignment or alienation to the Estate, thinking that Liv’s waiver transferred the SIP benefits to whoever would be next in line; without a designated contingent beneficiary, the Estate would take them. The court found support in the applicable Treasury Department regulation that defines “assignment” and “alienation” to include
“[a]ny direct or indirect arrangement (whether revocable or irrevocable) whereby a party acquires from a participant or beneficiary a right or interest enforceable against the plan in, or to, all or any part of a plan benefit payment which is, or may become, payable to the participant or beneficiary.” 26 CFR § 1.401(a) — 13(c)(l)(ii) (2008).
See Boggs v. Boggs, 520 U. S. 833, 851-852 (1997) (relying upon the regulation to interpret the meaning of “assignment” and “alienation” in § 1056(d)(1)). The Circuit treated Liv’s waiver as an “ ‘indirect arrangement’ ” whereby the Estate gained an “‘interest enforceable against the plan.’” 497 F. 3d, at 430.
Casting the alienation net this far, though, raises questions that leave one in doubt. Although it is possible to speak of the waiver as an “arrangement” having the indirect effect of a transfer to the next possible beneficiary, it would be odd usage to speak of an estate as the transferee of its own decedent’s property, just as it would be to speak of the decedent in his lifetime as his own transferee. And treating the estate or even the ultimate estate beneficiary as the assignee or transferee would be strange under the terms of the regulation: it would be hard to say the estate or future beneficiary “acquires” a right or interest when at the time of the waiver there was no estate and the beneficiary of a future estate might be anyone’s guess. If there were a contingent beneficiary (or the participant made a subsequent designation) the estate would get no interest; as for an estate beneficiary, the identity could ultimately turn on the law of intestacy applied to facts as yet unknown, or on the contents of the participant’s subsequent will, or simply on the participant’s future exercise of (or failure to invoke) the power to designate a new beneficiary directly under the terms of the plan. Thus, if such a waiver created an “arrangement” assigning or transferring anything under the statute, the assignor would be blindfolded, operating, at best, on the fringe of what “assignment” or “alienation” normally suggests.
The questionability of this broad reading is confirmed by exceptions to it that are apparent right off the bat. Take the case of a surviving spouse’s interest in pension benefits, for example. Depending on the circumstances, a surviving spouse has a right to a survivor’s annuity or to a lump-sum payment on the death of the participant, unless the spouse has waived the right and the participant has eliminated the survivor annuity benefit or designated a different beneficiary. See Boggs, supra, at 843; 29 U. S. C. §§ 1055(a), (b)(1)(C), (c)(2). This waiver by a spouse is plainly not barred by the antialienation provision. Likewise, DuPont concedes that a qualified disclaimer under the Tax Code, which allows a party to refuse an interest in property and thereby eliminate federal tax, would not violate the anti-alienation provision. See Brief for Respondents 21-23; 26 U. S. C. § 2518. In each example, though, we fail to see how these waivers would be permissible under the Fifth Circuit’s reading of the statute and regulation.
Our doubts, and the exceptions that call the Fifth Circuit’s reading into question, point us toward authority we have drawn on before, the law of trusts that “serves as ERISA’s backdrop.” Beck v. PACE Int’l Union, 551 U. S. 96, 101 (2007). We explained before that § 1056(d)(1) is much like a spendthrift trust provision barring assignment or alienation of a benefit, see Boggs, supra, at 852, and the cognate trust law is highly suggestive here. Although the beneficiary of a spendthrift trust traditionally lacked the means to transfer his beneficial interest to anyone else, he did have the power to disclaim prior to accepting it, so long as the disclaimer made no attempt to direct the interest to a beneficiary in his stead. See 2 Restatement (Third) of Trusts §58(1), Comment c, p. 359 (2001) (“A designated beneficiary of a spendthrift trust is not required to accept or retain an interest prescribed by the terms of the trust.... On the other hand, a purported disclaimer by which the beneficiary attempts to direct who is to receive the interest is a precluded transfer”); E. Griswold, Spendthrift Trusts §524, p. 603 (2d ed. 1947) (“The American cases, though not entirely clear, generally take the view that the interest under a spendthrift trust may be disclaimed”); Roseberry v. Moncure, 245 Va. 436, 439, 429 S. E. 2d 4, 6 (1993) (“ Tf a trust is created without notice to the beneficiary or the beneficiary has not accepted the beneficial interest under the trust, he can disclaim’” (quoting 1 A. Scott & W. Fratcher, Law of Trusts § 36.1, p. 389 (4th ed. 1987) (hereinafter Fratcher))).
We do not mean that the whole law of spendthrift trusts and disclaimers turns up in § 1056(d)(1), but the general principle that a designated spendthrift can disclaim his trust interest magnifies the improbability that a statute written with an eye on the old law would effectively force a beneficiary to take an interest willy-nilly. Common sense and common law both say that “[t]he law certainly is not so absurd as to force a man to take an estate against his will.” Townson v. Tickell, 3 Barn. & Ald. 31, 36, 106 Eng. Rep. 575, 576-577 (K. B. 1819).
The Treasury is certainly comfortable with the state of the old law, for the way it reads its own regulation “no party ‘acquires from’ a beneficiary a ‘right or interest enforceable against a plan’ pursuant to a beneficiary’s waiver of rights where the beneficiary does not attempt to direct her interest in pension benefits to another person.” Brief for United States as Amicus Curiae 18. And, being neither “plainly erroneous [n]or inconsistent with the regulation,” the Treasury Department’s interpretation of its regulation is controlling. Auer v. Robbins, 519 U. S. 452, 461 (1997) (internal quotation marks omitted).
The Fifth Circuit found “significant support” for its contrary holding in the QDRO subsections, reasoning that “[i]n the marital-dissolution context, the QDRO provisions supply the sole exception to the anti-alienation provision,” 497 F. 3d, at 430, a point that echoes in DuPont’s argument here. But the negative implication of the QDRO language is not that simple. If a QDRO provided a way for a former spouse like Liv merely to waive benefits, this would be powerful evidence that the antialienation provision was meant to deny any effect to a waiver within a divorce decree but not a QDRO, else there would have been no need for the QDRO exception. But this is not so, and DuPont’s argument rests on a false premise. In fact, a beneficiary seeking only to relinquish her right to benefits cannot do this by a QDRO, for a QDRO by definition requires that it be the “creat[ion] or recognition of] the existence of an alternate payee’s right to, or assignment] to an alternate payee [of] the right to, receive all or a portion of the benefits payable with respect to a participant under a plan.” 29 U. S. C. § 1056(d)(3)(B)(i)(I). There is no QDRO for a simple waiver; there must be some succeeding designation of an alternate payee. Not being a mechanism for simply renouncing a claim to benefits, then, the QDRO provisions shed no light on whether a beneficiary may waive by a non-QDRO.
In sum, Liv did not attempt to direct her interest in the SIP benefits to the Estate or any other potential beneficiary, and accordingly we think that the better view is that her waiver did not constitute an assignment or alienation rendered void under the terms of § 1056(d)(1).
B
DuPont has three other reasons for saying that Liv’s waiver was barred by ERISA. They are unavailing.
First, it argues that even if the waiver is not an assignment or alienation barred under the terms of § 1056(d)(1), § 1056(d)(3)(A) still prohibits it, in providing that § 1056(d)(1) “shall apply to the creation, assignment, or recognition of a right to any benefit payable with respect to a participant pursuant to a domestic relations order [that is not a QDRO].” At the very least, DuPont reasons, Liv’s waiver included a “recognition” of William’s rights with respect to the SIP benefits. But DuPont overlooks the point that when subsection (d)(3)(A) provides that the bar to assignments or alienations extends to non-QDROs, it does nothing to expand the scope of prohibited assignment and alienation under subsection (d)(1). Whether Liv’s action is seen as a waiver or as a domestic relations order that incorporated a waiver, subsection (d)(1) does not cover it and § 1056(d)(3)(A) does not independently bar it.
Second, DuPont relies upon •§ 1056(d)(3)(H)(iii)(II), providing that if a domestic relations order is not a QDRO, “the plan administrator shall pay the segregated amounts (including any interest thereon) to the person or persons who would have been entitled to such amounts if there had been no order.” According to DuPont, because the divorce decree was not a QDRO this provision calls for paying benefits as if there had been no order. But DuPont has wrenched this language out of its setting, reading clause (iii) of subparagraph (H) as if there were no clause (i):
“During any period in which the issue of whether a domestic relations order is a qualified [QDRO] domestic relations order is being determined... the plan administrator shall separately account for the amounts (hereinafter in this subparagraph referred to as the ‘segregated amounts’) which would have been payable to the alternate payee during such period if the order had been determined to be a [Q
Question: Who is the respondent of the case?
001. attorney general of the United States, or his office
002. specified state board or department of education
003. city, town, township, village, or borough government or governmental unit
004. state commission, board, committee, or authority
005. county government or county governmental unit, except school district
006. court or judicial district
007. state department or agency
008. governmental employee or job applicant
009. female governmental employee or job applicant
010. minority governmental employee or job applicant
011. minority female governmental employee or job applicant
012. not listed among agencies in the first Administrative Action variable
013. retired or former governmental employee
014. U.S. House of Representatives
015. interstate compact
016. judge
017. state legislature, house, or committee
018. local governmental unit other than a county, city, town, township, village, or borough
019. governmental official, or an official of an agency established under an interstate compact
020. state or U.S. supreme court
021. local school district or board of education
022. U.S. Senate
023. U.S. senator
024. foreign nation or instrumentality
025. state or local governmental taxpayer, or executor of the estate of
026. state college or university
027. United States
028. State
029. person accused, indicted, or suspected of crime
030. advertising business or agency
031. agent, fiduciary, trustee, or executor
032. airplane manufacturer, or manufacturer of parts of airplanes
033. airline
034. distributor, importer, or exporter of alcoholic beverages
035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked
036. American Medical Association
037. National Railroad Passenger Corp.
038. amusement establishment, or recreational facility
039. arrested person, or pretrial detainee
040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association
041. author, copyright holder
042. bank, savings and loan, credit union, investment company
043. bankrupt person or business, or business in reorganization
044. establishment serving liquor by the glass, or package liquor store
045. water transportation, stevedore
046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines
047. brewery, distillery
048. broker, stock exchange, investment or securities firm
049. construction industry
050. bus or motorized passenger transportation vehicle
051. business, corporation
052. buyer, purchaser
053. cable TV
054. car dealer
055. person convicted of crime
056. tangible property, other than real estate, including contraband
057. chemical company
058. child, children, including adopted or illegitimate
059. religious organization, institution, or person
060. private club or facility
061. coal company or coal mine operator
062. computer business or manufacturer, hardware or software
063. consumer, consumer organization
064. creditor, including institution appearing as such; e.g., a finance company
065. person allegedly criminally insane or mentally incompetent to stand trial
066. defendant
067. debtor
068. real estate developer
069. disabled person or disability benefit claimant
070. distributor
071. person subject to selective service, including conscientious objector
072. drug manufacturer
073. druggist, pharmacist, pharmacy
074. employee, or job applicant, including beneficiaries of
075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan
076. electric equipment manufacturer
077. electric or hydroelectric power utility, power cooperative, or gas and electric company
078. eleemosynary institution or person
079. environmental organization
080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer.
081. farmer, farm worker, or farm organization
082. father
083. female employee or job applicant
084. female
085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of
086. fisherman or fishing company
087. food, meat packing, or processing company, stockyard
088. foreign (non-American) nongovernmental entity
089. franchiser
090. franchisee
091. lesbian, gay, bisexual, transexual person or organization
092. person who guarantees another's obligations
093. handicapped individual, or organization of devoted to
094. health organization or person, nursing home, medical clinic or laboratory, chiropractor
095. heir, or beneficiary, or person so claiming to be
096. hospital, medical center
097. husband, or ex-husband
098. involuntarily committed mental patient
099. Indian, including Indian tribe or nation
100. insurance company, or surety
101. inventor, patent assigner, trademark owner or holder
102. investor
103. injured person or legal entity, nonphysically and non-employment related
104. juvenile
105. government contractor
106. holder of a license or permit, or applicant therefor
107. magazine
108. male
109. medical or Medicaid claimant
110. medical supply or manufacturing co.
111. racial or ethnic minority employee or job applicant
112. minority female employee or job applicant
113. manufacturer
114. management, executive officer, or director, of business entity
115. military personnel, or dependent of, including reservist
116. mining company or miner, excluding coal, oil, or pipeline company
117. mother
118. auto manufacturer
119. newspaper, newsletter, journal of opinion, news service
120. radio and television network, except cable tv
121. nonprofit organization or business
122. nonresident
123. nuclear power plant or facility
124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels
125. shareholders to whom a tender offer is made
126. tender offer
127. oil company, or natural gas producer
128. elderly person, or organization dedicated to the elderly
129. out of state noncriminal defendant
130. political action committee
131. parent or parents
132. parking lot or service
133. patient of a health professional
134. telephone, telecommunications, or telegraph company
135. physician, MD or DO, dentist, or medical society
136. public interest organization
137. physically injured person, including wrongful death, who is not an employee
138. pipe line company
139. package, luggage, container
140. political candidate, activist, committee, party, party member, organization, or elected official
141. indigent, needy, welfare recipient
142. indigent defendant
143. private person
144. prisoner, inmate of penal institution
145. professional organization, business, or person
146. probationer, or parolee
147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer
148. public utility
149. publisher, publishing company
150. radio station
151. racial or ethnic minority
152. person or organization protesting racial or ethnic segregation or discrimination
153. racial or ethnic minority student or applicant for admission to an educational institution
154. realtor
155. journalist, columnist, member of the news media
156. resident
157. restaurant, food vendor
158. retarded person, or mental incompetent
159. retired or former employee
160. railroad
161. private school, college, or university
162. seller or vendor
163. shipper, including importer and exporter
164. shopping center, mall
165. spouse, or former spouse
166. stockholder, shareholder, or bondholder
167. retail business or outlet
168. student, or applicant for admission to an educational institution
169. taxpayer or executor of taxpayer's estate, federal only
170. tenant or lessee
171. theater, studio
172. forest products, lumber, or logging company
173. person traveling or wishing to travel abroad, or overseas travel agent
174. trucking company, or motor carrier
175. television station
176. union member
177. unemployed person or unemployment compensation applicant or claimant
178. union, labor organization, or official of
179. veteran
180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL)
181. wholesale trade
182. wife, or ex-wife
183. witness, or person under subpoena
184. network
185. slave
186. slave-owner
187. bank of the united states
188. timber company
189. u.s. job applicants or employees
190. Army and Air Force Exchange Service
191. Atomic Energy Commission
192. Secretary or administrative unit or personnel of the U.S. Air Force
193. Department or Secretary of Agriculture
194. Alien Property Custodian
195. Secretary or administrative unit or personnel of the U.S. Army
196. Board of Immigration Appeals
197. Bureau of Indian Affairs
198. Bonneville Power Administration
199. Benefits Review Board
200. Civil Aeronautics Board
201. Bureau of the Census
202. Central Intelligence Agency
203. Commodity Futures Trading Commission
204. Department or Secretary of Commerce
205. Comptroller of Currency
206. Consumer Product Safety Commission
207. Civil Rights Commission
208. Civil Service Commission, U.S.
209. Customs Service or Commissioner of Customs
210. Defense Base Closure and REalignment Commission
211. Drug Enforcement Agency
212. Department or Secretary of Defense (and Department or Secretary of War)
213. Department or Secretary of Energy
214. Department or Secretary of the Interior
215. Department of Justice or Attorney General
216. Department or Secretary of State
217. Department or Secretary of Transportation
218. Department or Secretary of Education
219. U.S. Employees' Compensation Commission, or Commissioner
220. Equal Employment Opportunity Commission
221. Environmental Protection Agency or Administrator
222. Federal Aviation Agency or Administration
223. Federal Bureau of Investigation or Director
224. Federal Bureau of Prisons
225. Farm Credit Administration
226. Federal Communications Commission (including a predecessor, Federal Radio Commission)
227. Federal Credit Union Administration
228. Food and Drug Administration
229. Federal Deposit Insurance Corporation
230. Federal Energy Administration
231. Federal Election Commission
232. Federal Energy Regulatory Commission
233. Federal Housing Administration
234. Federal Home Loan Bank Board
235. Federal Labor Relations Authority
236. Federal Maritime Board
237. Federal Maritime Commission
238. Farmers Home Administration
239. Federal Parole Board
240. Federal Power Commission
241. Federal Railroad Administration
242. Federal Reserve Board of Governors
243. Federal Reserve System
244. Federal Savings and Loan Insurance Corporation
245. Federal Trade Commission
246. Federal Works Administration, or Administrator
247. General Accounting Office
248. Comptroller General
249. General Services Administration
250. Department or Secretary of Health, Education and Welfare
251. Department or Secretary of Health and Human Services
252. Department or Secretary of Housing and Urban Development
253. Interstate Commerce Commission
254. Indian Claims Commission
255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement
256. Internal Revenue Service, Collector, Commissioner, or District Director of
257. Information Security Oversight Office
258. Department or Secretary of Labor
259. Loyalty Review Board
260. Legal Services Corporation
261. Merit Systems Protection Board
262. Multistate Tax Commission
263. National Aeronautics and Space Administration
264. Secretary or administrative unit of the U.S. Navy
265. National Credit Union Administration
266. National Endowment for the Arts
267. National Enforcement Commission
268. National Highway Traffic Safety Administration
269. National Labor Relations Board, or regional office or officer
270. National Mediation Board
271. National Railroad Adjustment Board
272. Nuclear Regulatory Commission
273. National Security Agency
274. Office of Economic Opportunity
275. Office of Management and Budget
276. Office of Price Administration, or Price Administrator
277. Office of Personnel Management
278. Occupational Safety and Health Administration
279. Occupational Safety and Health Review Commission
280. Office of Workers' Compensation Programs
281. Patent Office, or Commissioner of, or Board of Appeals of
282. Pay Board (established under the Economic Stabilization Act of 1970)
283. Pension Benefit Guaranty Corporation
284. U.S. Public Health Service
285. Postal Rate Commission
286. Provider Reimbursement Review Board
287. Renegotiation Board
288. Railroad Adjustment Board
289. Railroad Retirement Board
290. Subversive Activities Control Board
291. Small Business Administration
292. Securities and Exchange Commission
293. Social Security Administration or Commissioner
294. Selective Service System
295. Department or Secretary of the Treasury
296. Tennessee Valley Authority
297. United States Forest Service
298. United States Parole Commission
299. Postal Service and Post Office, or Postmaster General, or Postmaster
300. United States Sentencing Commission
301. Veterans' Administration
302. War Production Board
303. Wage Stabilization Board
304. General Land Office of Commissioners
305. Transportation Security Administration
306. Surface Transportation Board
307. U.S. Shipping Board Emergency Fleet Corp.
308. Reconstruction Finance Corp.
309. Department or Secretary of Homeland Security
310. Unidentifiable
311. International Entity
Answer:
|
songer_applfrom
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court).
BRUCE v. CHESTNUT FARMS-CHEVY CHASE DAIRY.
No. 7881.
United States Court of Appeals for the District of Columbia.
Argued Jan. 9, 1942.
Decided Feb. 9, 1942.
Mr. Joseph A. Solem, with whom Mr. Raymond J. Nolan, both of Washington, D. C., was on the brief, for appellant.
Mr. Edwin A. Swingle, with whom Messrs. Ernest A. Swingle and Allan C. Swingle, all of Washington, D. C., were on the brief for appellee.
Before GRONER, Chief Justice, and MILLER and EDGERTON, Associate Justices.
PER CURIAM.
This is an action begun in the court below for damages for personal injuries sustained as the result of drinking milk from a footle containing splinters of glass. At jjjg conclusion of the trial the jury returned to the ,court room and were asked by the cierk jn tbe presence of the judge and counsel ¡f they bad agTeed upon a verdict. The jury responded “Yes”. Upon being asked what the verdict was, the jury responded, por the defendant”. The clerk then asked, "Is this your verdict, members of the Jury, so say you eacb and all”. The reply was, «Yes”. Thereupon the plaintiff’s attorney asked for a poll of tIle jury. The presiding judge stated tbat be would pon tbe jury personally. The record then shows fal-
“He pointed to one of the Jurors (Mrs. Sinrod) who was at the end of one of the two hnes of Jurors, and asked, What is y?Yr .Y,?1^1™ * responded, For the Pontiff. The Court said, You mean for tbe defendant. She responded, No, for the Pontiff The Court said Do you know who the plaintiff is and she said, The Court said, _ Plaintiff is the one wbo 1S bringing the suit, the defendant is the °ne_against whom the suit is brought, Juror Sinrod replied, Yes, I know that, that ^ke plaintiff (pointing to the plaintiff) ank that is his attorney (pointing to Attorney Solem) .
“In the meantime considerable talking and whispering had arisen in the Jury box. Attorney Swingle, for the defendant, arose and said, ‘Well, didn’t you agree your verdiet was for the defendant in the Jury roQm,? where counsel for the plain_ tíff immediately objected to any interrogation by defendant’s attorney of the Juror as to her verdict and also objected to further questioning of the Juror by the Court, The Court failed to rule on this objection, Defendant’s attorney attempted to continue his questioning but was stopped by the Presiding Judge. Under repeated questioning by the Court, Juror Sinrod said that she had been for the plaintiff all along and said, ‘If you mean my own verdict, it is for the plaintiff;. This Juror then said she had aFC!d/nJthe JU/y r1°°m t0 & V6i. the defendant, after listening to the arguments of the other Jurors and m order not to tie up the jury, and then she said m the Jury box, I find now for the defendant, I thought you were asking how I stood m the beginning in the Jury room. I did agree to a verdict for the defendant.
“Attorney Solem, for the plaintiff, imme-' diately moved for a mistrial, and the Court responded, ‘Don’t interrupt me now, I am going to continue with the poll’. The Presiding Judge then continued to poll the Jurors and the next three Jurors each said they found for the defendant. The Judge then came to the fifth Juror. When he asked her what her verdict was, she said, ‘For the plaintiff’. The Presiding Judge then asked her if she did not mean the defendant. She responded, ‘No, for the plaintiff, and I would like to say something to the Court.’ The Judge said, ‘This is not the time for that’. Plaintiff, through Attorney Solem, again moved for a mistrial, The Presiding Judge denied this motion and said, T am going to finish polling this Jury’. He then continued to poll the Jury, and all the jurors responded for the defendant, Upon completion, he told the Jury they might go. Juror Russell said she wanted to speak to the Judge about the matter. He said, ‘No, this is not the time for that’. Attorney Solem again moved for a mistrial and the Judge said, T heard you the first time, I won’t pass on that now. This Juror on the poll in the Jury box answered, ‘For the defendant’.”
On this record, we think the trial court should not have received and recorded the verdict. Not only does the statement, which we have copied as it appears, leave us in doubt whether there ever was an assent by all the jurors to the verdict, but in addition to this, it presents such a situation of confusion and misunderstanding as to require the retrial of the case. A similar dilemma is shown to have arisen in the case of Kramer v. Kister, 187 Pa. 227, 40 A. 1008, 1010, 44 L.R.A. 432, and in awarding a new trial the Pennsylvania Supreme Court said: “When a juror dissents from a sealed verdict, there is a necessary choice of evils, — a mistrial, or a verdict finally delivered under circumstances that justly subject it to suspicion of coercion or improper influences. We are of opinion that the former is the lesser evil.”
There can be no question of tbe right of a iuror) when polled, to dissent from a verdict tQ wbicb he has agreed in the j ro and wben this h the . sbould either fee discha d or returned tQ thdr r00m for furtller deliberation. It is botb unwise and undesirable that the court sbould enter intQ an a ent witb the juror or require an explanation of his change _of_ position. To an even greater degree is it improper to allow counsel to interpose and question the reasons or motives of the juror in changing his mind, The correct practice, when a poll of the jury is asked, is for the clerk to call the roll and ask each juror as his name is called to answer — for the plaintiff, or — for the defendant, and if the responses of the individual jurors are not in complete agreement, the jury should be required to retire and give further consideration to the case,
Here when the first juror announced opposition to the verdict as read, counfel interposed force an explanation of ber mind. He, m turn, was followed b7 the Jud§>e’ unül tbe Juror under repeated questioning” said, “I find now for tbe defendant,” but obviously “convinced aSa“st her will — was of the same opinion stlU • JudSes should bear m mmd that a S°od and ,valld verdict is not dependent on juror agrees to in the jury room, but wbat the iuror a£rees t0 when the iur7 returns into court to give their verdict, and tbe questioning of the juror by counsel and tbe court> though doubtless well intended, should not have been indulged. The second dissenting juror when she was interrogated answered “For the plaintiff”. The judge then asked her if she did not mean for the defendant, and she responded, “No, for the plaintiff, and I would like to say something to the court”. The judge said “This is not the time for that”. He then continued to poll the jury, and the others responding “For the defendant”, “he told the Jury they might go”. Apparently after all of this and after motion for mistrial had been made and consideration postponed, the second dissenting juror answered, “For the defendant”. But this was too late, for in the meantime the jury had been improperly interrogated, the motion to declare a mistrial had been made and taken under consideration, and the jury discharged. A verdict recorded under these conditions is wholly without meaning or effect. For a full citation of the authorities on the subject generally, see the opinion in Mattice v. Maryland Casualty Co., D.C., 5 F.2d 233.
The judgment of the court below is, therefore, reversed, and a new trial awarded,
Reversed.
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_procedur
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant.
INTERSTATE COMMERCE COMMISSION v. BLUE DIAMOND PRODUCTS CO.
No. 14387.
United States Court of Appeals Eighth Circuit.
Nov. 5, 1951.
H. J. Simmons, Atty., Interstate Commerce Commission, Kansas City, Mo. (Leo H. Pou, Washington, D. C., and Herman L. Bode, Minneapolis, Minn., Attys., Interstate Commerce Commission, were with him on the brief), for appellant.
Oscar E. Johnson, Council Bluffs, Iowa (Ross, Johnson, Northrop & Stuart, Council Bluffs, Iowa, were with him on the brief), for appellee.
Before GARDNER, Chief Judge, and WOODROUGH and RIDDICK, Circuit Judges.
GARDNER, Chief Judge.
This appeal is from a final order dismissing plaintiff’s (appellant’s) complaint. Plaintiff by this action sought a permanent injunction restraining defendant from procuring certain named motor carriers to transport its property in interstate commerce by motor vehicle on the public highways for compensation in alleged violation of Section 209 of the Interstate Commerce Act, 49 U.S.C.A. §§ 306(a) and 309 (a). The complaint alleged, inter alia, that defendant, an Iowa corporation, induced and procured certain named persons to engage in interstate operations on public highways as common and contract carriers by motor vehicle and as such carriers to transport for hire, butter on public highways between certain named places, well knowing that the persons so procured did not hold operating authority issued by the Interstate Commerce Commission authorizing them to engage in such interstate commerce. The complaint recited that the suit was brought and jurisdiction of the court invoked under the provisions of Sections 204(a) and 222(b) of the Interstate Commerce Act, 49 U.S.C.A. §§ 304(a), 322(b), and under the general laws and rules relative to suits in equity.
After the filing of the complaint defendant moved for a dismissal on two grounds: (1) the court had no jurisdiction over the subject matter;, and (2) failure to join indispensable parties. This motion was overruled by the judge then presiding, whereupon defendant filed answer in which it specifically pleaded as defenses the grounds urged in its motion to dismiss and in effect denied all material allegations of the complaint. Thereafter the case came on for trial before another judge who, after hearing statements of counsel for both parties and after consultation with counsel, concluded first to hear the issues raised by defendant’s motion for dismissal and preserved in its answer. This was with the consent of counsel for both of the parties. The court requested defendant to offer some evidence to show the relationship that existed with reference to the lease contracts and the employment contracts that had been discussed by counsel for both parties in their opening statements. Testimony was presented in open court covering two of the specific transactions complained of in plaintiff’s complaint, these being selected as typical of all the items complained of. There was produced by defendant and offered and received in evidence the original contracts with reference to these transactions and there was oral testimony offered.
The evidence with reference to the first typical transaction showed that a truck was rented by defendant from Mark Tea-gue under written lease. On the trip complained of this truck was driven and operated by an employee of the defendant. The truck was also driven and operated on the return trip by an employee of the defendant, and on the return trip carried merchandise belonging to defendant. In the second typical transaction it appeared that a truck was rented from Cleo Morehouse. Mr. Morehouse operated the truck and he was a regular employee of defendant, having been regularly employed by defendant as a truck driver for a period of three and one-half years and having driven trucks belonging to defendant as well as those rented by defendant. This truck was driven into Chicago and returned. The evidence disclosed that defendant owned a fleet of trucks for the transportation of its merchandise and it leased the trucks involved under written leases containing the terms and conditions of such lease and setting out the rental payable, and such trucks were used only for the transportation of defendant’s merchandise. Defendant had the right to hire the drivers of these trucks, and in some instances the drivers were the owners of the leased trucks. The drivers were employees of the defendant and paid by it for their services and the trucks were under the direct control of defendant. Defendant paid unemployment compensation tax on all these truck drivers and also paid workmen’s compensation insurance covering them, withheld Federal income tax payments, and all drivers were under bond. Defendant had the right to determine who should be the driver of any particular truck and defendant had the right to discharge the drivers 'at any time at its discretion. Defendant used its own trucks at the same time and all drivers were supervised in the same manner. The owners were paid a specified rental for the lease of the trucks and the drivers were paid a specified sum for their services in driving the trucks. Defendant preferred to use its own employees in transporting its butter which is very perishable and it could thus control the time of delivery and the condition of the merchandise upon delivery.
Plaintiff offered no evidence but cross-examined defendant’s witnesses. After hearing the evidence submitted and the arguments of counsel, the court sustained the motion to dismiss and from the order of dismissal so entered plaintiff prosecutes this appeal. The appeal involves two questions: Did the court have jurisdiction to grant the relief asked in plaintiff’s complaint, and were the owners of the leased trucks indispensable parties?
The statute under which plaintiff predicates its right to injunctional relief and likewise the jurisdiction of the court to grant such relief is Section 222(b) of the Interstate Commerce Act, 49 U.S.C.A. § 322(b). That section so far as here pertinent reads as follows: “If any motor carrier or broker operates in violation of any provision of this part * * *, the Commission * * * may apply to the district court of the United States for any district where such motor carrier or broker operates, for the enforcement of such provision of this part * * * and such court shall have jurisdiction to enforce obedience thereto by a writ of injunction or by other process, mandatory or otherwise, restraining such carrier or broker, his or its officers, agents, employees, and representatives from further violation * >;t »
It is to be noted that this statute confers jurisdiction on the district court to enjoin an offending carrier or broker. No mention is made of shippers, such as the defendant confessedly is. By this statute Congress has definitely specified the parties who may be enjoined from violating the provisions of the Act and it is significant that so far as the Act is concerned it docs not purport to confer jurisdiction upon the district court generally to' enjoin violators but only to enjoin those designated.
In Continental Casualty Co. v. United States, 314 U.S. 527, 62 S.Ct. 393, 396, 86 L.Ed. 426, the Supreme Court, speaking of the power of courts of the United States to act after the term in which the forfeiture of a bail bond was entered, said:
“Whatever may have been the powers of the courts of the United States before the statute, those powers are now regulated by statute. Cf. United States v. Mack, 295 U.S. 480, 488, 55 S.Ct. 813, 817, 79 L.Ed. 1559. These statutory powers are exclusive. Before remission may be allowed there must be a determination of lack of wilfulness in the default, that a trial can be had, and that public justice does not otherwise require the enforcement of the penalty. The statement of the conditions negatives action without the satisfaction of those requirements. Generally speaking a ‘legislative affirmative description’ implies denial of the non-described powers. Durousseau v. United States, 6 Cranch 307, 314, 3 L.Ed. 232. The circumstances of this inquiry carry us beyond the rule of expressio unius est exclusio alterius, cf. Ford v. United States, 273 U.S. 593, 611, 47 S.Ct. 531, 537, 71 L.Ed. 793, and into the domain of inconsistency of purpose. Cf. Texas & Pacific Ry. Co. v. Abilene Cotton Oil Co., 204 U.S. 426, 436, et seq., 27 S.Ct. 350, 353, 51 L.Ed. 553. There cannot logically be two series of tests to determine the power of a federal court to relieve of forfeiture under a recognizance.”
If Congress had intended to include shippers, manufacturers and processors in the provisions of the Act against whom injunction might lie, it seems logical to assume, in view of the fact that it enumerated persons against whom it should lie, that it would have done so. We think the maxim “expressio uniu-s est exclusio alterius?’ applicable.
In Securities and Exchange Commission v. Long Island Lighting Co., 2 Cir., 148 F.2d 252, 256, plaintiff sought to invoke the general equity powers of a Federal court. Referring to the fact that the Congress conferred upon the Commission in that case power to invoke the aid of the courts “only to prevent evasions of the Act and non-compliance with the orders of the Commission,” the court said: “There is concededly no power to restrain or discipline holding companies exempt from its provisions. It would seem, therefore, that the guide to statutory construction in the maxim expressio unius exclusio alterius, is applicable. Express powers are generally construed to be in negation of powers not expreásly granted * *
But it is urged that the plaintiff is not relying exclusively upon the statutory authority but is invoking what is referred to as the general equity power of the court. Federal courts are not courts of general jurisdiction but whatever equitable jurisdiction the court might impliedly have possessed, we think, upon the adoption of this statute was limited to the persons expressly designated therein. This we think is the teaching of the Supreme Court in Continental Casualty Co. v. United States,, supra.
The complaint names a number of persons alleged to be motor carriers. The evidence was without dispute that the owners of the various trucks had leased them to the defendant. Enjoining the defendant would of necessity have affected the property rights-of these parties. Rule 19(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A.,. provides: “(a) Necessary Joinder. Subject to the provisions of Rule 23 and of subdivision (b) of this rule, persons having a joint interest shall be made parties and be joined on the same side as plaintiffs or defendants. When a person who should' join as a plaintiff refuses to do so, he may be made a defendant or, in proper cases,, an involuntary plaintiff.”
These parties had a monetary interest in. the controversy here involved.
On the question as to who are necessary parties the case of Shields v. Barrow, 17 How. 130, 15 L.Ed. 158, is often; cited. It is there said that “persons who-not only have an interest in the controversy,, but an interest of such a nature that a final decree cannot be made without either affecting that interest, or leaving the controversy in such a condition that its final termination may be wholly inconsistent with equity and good conscience” are indispensable parties. This case is cited as-an authority in Commonwealth Trust Co. of Pittsburg v. Smith, 266 U.S. 152, 45 S.Ct. 26, 28, 69 L.Ed. 219, where it is said: “But, as the bill was dismissed because of the refusal to bring in additional parties,. the only question open here is whether the parties indicated were necessary parties. Of course they were, if they had such an interest in the matter in controversy that it could not be determined without either -affecting that interest or leaving the interests of those who were before the court in a situation that might be embarrassing and inconsistent with equity.”
To the same effect see: Chance v. Buxton, 5 Cir., 170 F.2d 187; Keegan v. Humble Oil & Refining Co., 5 Cir., 155 F.2d 971; Christian v. Atlantic & N. C. R. Co., 133 U.S. 233, 10 S.Ct. 260, 33 L.Ed. 589.
These parties have such an interest in the controversy that a final decree can not, we think, be made without affecting that interest, or, as said by the Supreme Court, “leaving the controversy in such a condition that its final termination may be wholly inconsistent with equity.” An injunction here against the defendant could only be granted on the theory that the various leases and contracts are void-. Certainly these parties have a very substantial interest in that question and we conclude that they are indispensable parties.
The order appealed from is therefore affirmed.
Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
sc_issuearea
|
A
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states.
CODISPOTI et al. v. PENNSYLVANIA
No. 73-5615.
Argued March 25, 1974
Decided June 26, 1974
John J. Dean argued the cause for petitioners. With him on the brief was George H. Ross.
Robert L. Eberhardt argued the cause for respondent pro hac vice. With him on the brief was Robert W. Duggan.
Mr. Justice White
delivered the opinion of the Court.
In December 1966, petitioners Dominick Codispoti and Herbert Langnes were codefendants with Richard May-berry in a criminal trial ending in a verdict of guilty. Each acted as his own counsel, although legal advice was available from appointed counsel. At the conclusion of the trial, the judge pronounced Mayberry guilty of 11 contempts committed during trial and sentenced him to one to two years for each contempt. Codispoti was given like sentences for each of seven separate contempts. Langnes was sentenced to one to two years on each of six separate citations. Mayberry’s total sentence was thus 11 to 22 years, Codispoti’s seven to 14 years, and Langnes’ six to 12 years. The contempt convictions were affirmed by the Pennsylvania Supreme Court. This Court granted Mayberry’s petition for certiorari, 397 U. S. 1020, and vacated the judgment of the Pennsylvania court, directing that “on remand another judge, not bearing the sting of these slanderous remarks and having the impersonal authority of the law, [sit] in judgment on the conduct of petitioner as shown by the record.” Mayberry v. Pennsylvania, 400 U. S. 455, 466 (1971).
The contempt charges against Mayberry and petitioners were then retried in separate proceedings before another trial judge. Codispoti’s demand for a jury was denied. He also moved to subpoena witnesses “to prove that my actions did not disrupt the proceedings, and I intend to prove that my actions [sic] was not contemptuous, that it was merely an answer to the provocation made by the presiding Judge.” App. 47. This motion was also denied, the court remarking that “this is an issue between the Court and you, and the record will speak for the Court, and you and counsel can speak for yourself.” Ibid. The trial then proceeded, the State offering into evidence the relevant portions of the transcript of the 1966 criminal proceedings in the course of which the alleged con-tempts occurred. The State then rested. Codispoti neither testified nor called witnesses. The court found that he had committed the seven contemptuous acts as charged and sentenced him to six months in prison for each of six contempts and a term of three months for another, all of these sentences to run consecutively.
Petitioner Langnes’ trial followed a very similar course. He was found guilty of six separate contempts and sentenced to five terms of six months each and one term of two months, all to be served consecutively.
The trial court filed an opinion stating that “the only points at issue are the validity of the sentences. The question of guilt of contemptuous conduct has been confirmed by both the Supreme Court of Pennsylvania . . . and by the U. S. Supreme Court. . . , therefore testimony at this hearing was limited to the record.” App. 35. The court also held that petitioners were not entitled to a jury trial
“because the questions of guilt to which the juries’ decisions would be limited had already been adjudicated adversely to the Defendants by two appellate courts. Furthermore, in the instant cases no term of imprisonment in excess of six months was imposed for any one offense. The offenses for which sentences were imposed occurred at different times and on different dates.” Id., at 36 (footnote omitted).
The Pennsylvania Supreme Court affirmed without opinion, one justice dissenting on the ground that petitioners were entitled to a jury trial. 453 Pa. 619, 306 A. 2d 294. We granted certiorari limited to those questions raising the issue whether petitioners should have been afforded a jury trial. 414 U. S. 1063 (1973).
I
In Duncan v. Louisiana, 391 U. S. 145 (1968), the Court held that the Fourteenth Amendment guaranteed to defendants in state criminal trials the right to jury trial provided in the Sixth Amendment. In a companion case, Bloom v. Illinois, 391 U. S. 194 (1968), the Court held that while petty contempts, like other petty crimes, could be tried without a jury, serious criminal contempts had to be tried with a jury if the defendant insisted on this mode of trial. Although the judgment about the seriousness of the crime is normally heavily influenced by the penalty authorized by the legislature, the Court held that where no legislative penalty is specified and sentence is left to the discretion of the judge, as is often true in the case of criminal contempt, the pettiness or seriousness of the contempt will be judged by the penalty actually imposed. Finally, the Court recognized that sentences up to six months could be imposed for criminal contempt without guilt or innocence being determined by a jury, but a conviction for criminal contempt in a non-jury trial could not be sustained where the penalty imposed was 24 months in prison.
Since that time, our decisions have established a fixed dividing line between petty and serious offenses: those crimes carrying a sentence of more than six months are serious crimes and those carrying a sentence of six months or less are petty crimes. Frank v. United States, 395 U. S. 147, 149-150 (1969); Baldwin v. New York, 399 U. S. 66, 69 (1970). Under these cases, we plainly cannot accept petitioners’ argument that a contemnor is entitled to a jury trial simply because a strong possibility exists that he will face a substantial term of imprisonment upon conviction, regardless of the punishment actually imposed. See Taylor v. Hayes, ante, p. 488. Our cases, however, do not expressly address petitioners’ remaining argument that they were entitled to jury trials because the prison sentences imposed after posttrial convictions for contemptuous acts during trial were to be served consecutively and, although each was no more than six months, aggregated more than six months in jail.
II
There are recurring situations where the trial judge, to maintain order in the courtroom and the integrity of the trial process in the face of an “actual obstruction of justice,” In re McConnell, 370 U. S. 230, 236 (1962); see also In re Little, 404 U. S. 553, 555 (1972), convicts and sentences the accused or the attorneys for either side for various acts of contempt as they occur. Undoubtedly, where the necessity of circumstances warrants, a contemnor may be summarily tried for an act of contempt during trial and punished by a term of no more than six months. Nor does the judge exhaust his power to convict and punish summarily whenever the punishment imposed for separate contemptuous acts during trial exceeds six months. Cf. United States v. Seale, 461 F. 2d 345, 355 (CA7 1972).
Bloom v. Illinois, supra, recognized, as cases in this Court have consistently done, “the need to maintain order and a deliberative atmosphere in the courtroom. The power of a judge to quell disturbance cannot attend upon the impaneling of a jury.” 391 U. S., at 210.
“[A] criminal trial, in the constitutional sense, cannot take place where the courtroom is a bedlam .... A courtroom is a hallowed place where trials must proceed with dignity ....” Illinois v. Allen, 397 U. S. 337, 351 (1970) (separate opinion of Douglas, J.).
See also N. Dorsen & L. Friedman, Disorder in the Court: Report of the Association of the Bar of the City of New York, Special Committee on Courtroom Conduct 10-23 (1973); Burger, The Necessity for Civility, 52 F. R. D. 211, 214-215 (1971).
“To allow the disruptive activities of a defendant ... to prevent his trial is to allow him to profit from his own wrong. The Constitution would protect none of us if it prevented the courts from acting to preserve the very processes that the Constitution itself prescribes.” Illinois v. Allen, supra, at 350 (Brennan, J., concurring).
More recently, in Mayberry v. Pennsylvania, supra, we again noted that a judge, when faced with the kind of conduct there at issue, “could, with propriety, have instantly acted, holding petitioner in contempt . . . 400 U. S., at 463. That the total punishment meted out during trial exceeds six months in jail or prison would not invalidate any of the convictions or sentences, for each contempt has been dealt with as a discrete and separate matter at a different point during the trial.
Ill
When the trial judge, however, postpones until after trial the final conviction and punishment of the accused or his lawyer for several or many acts of contempt committed during the trial, there is no overriding necessity for instant action to preserve order and no justification for dispensing with the ordinary rudiments of due process. Mayberry v. Pennsylvania, supra, at 463-464; Groppi v. Leslie, 404 U. S. 496, 499-507 (1972); Taylor v. Hayes, ante, at 497. Moreover, it is normally the trial judge who, in retrospect, determines which and how many acts of contempt the citation will cover. It is also he or, as is the case here, another judge who will determine guilt or innocence absent a jury, who will impose the sentences and who will determine whether they will run consecutively or concurrently. In the context of the post-verdict adjudication of various acts of contempt, it appears to us that there is posed the very likelihood of arbitrary action that the requirement of jury trial was intended to avoid or alleviate. Cf. ibid.
The jury-trial guarantee reflects “a profound judgment about the way in which law should be enforced and justice administered. A right to jury trial is granted to criminal defendants in order to prevent oppression by the Government.” Duncan v. Louisiana, 391 U. S., at 155 (footnote omitted). The Sixth Amendment represents a “deep commitment of the Nation to the right of jury trial in serious criminal cases as a defense against arbitrary law enforcement. ...” Id., at 156. Moreover,
“criminal contempt is a crime in every fundamental respect .... [I]n terms of those considerations which make the right to jury trial fundamental in criminal cases, there is no substantial difference between serious contempts and other serious crimes. Indeed, in contempt cases an even more compelling argument can be made for providing a right to jury trial as a protection against the arbitrary exercise of official power. Contemptuous conduct, though a public wrong, often strikes at the most vulnerable and human qualities of a judge’s temperament. Even when the contempt is not a direct insult to the court or the judge, it frequently represents a rejection of judicial authority, or an interference with the judicial process or with the duties of officers of the court.” Bloom v. Illinois, 391 U. S., at 201-202.
In the case before us, the original trial judge filed the contempt charges against these petitioners, while another judge tried them and imposed the sentences. Because the latter had the power to impose consecutive sentences, as he did here, guilt or innocence on the individual charges bore heavily on the ultimate sentence and was of critical importance. Here the contempts against each petitioner were tried seriatim in one proceeding, and the trial judge not only imposed a separate sentence for each contempt but also determined that the individual sentences were to run consecutively rather than concurrently, a ruling which necessarily extended the prison term to be served beyond that allowable for a petty criminal offense. As a result of this single proceeding, Codis-poti was sentenced to three years and three months for his seven contemptuous acts, Langnes to two years and eight months for his six contempts. In terms of the sentence imposed, which was obviously several times more than six months, each contemnor was tried for what was equivalent to a serious offense and was entitled to a jury trial.
We find unavailing respondent's contrary argument that petitioners’ contempts were separate offenses and that, because no more than a six months’ sentence was imposed for any single offense, each contempt was necessarily a petty offense triable without a jury. Notwithstanding respondent’s characterization of the proceeding, the salient fact remains that the contempts arose from a single trial, were charged by a single judge, and were tried in a single proceeding. The individual sentences imposed were then aggregated, one sentence taking account of the others and not beginning until the immediately preceding sentence had expired.
Neither are we impressed with the contention that today’s decision will provoke trial judges to punish summarily during trial rather than awaiting a calmer, more studied proceeding after trial and deliberating “in the cool reflection of subsequent events.” Yates v. United States, 355 U. S. 66, 76 (1957) (footnote omitted). Summary convictions during trial that are unwarranted by the facts will not be invulnerable to appellate review. Cf. Sacher v. United States, 343 U. S. 1, 9, 13 (1952).
Nor can we accept the trial court’s view that the question of petitioners’ guilt on the contempt charges had already been conclusively adjudicated in this Court. Our decision in Mayberry v. Pennsylvania, supra, although expressing strong condemnation of Mayberry’s conduct, which we reaffirm, did not purport to affirm Mayberry’s contempt conviction. On the contrary, the judgment affirming the conviction was vacated and a new trial required before a different judge who was to sit “in judgment on the conduct of petitioner as shown by the record.” 400 U. S., at 466.
The judgment of the Pennsylvania Supreme Court is reversed and the case remanded for further proceedings not inconsistent with this opinion.
So ordered
Part II of the opinion is joined only by Mr. Justice Douglas, Mr. Justice Brennan, and Mr. Justice Powell.
The seven contempts charged against Codispoti were:
“1. That while being tried by a jury before Albert A. Piok, J. on November 18, 1966, he, the defendant, accused the court of trying to protect the prison authorities by saying, ‘Are you trying to protect the prison authorities, Your Honor? Is that your reason?’
“2. That while on trial as aforesaid on November 29, 1966, he, the defendant, accused the court of kowtowing and railroading the defendant into life imprisonment by saying ‘. . . it is only because the defendants in this case will not sit still and be kowtowed and be railroaded into a life imprisonment.’
“3. That while on trial as aforesaid on November 30, 1966, he, the defendant, called the judge ‘Caesar’ and accused the court of misconduct by saying, ‘You’re trying to railroad us.’ and ‘. . . I have never come across such a tyrannical display of corruption in my life.’
“4. That while on trial as aforesaid on December 1, 1966, he, the defendant, addressed the Court in an insolent and derogatory manner by saying, ‘Are you going to tell me my codefendant is not crazy? You must be crazy to try me with him.’
“5. That while on trial as aforesaid on December 2, 1966, he, the defendant, accused the Court of criminal conspiracy between it and prison officials by saying, ‘I further intend to prove there is a conspiracy between the prison authorities and this Court.’
“6. That while on trial as aforesaid on December 8, 1966, he, the defendant, created a despicable scene and refused to continue with the calling of his witnesses unless the Court ordered a mistrial, and in general creating an uproar, such an uproar as to cause the termination of the trial.
“7. That while on trial as aforesaid on December 9, 1966, he, the defendant, by constant and boisterous and insolent conduct interrupted the Court in its attempts to charge the jury, thereby creating an atmosphere of utter confusion and chaos.” App. 33-34.
The six contempts charged against Langnes were:
“1. That while being tried by a jury before Albert A. Fiok, J. on November 28, 1966, he, the defendant, accused the court of conspiracy by saying, 'For the record, before he begins again, I want the record to show this is another proof of conspiracy between this Court and institution.’
“2. That while on trial as aforesaid on November 29, 1966, he, the defendant, threatened to blow the trial judge’s head off, by saying, Tf I have to blow your head off, that’s exactly what I’ll do. I don’t give a damn if its on the record or not. If I got to use force, I will. That’s what the hell I’m going to do.’
“3. That while on trial as aforesaid on December 1, 1966, he, the defendant, accused and threatened the court by saying, ‘Like I told you, you force this trial on me — you going to give me an illegal trial, I told you before what I was going to do to you, and I mean it. Now I refuse to go on with this trial if you are going to railroad me and badger my witnesses, force me to an unfair trial, that is exactly what I am going to do, punk. I’m going to blow your head off. You understand that?’
“4. That while on trial as aforesaid on December 5, 1966, he, the defendant, told the court to ‘Go to hell.’ and accused the court of misconduct by saying, ‘One reason, you obviously have gotten in contact with the local papers to sharpen the hatchet over the heads of the defendants accusing them of causing the taxpayers fifty grand which as a result gave this hearing a prejudicial atmosphere. I would like to state here for the record, and for the papers, if need be, it is not us that is costing the taxpayers money. It is you, Mr. Maroney, and the Commonwealth that is costing the taxpayers money.’
“5. That while on trial as aforesaid on December 5, 1966, he, the defendant, made scurrilous remarks to the court by saying, ‘For the record, I would like to state that as far as my personal opinion is concerned, communist Russia, communist China, and Cuba need men like you. I think wherever you came from you infiltrated the courts and the whole place might as well be communist Russia.’
“6. That while on trial as aforesaid on December 9, 1966, he, the defendant, threatened the life of the court by saying, ‘I object to what you did to my two codefendants and I swear on my mother’s name that I will keep my promise to you, the two threats I made. Don’t worry about me interrupting during your summation. I won’t even dignify these stinking proceedings, punk, go to hell, and I will shake hands in hell with you. I will be damned to you.’ Also, he, the defendant, said, 'You are a dead man, stone dead. Your Honor.’ ” App. 30-31.
The questions on which certiorari was granted were stated in the petition, as follows:
“1. Should petitioners receive cumulative sentences for contempt of court imposed at the end of a trial where the total effective sentence received must be used rather than the individual sentences in order to determine the seriousness of the contempt and thereby determine whether the accused should be afforded the right to a jury trial?
“2. Should the strong possibility of a substantial term of imprisonment require that an accused be afforded the right to a jury trial?”
In tracing the lineage of the six-month dividing line for purposes of ascertaining whether a jury trial is required under the Sixth Amendment, MR. Justice Rehnquist’s dissent implicitly questions the authenticity of this rule. Putting aside whether the “constitutional rule of Bloom” ever “evolved” into the present rule, it is sufficient to note that although only three Members of the Court explicitly embraced the six-month demarcation point in Baldwin v. New York, 399 U. S. 66 (1970), Mr. Justice Black and Mr. Justice Douglas concurred in the judgment. While reading the Sixth Amendment to require a jury trial for "all crimes,” they expressed the view that imprisonment for more than six months would certainly necessitate a jury trial. Five Members of the Court out of the eight participating therefore agreed that, at the very least, the Sixth Amendment requires a jury trial in all criminal prosecutions where the term of imprisonment authorized by statute exceeds six months.
My Brother Rehnquist submits that petitioners are not entitled to a jury trial because they were originally tried and convicted of contempt in 1966, two years before this Court’s decisions in Duncan v. Louisiana, 391 TJ. S. 145 (1968), and Bloom v. Illinois, 391 U. S. 194 (1968), which we held in DeStefano v. Woods, 392 U. S. 631 (1968), should receive only prospective application. His dissent finds further support for its conclusion in Jenkins v. Delaware, 395 U. S. 213 (1969), where the Court held that Miranda v. Arizona, 384 U. S. 436 (1966), did not apply to persons whose retrials had commenced after the date of the Miranda decision if their original trials had begun before that date. This view, however, represents a fundamental misreading of the reach of these decisions and their applicability to the peculiar circumstances of this case. DeStefano unmistakably stated that “we will not reverse state convictions for failure to grant jury trial where trials began prior to May 20, 1968, the date of this Court’s decisions in Duncan v. Louisiana and Bloom v. Illinois.” 392 U. S., at 635 (emphasis added). DeStefano did not exempt from the jury-trial requirement trials beginning after that date, and here petitioners’ convictions occurred in a trial that began over three and one-half years after the Duncan and Bloom decisions. The boundaries for the retroactive impact of Duncan and Bloom were advisedly established, for the jury-trial requirement, by definition, relates to trials, not to uncorrectable police conduct which occurred prior to trial and which, if illegal, would preclude the use of perhaps critical evidence gathered in reliance on then-existing law. Jenkins v. Delaware involved the latter considerations and has little bearing here.
“When constitutional rights turn on the resolution of a factual dispute we are duty bound to make an independent examination of the evidence in the record. See, e. g., Edwards v. South Carolina, 372 U. S. 229, 235; Blackburn v. Alabama, 361 U. S. 199, 205, n. 5.” Brookhart v. Janis, 384 U. S. 1, 4 n. 4 (1966).
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_stpolicy
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the interpretation of state or local law, executive order, administrative regulation, doctrine, or rule of procedure by the court favor the appellant?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. HARDING COLLEGE, Respondent.
No. 11850.
United States Court of Appeals, Sixth Circuit.
Dec. 3, 1953.
A. Norman Somers, Asst. Gen. Counsel, Washington, D. C., John F. Lebus, Regional Director, New Orleans, La., George J. Bott, Gen. Counsel, David P. Findling, Assoc. Gen. Counsel, and Ows-ley Vose and Robert H. Hurt, Attys. for the National Labor Relations Board, Washington, D. C., for petitioner.
Before SIMONS, Chief Judge, and! ALLEN and MILLER, Circuit Judges.
PER CURIAM.
This case came on to be heard upon the record and briefs and oral argument of counsel;
And it appearing that the answer to the complaint herein admitted ownership and operation of WHBQ Radio Station by Harding College;
And it appearing by the uncontradict-ed testimony that respondent Harding College exercises complete control over WHBQ Radio Station;
And it appearing that any objection as to the service of the complaint was. waived by the participation of the respondent Harding College in the proceedings and in its argument to the Board;
And it appearing that the findings of the Board as to the existence of the unfair labor practices charged are supported by substantial evidence on the record considered as a whole;
It is ordered that the order of the Board entered June 26,1952, be enforced.
Question: Did the interpretation of state or local law, executive order, administrative regulation, doctrine, or rule of procedure by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_genapel1
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant.
FLINT RIVER & N. E. R. CO. v. MELLON, Director General of Railroads, etc.
Court of Appeals of District of Columbia.
Submitted December 5, 1927.
Decided February 6, 1928.
No. 4570.
1. Railroads <@=>51/2.(23) — Actions under Transportation Act must be brought against presidential agent (Transportation Act 1920 [49 USCA § 71 et seq.]).
Actions which may be brought under Transportation Act 1920 (49 USCA § 71 et seq. [Comp. St. § 10071% et seq.]) must be brought against the agent designated by the President.
2. United States <S=»I25(2) — Actions under Transportation Act against presidential agent are in legal effect against United States (Transportation Act 1920 [49 USCA § 71 et seq.]).
Actions under Transportation Act 1920 (49 USCA § 71 et seq. [Comp. St. § 10071%.et seq.]) against the agent designated by the President, are in legal effect against the United States.
3. United States <@=> 125(1) — Congressional consent is essential to sue United States.
The consent of Congress is essential to the right to maintain a suit against the United States.
4. United States <@=>125(I) — Statute authorizing suit against United States must be strictly followed.
The letter of the statute conferring the right to sue the United States must be strictly followed.
5. Railroads <®=>5!/£>-(20) — Presidential agent can be sued only under statute creating office (Transportation Act 1920, § 206 [49 USCA § 74]).
The agent for the President of the United States cannot be sued as such, except under provisions of Transportation Act 1920, § 206 (49 USCA § 74 [Comp. St. § KHWl^ce]), creating the office of such agent.
6. Railroads <@=5i/2,(20) — Suit against presidential agent to reform contract with Director General, so as to permit reimbursement of deficits during federal control, held not proceeding. beyond restrictions of Transportation Act, to correct administrative act (Federal Control Act [Comp. St. §§ 3ll5%a~ 31153/ip]; Transportation Act 1920, §§ 204, 206 [49 USCA §§ 73, 74]).
Suit by railroad company against presidential agent to modify or reform contract of Director General, appointed under President’s proclamation (40 Stat. 1733), to make specified division of rates, etc., on condition that railroad company accept terms of Federal Control Act (Comp. St. §§ 3115%a-3115%p), so as to permit reimbursement of deficits during federal control under Transportation Act 1920, § 204 (49 USCA § 73 [Comp. St. §
10071%bbb]), held not a proceeding to correct administrative act of Director General by analogy to suit to enjoin administrative official from doing ultra vires or illegal act, or mandamus to require him to conform to statutory mandate, so as to avoid restrictions of section 206 (49 USCA § 74 [Oomp. St. § 10071]4ec]), as to causes of action against such agent.
7. Railroads <@=>5!/2i(20) — No action, not specifically authorized by statute, lies against purely administrative officer, such as presidential agent, for equitable reformation of contract to which United States 'is party (Transportation Act 1920, § 206 [49 USCA § 74]).
In absence of specific statutory authority, no action will lie against a purely administrative officer, such as presidential agent, provided for by Transportation Act 1920, § 206 (49 USCA § 74 [Comp. St. § 10071%cc]), to enforce an equitable reformation of a contract to whieh the United States is a party.
8. Railroads <@=>5i/2i(20) — Petition to reform contract with Director Genera!, so as to permit reimbursement of deficits during federal control, must be denied, because of remedy under Federal Control Act (Transportation Act 1920, § 204 [49 USCA § 73]; Federal Control Act, § 3 [Comp. St. § 3115%t>]). •
Railroad company’s petition for reformation of contract with Director General of Railroads, appointed under President’s proclamation (40 Stat. 1733), so as to permit reimbursement of deficits during federal control, under Transportation Act 1920, § 204 (49 USCA § 73 [Comp. St. § 10071%bbb]), must be denied in view of provision for remedy under Federal Control Aet, § 3 (Comp. St. § 3115%c), through board of referees and Court of Claims, in event of adverse finding by Interstate Commerce Commission.
Appeal from the Supreme Court of the District of Columbia.
Suit by the Flint River & Northeastern Railroad Company against A. W. Mellon, Director General of Railroads, as Agent for the President of the United States. From a decree of, dismissal, plaintiff appeals.
Affirmed.
M. C. Elliott, and G. H. Parker, both of Washington, D. C., for appellant.
A. M. Bull, of Washington, D. C., for appellee.
Before MARTIN, Chief Justice, and ROBB and VAN ORSDEL, Associate Justices.
VAN ORSDEL, Associate Justice.
Appellant, plaintiff below, filed a bill in equity in the Supreme Court of the District of Columbia, praying for the modification or reformation of a contract entered into by the parties to this suit, whieh plaintiff claims was executed under mutual mistakes of law and fact. From a decree dismissing plaintiff’s bill, the ease comes here on appeal.
It appears that the President of the United States took over by proclamation the operation of certain of the railroad systems of the country on December 27, 1917. A Director General was appointed to operate the railroads under government. control. 40 Stat. 1733. By the Aet of Congress of March 21, 1918, 40 Stat. 451 (Comp. St. §§ 3115%a-3115 /ip), known as the Federal Control Act, provision was made for compensation of the railway companies for the use of their properties. By section 204 of the Aet of February 28, 1920, 41 Stat. 456, known as the Transportation Aet (49 USCA § 73 [Comp. St. §' 1007114-bbb]), provision was made for reimbursement of deficits during federal control of 'railroads which had not been in fact operated by the government. The aet provided, however, that these computations should be made by the Interstate Commerce Commission upon application of the railway companies.
Pursuant to the authority vested in him, the Director General of Railroads, “acting on behalf of the United States and the President,” entered into the contract here in question with plaintiff, dated May 7, 1919. This contract is similar to the contracts entered into with various short line companies over whieh the control was relinquished on June 29, 1918, and whieh were no longer entitled to compensation under the Federal Control Aet. The Director General, in brief, contracted with these companies to make a specified division of rates, fares, and charges for services performed and to make an equitable allotment of cars. As a condition of entering into the contract, it was provided that “the company accepts the terms and conditions of said Federal Control Aet, and the terms of this agreement, and expressly accepts 'the covenants and obligations of the Director General in this agreement set out, and the rights arising thereunder, in full adjustment, settlement, satisfaction, and discharge of any and all claims and rights, at law or in equity, which it now has or hereafter can have against the United States, the President, the Director General, or any agent or agency thereof, by virtue of anything done or omitted, pursuant to the acts-of Congress herein referred to.”
The following provision also appears in the contract: “In view of the foregoing covenants and agreement, and such thereto, the order of relinquishment issued on the 29th day of June, 1918, is hereby rescinded and set aside as of the date when the same was issued; and the said railroad and the properties herein described are hereby brought fully within the terms and under the control of the said Federal Control Act, the same in all respects as if the said order of relinquishment had not been issued. This contract shall become and be effective as of April 1, 1918, with the same effect as if it had been executed and delivered on said date.”
Plaintiff applied to the Interstate Commerce Commission for reimbursement under section 204 of the Transportation Act. The Commission in effect held that during the first six months of 1918, plaintiff’s railroad was under federal control, and as such was not entitled to any reimbursement for that time, but issued a certificate to the Secretary of the Treasury covering the remaining period.1 Deficit Settlement with Flint River & Northeastern R. R., 82 Interst. Com. Com’n R. 387. In the present suit, plaintiff asks that the contract “be rescinded, or be construed, and so far as may be necessary modified or reformed, so as to express the intention of the parties.” The contract, it is urged, because of mutual mistakes of law and fact, has operated to prevent the plaintiff from securing compensation to which it claims it is entitled under the Federal Control Act, and also to prevent reimbursement under section 204 of the Transportation Act. This would involve necessarily a determination of the question as to whether or not plaintiff’s railroad was privately operated or was under federal control during the first half of the year 1918. It is apparent that the case was disposed of in the court below upon the question of jurisdiction, to which the motion of defendant to dismiss the bill was chiefly directed.
It is settled law that actions which may be brought under the Transportation Act must be brought against the agent designated by the President, and that such actions are in legal effect against the United States. Dupont De Nemours & Co. v. Davis, 264 U. S. 456, 462, 44 S. Ct. 364, 68 L. Ed. 788. It is also true that the-consent of Congress is essential to the right to maintain a suit against the United States, and the letter of the statute conferring that right must be strictly followed. Price v. United States, 174 U. S. 373, 375, 19 S. Ct. 765, 43 L. Ed. 1011; United States ex rel. Rauch v. Davis, 56 App. D. C. 46, 8 F.(2d) 907.
The defendant in the present case, and the person summoned, is “A. W. Mellon, Director General of Railroads, as Agent for the President of the United States.” The office of agent is created by section 206 of the Transportation Act (49 USCA § 74 [Comp. St. §' 10071]4ee]), and it follows that the agent cannot be sued as such, except under the provisions of that section. Section 206 provides: “Actions at law, suits in equity and proceedings in admiralty, based on causes of action arising out of the possession, use, or operation by the President of the railroad or system of transportation of any carrier (under the provisions of the Federal' Control Act, or of the Act of August 29, 1916) of such character as prior to federal control could have been brought against such carrier, may, after the termination of federal control, be brought against an agent designated by the President for such purpose.” The record discloses, however, that plaintiff disclaimed in the court below that this suit was brought under section 206 of the Transportation Act. This of itself is sufficient to dispose of the question of jurisdiction, since only under that section can suit be brought against the agent of the President.
Counsel for plaintiff, in ' their .brief, seek to avoid the restrictions of the above statute on the theory that this “is a proceeding to correct an administrative act of the Director General, acting as agent for the President, made under mistakes of fact and law. It is somewhat similar in character to a suit to enjoin an administrative official from doing an ultra vires or illegal act, or a suit to mandamus an administrative official to require him to conform to some statutory mandate.” But we think this analogy is incorrect, since it is not here sought to restrain the Director General, as agent, from performing an illegal act, nor is it sought to require him to conform to a statutory mandate. If the right to sue the-agent was not exclusively limited to the specific causes of action stated in section 206 of the Transportation Act, we know of no instance where action would lie against a purely administrative officer, in the absence of specific statutory authority, to enforce an equitable reformation of a contract to which the United States is a party.
But a more substantial reason for-denying plaintiff’s petition is found in section 204 of the Transportation Act, under which plaintiff may secure reimbursement, and, in the event of an adverse finding by the Interstate Commerce Commission, a remedy is provided under the Federal Control Act (40 Stat. 454 [Comp. St. § 3115%e]), through the board of referees and the Court of Claims. The mere fact that the Director General refuses to recognize plaintiff as entitled to the benefits of the Federal Control Act, on the ground that its railway was not operated by him, and the Interstate Commerce Commission refuses to recognize its claims on the ground that its railway was privately operated during the federal control period,’ present matters subject to adjudication in a proceeding under the Federal Control Act.
The decree is affirmed, with coste.
Question: What is the nature of the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_respond2_1_2
|
D
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained".
OREGON-WASHINGTON BRIDGE CO. v. THE LEW RUSSELL, Sr. et al.
No. 13051.
United States Court of Appeals Ninth Circuit.
May 6, 1952.
Gray & Lister and H. Lawrence Lister, Portland, Or., for appellant.
Wood, Matthiessen & Wood, Erskine Wood and Lofton L. Tatum, Portland, Or., for appellees, The Lew Russell, Sr. and her owner, Russell Towboat & Moorage Co.
Thomas J. White, and William F. White, Portland, Or., for appellees, Crane Barge Ño. 25, and her owner, Russell Family, Inc.
Before DENMAN, Chief Judge, and BONE and POPE, Circuit Judges.
DENMAN, Chief Judge.
This appeal is taken by the libelant, Oregon-Washington Bridge Company, from a decree in admiralty that its libel against the respondents, Russell Towboat and Moorage Company and Russell Family, Inc., be dismissed and that the respondent, Russell Family, Inc., which had filed an intervening libel, recover from the libelant the sum of $3,306.11 for injury to a crane belonging to Russell Family, Inc. The libelant is owner of a bridge crossing the Columbia River at Hood River, Oregon; the respondent Russell Towboat and Moor-age Company is claimant of the tug, “Lew Russell, Sr.”; and the respondent Russell Family, Inc. is claimant of Crane Barge No: 25 and intervening libelant against the Bridge Company. The appellant contends that the district court erred in holding that libelant’s negligence was the cause of the damage resulting from the collision of the tug and barge with the bridge, and that the respondents were not negligent.
The Hood River bridge was opened in 1924. It had no lift span originally, but when Bonneville Dam was built a few miles downstream, the level of the Columbia River was raised to such an extent that it became necessary to have a lift span. Such was built in 1940 under the direction of the War Department and at federal expense. At the center of this span was a light which turned red when the span started to lift and which- turned green when the span readied its maximum height. An air whistle operated by electric motor was also installed on the bridge. The bridge tender’s house was just north of the lift span and about 25 feet above the roadway.
Regulations of the War Department required twelve hours’ notice to the bridge tender from any river craft which could not pass under the bridge at its normal position. The call for the opening of the span when the craft was in position to pass was one long, two short and one long blast. The twelve hours’ notice for an 8:30 A. M. passage was given by the tug; but the tug did not arrive at the appointed hour. Three hours later, the bridge tender spotted it moving upstream, called an electrician to stand by, and proceeded to raise the span without a signal from the tug.
When the span had risen 13% feet from the roadway, the electric power supplied by a Public Utility District failed through no fault of the bridge. The air whistle supplied from this same source of electric energy also failed as did the red light at the center of the span. The bridge tender rushed out of his control tower 25 feet above the roadway and shouted and waved to the tug which by this time had begun to approach the bridge on the assumption that the lift span had been raised to the correct height by the tender. The warning was not observed by the pilot of the tug.
As the tug approached the bridge, it was pushing a gravel barge directly ahead of it and Crane Barge No. 25 forward and starboard of the tug. The crane barge was 200 feet long and it was carrying a crane welded to its deck about 50 feet from the stern. A boom 110 feet long extended upward and forward from the crane and it was loaded with a small L.C.M. When the tip of the boom was about 25 feet from the bridge, the pilot realized that it was about 3 feet short of clearance under the lift span. He reversed his engine, too late to prevent the impact, and it is alleged that the bridge was damaged to the extent of some $30,000.
The district court held that the bridge was negligent in not maintaining an emergency or auxiliary signaling device which would operate independently of the power source which supplied the lift span itself. We agree with the court’s conclusion. The bridge is required to exercise due care under the circumstances; and it is undisputed that the electric power supply to the bridge had failed at least twice in the preceding one and one-half years. The district court found that it had failed at least three times previously. With this experience in mind, a prudent bridge owner would have realized that his signaling whistle would fail if power to the lift span failed and would have taken steps to secure an auxiliary device.
The libelant makes several attacks on this conclusion that the standard of due care required an auxiliary signal. The first is that there is no proof that a whistle would have been heard if one were available. This is the same kind of problem that faced the court in The T. J. Hooper, 2 Cir., 60 F.2d 737, where Judge Learned Hand held that ocean-going tugs would have to be ■equipped with wireless receiving sets in order to discharge their duty of seaworthiness. It was guesswork to some extent for him to say that if tire tugs in that case had carried wireless, the damage caused by storm could have been averted. The wireless might have failed, as • indeed private radio receiving sets aboard the tugs 'had, or the tug masters might not have believed weather warnings received on the wireless. ■In our case, it was shown that other bridges crossing the Willamette River had auxiliary warning devices which were commonly used. Since it was also testified that the tug could have stopped in one-half the length of its tow, or about 100 feet, a warning whistle at rather short quarters would have turned the trick. In any event, there is no reason to suppose that the district court specifically required a whistle as the auxiliary warning. It did not say so; and the regulations of the War Department applied to this bridge subsequent to the accident have specified a red flag as the auxiliary warning device, rather than a whistle.
No provision was made in the regulations by the War Department for auxiliary warning devices at the time of the collision. Complete fulfillment of these regulations by the bridge operator does not meet the standard of care in this case, however. The regulations of the War Department do not purport to set the ultimate standard of care in civil actions; and in the absence of a preemption of this function by the department, the courts must determine the standard of care in this civil action. The emphasis of the regulations is upon the action of the bridge operator in preventing the bridge from being an obstruction to navigation.
The lift span was seldom required to be raised for the passage of river craft and the libelant argues that the possibility of a power failure during the raising of the lift span was remote. This is true as a matter of probability; but it cannot be gainsaid that such an occurrence was shown to be a foreseeable event because of the past experience with power failures on this particular bridge. Sine© a slight act on the part of the bridge operator was necessary to prepare for this forseeable although improbable happening, the bridge operator was negligent in not doing that act.
The libelant argues that neglect of the tug and barge also contributed to the damage because the tug (1) should not have proceeded after the lift span stopped on the assumption that it was high enough, but should have awaited -the bridge’s affirmative signal to proceed, and (2) should -have had a lookout other than the pilot.
The tug did not give the signal to open which was prescribed by the regulations, but this was immaterial here since the lift span was raised without a signal. Having observed the raising of the lift span and its stopping, the tug pilot was entitled to assume that the bridge was ready for the tug’s passage, in the absence of any circumstances to warn him of the danger. The Louise Rugge, 3 Cir., 234 F. 768; The Kard, 3 Cir., 38 F.2d 844, 848. This is like the case where a tug has given a signal to open and may then assume in the absence of a warning to the contrary that the draw bridge will be timely opened. Clement v. Metropolitan West Side El. R. Co., 7 Cir., 123 F. 271. The rule is not changed here because the bridge was in the custom of giving a blast to proceed. The testimony on the existence of this custom on the part of the bridge is in the record; but in any event there is no evidence that the custom was communicated to the Columbia River craft and indeed there is testimony by the libelant’s witness that he had no knowledge of any notice of the custom being given to the Columbia River craft. Consequently, the tug was not required to wait for an affirmative signal to proceed.
The captain of the tug was standing alongside and 7 feet below the pilot watching the approach to the bridge. The appellant charges negligence in failing to have a lookout at the bow of the barge carrying the uplifted crane. If a lookout at the bow could have observed the danger sooner than the pilot and the tug’s captain, then the tug would probably be at fault. As the Supreme Court said in British Columbia v. Mylroie, 259 U.S. 1, 7, 42 S.Ct. 430, 432, 66 L.Ed. 807, “The duty of'the lookout is of the highest importance. Upon nothing else does the safety of those concerned so much depend.” That case also involved the striking of a fixed thing, land, and is more apposite to our case than other cases cited to us which deal with navigation on the open sea or collision between moving vessels. In the Mylroie case, the tug was proceeding through foul weather and off its course without a lookout, and it is clear that a lookout in the bow would have sighted land sooner than the pilot whose vision was obscured by a dirty coal smoke. Furthermore, the vessel was apprised of danger and knew that it was faced with an emergency situation.
In our case, we have no caution bom of danger brought home to the crew of the tug. Their approach to this bridge was like dozens of others previously made. The pilot was in the pilot house in the bow of the tug about 25 feet above the level of the water. Directly ahead of the tug was a loaded gravel barge and to the starboard and forward of the tug was Crane Barge 25. The total length of the tug and tow was about 265 feet. The pilot of the tug testified that to bring them to- a dead stop, it required half the length of the tow. The end of the crane was 3 feet above the lower side of the lift and a few feet ahead of and 70 feet above the bow of the barge. A lookout could not have determined the 3-foot difference until just before the moment of impact, certainly not until nearly the end of the 100 feet of stopping distance. A lookout would not have improved the situation. The Catalina, D.C.S.D.Cal., 18 F.Supp. 461; cf. The Blue Jacket v. Tacoma Mill Co., 144 U.S. 371, 12 S.Ct. 711, 36 L.Ed. 469; The Nacoochee, 137 U.S. 330, 11 S.Ct. 122, 34 L.Ed. 687.
The decree is affirmed.
Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business?
A. local
B. neither local nor national
C. national or multi-national
D. not ascertained
Answer:
|
songer_state
|
34
|
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".
James Franklin REEVES, Appellee, v. Amos E. REED, Appellant.
No. 78-6278.
United States Court of Appeals, Fourth Circuit.
Argued Jan. 11, 1979.
Decided April 19, 1979.
Joan H. Byers, Associate Atty. Gen. (Rufus L. Edmisten, Atty. Gen. of North Carolina, Richard N. League, Asst. Atty. Gen., Raleigh, N. C., on brief), for appellant.
Norman B. Smith, Greensboro, N. C. (Smith, Patterson, Follín, Curtis, James & Harkavy, Greensboro, N. C., on brief), for appellee.
Before HAYNSWORTH, Chief Judge, and WIDENER and HALL, Circuit Judges.
PER CURIAM:
Reeves successfully attacked his 1976 conviction for voluntary manslaughter in a ha-beas corpus proceeding before the district court. The court found that defective jury instructions at trial improperly placed the burden of proof upon Reeves, depriving him of due process. 452 F.Supp. 783 (W.D.N.C. 1978). The court granted relief and ordered a new trial. We reverse, for we think the jury charge, when viewed in its entirety, correctly and adequately placed the burden of proof upon the state and not upon defendant Reeves.
I.
Reeves shot and killed Billy Edward Chasteen during the early morning hours of December 3, 1974. The two men, with several other friends, were playing cards at a home owned by Reeves. Chasteen was apparently in an unusually combative and disagreeable mood that night, although there was no evidence of ill feelings between Reeves and Chasteen prior to the shooting. Chasteen argued with Robert Johnson early in the evening, and later assaulted Johnson, cutting him on the neck with a razor.
In addition to his razor, Chasteen had a loaded shotgun at the party. He had brought the weapon inside the house because he could not lock it in his car. For no apparent reason, at around 3:00 a. m., Chasteen seized the shotgun and ordered the people present to lie upon the floor. Chasteen told his companion, Warren, to hold the gun on the group because he intended to cut their throats with the razor. Johnson immediately charged Chasteen with a chair, hitting him in the chest with its legs. Chasteen retaliated by clubbing Johnson over the head with the shotgun barrel, inflicting a large wound and dazing Johnson. After fighting Johnson, Chasteen was shot by Reeves with a .38 caliber pistol from close range. According to the state’s evidence, Chasteen dropped his shotgun during, or immediately after, the fight with Johnson, and was unarmed when killed by Reeves. According to Reeves, Chasteen turned the gun on him after beating off Johnson and started to attack when he fired in self-defense. Police officers found Chasteen holding the shotgun.
In 1976 the state brought Reeves to trial on charges of second degree murder. N.C. Gen.Stat. § 14-17. At the conclusion of the trial, the judge charged the jury concerning both second-degree murder and voluntary manslaughter. The jury convicted Reeves of the lesser offense of voluntary manslaughter, N.C.Gen.Stat. § 14-18, and he received the maximum sentence of twenty years imprisonment. In defining the two crimes for the jury, the judge gave the following instruction:
If the State proves beyond a reasonable doubt or it is admitted that the defendant intentionally killed Billy Edward Chasteen with a deadly weapon, or intentionally inflicted a wound upon Billy Edward Chasteen with a deadly weapon, which proximately caused his death, then if no other evidence is presented, the law implies first, that the killing was unlawful and second, that it was done with malice and if nothing else appears, the defendant would be guilty of second degree murder.
Reeves gained habeas relief based upon this instruction. Reeves argued the charge denied him due process because it told the jury that despite the evidence of self-defense, an implication or presumption arose from the shooting of Chasteen that the killing was unlawful, thus placing the burden of proof upon him to negate the presumption and prove self-defense. Because unlawfulness is a necessary ingredient of voluntary manslaughter under North Carolina law, Reeves claimed the charge and its presumption violated the rule of Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), that the state must prove every fact necessary to constitute the crime. Reeves also claimed the presumption violated due process and that a presumed legal fact, here unlawfulness, must be proved beyond a reasonable doubt to follow from an admitted fact, here the intentional wounding of Chasteen with a deadly weapon, to withstand constitutional analysis. The district court agreed with Reeves that the charge placed an illegal burden upon him to disprove unlawfulness, and granted a new trial based upon both grounds.
II.
In reviewing the charge given at Reeves’ trial, we must apply the settled rule “[that] ‘a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge.’ ” United States v. Park, 421 U.S. 658, 674, 95 S.Ct. 1903, 1912, 44 L.Ed.2d 489 (1975); Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973); see Henderson v. Kibbe, 431 U.S. 145,152 & n. 10, 97 S.Ct. 1730, 52 L.Ed.2d 203 (1977); Boyd v. United States, 271 U.S. 104, 107, 46 S.Ct. 442, 70 L.Ed. 857 (1926). Thus we must evaluate the charge in its entirety to determine if an error is present. The issue for determination on habeas is “whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process.” Cupp v. Naughten, supra; see Chance v. Garrison, 537 F.2d 1212, 1215 (4th Cir. 1976); Grundler v. North Carolina, 283 F.2d 798, 802 (4th Cir. 1960). These tests apply with equal force to Mullaney challenges such as Reeves’, where the inmate seeks to overturn his conviction by claiming the jury instructions improperly shifted the state’s burden of proof in violation of due process. E. g., Berrier v. Egeler, 583 F.2d 515, 518 (6th Cir. 1978); Halloweli v. Keve, 555 F.2d 103, 109-11 (3d Cir. 1977); United States ex rel. Castro v. Regan, 525 F.2d 1157, 1159 (3d Cir. 1975); Gagne v. Meachum, 460 F.Supp. 1213, 1217-18 (D.Mass.1978); Warlitner v. Weatherholtz, 447 F.Supp. 82, 86 (W.D.Va. 1977); see Porter v. Leeke, 457 F.Supp. 253, 258 (D.S.C.1978).
After careful review of the complete charge, we conclude that the trial judge’s instructions adequately explained the law of voluntary manslaughter and did not violate Reeves’ rights. The judge began by stating the function of the jury in the case and by defining the reasonable doubt standard. After summarizing the evidence, the judge defined the elements of second-degree murder and voluntary manslaughter. This discussion contains the challenged part of the charge. But the charge did not end there, and the judge proceeded to explain the defenses of provocation and self-defense. Regarding self-defense, the judge stated that “the burden, members of the jury, is on the State to prove beyond a reasonable doubt that the defendant did not act in self-defense.” (A. 19). In subsequent portions of the charge, the judge instructed that the state had to prove beyond a reasonable doubt the lack of justification or excuse to gain a conviction for voluntary manslaughter. (A. 20), In a supplemental charge delivered after the jury had started deliberation, the court again explained that self-defense would completely excuse Chasteen’s killing and that the state had to prove lack of self-defense to convict Reeves of voluntary manslaughter. (A. 22, 23, 24, 25).
The constitutional issues addressed below are not presented for adjudication in this case, because the charge as a whole was fair. The instructions repeatedly informed the jurors that to convict, the state must prove beyond a reasonable doubt that the killing of Chasteen was unlawful, meaning that Reeves did not kill in self-defense. Although the challenged portion of the charge might have been more precise, we do not think it placed the burden of proof upon Reeves to dispel a presumption of unlawfulness. The complete instruction adequately stated the applicable law, informed the jurors of the elements North Carolina had to establish to convict Reeves and placed no burden of persuasion on the defendant.
Because we find no constitutional infirmity in the charge, the judgment of the district court is reversed.
REVERSED.
. This segment of the charge is reprinted in 452 F.Supp. at 785.
. “Under our system of justice, when a defendant pleads not guilty he is not required to prove his innocence. He is presumed to be innocent. The State must prove to you, the Jury, that the defendant is guilty beyond a reasonable doubt. A reasonable doubt is a doubt based on reason and common sense arising out of some or all of the evidence that has been presented or a lack or insufficiency of the evidence as the case may be. Proof beyond a reasonable doubt is proof that fully satisfies or entirely convinces you, the Jury, of the defendant’s guilt.”
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_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.
J. Adams BRUCE, as President of Bruce’s Juices, Incorporated, Appellant, v. UNITED STATES of America, Appellee.
No. 20776.
United States Court of Appeals Fifth Circuit.
Oct. 6, 1965.
Rehearing Denied Nov. 4, 1965.
Morison Buck, Tampa, Fla., for appellant.
Arnold D. Levine, Spec. Asst. U. S. Atty., Tampa, Fla., for appellee.
Before TUTTLE, Chief Judge, JONES, Circuit Judge, and GROOMS, District Judge.
JONES, Circuit Judge:
The appellant, J. Adams Bruce, was convicted on all of the charges of a four count indictment of conspiracy to violate 49 U.S.C.A. § 121, and on all charges of a seventeen count mail fraud indictment. The cases were consolidated for trial.
The appellant was a major stockholder, the president and a director of Bruce’s Juices, Inc., which engaged in the processing and sale of citrus juices on an extensive scale throughout the United States and Canada. It operated a processing plant in Tampa, Florida, and maintained a warehouse at the plant and at other locations in the Tampa area. These warehouses were leased to Lee Terminal and Warehouse Corporation by Bruce’s Juices, Inc., and processed juices of the Bruce company were stored in the warehouses, and warehouse receipts were issued by Lee. In the four count case (district court No. 6600) warehouse receipts were procured through fraud and were exchanged for order bills of lading issued by a steamship company and purported to receipt for canned citrus juice for shipment to Montreal and. Toronto, Canada. The bills of lading, together with invoices and drafts, were negotiated with a St. Petersburg, Florida, bank and sums aggregating more than $22,000 were obtained from the bank. It subsequently developed that although the warehouse receipts and bills of lading called for 12,100 cases of citrus juices, the warehouses contained less than 1,700 cases. Bruce’s Juices was bankrupt and the steamship line was required to protect the bank against loss. In the seventeen count case (district court No. 6601) fraudulently issued warehouse receipts were attached to drafts payable to the First National Bank of St. Peters-burg, Florida, drawn on purchasers of the products described in the warehouse receipts. The drafts were handled by mail for collection. The appellant was sentenced to serve a year and a day on each count, with all sentences on both counts to run concurrently. Twelve specifications of error are assigned.
The court permitted the jury to take a copy of each of the indictments into the jury room. There was no objection to this being done and counsel at the trial for the appellant participated in a discussion with the court and Government counsel as to the effect of some underscoring which the court instructed the jury to ignore. On the appeal with the appellant being represented by other counsel, it is contended that error was committed in permitting the jury to have the indictment during its deliberations. In making the point, the appellant relies upon the decision of this court in Getchell v. United States, 5 Cir., 282 F.2d 681. The Getchell case is not a departure from the general rule that the trial court may, in the exercise of discretion, allow the indictmént to be taken into the jury room. In the Getchell case, the trial court recognized the prejudicial character of the language in which the indictment was framed and declined to permit it to go to the jury. This Court recognized the propriety of its action. In this case, we find no prejudice to the appellant resulting from the allowing of the indictments to go with the jury, and no abuse of discretion in permitting it to be done.
The indictments were returned early in 1956. The acts which the Government charged as criminal offenses took place in the summer of 1952. The cases were tried in June 1963. The appellant makes the contention that he has been denied his constitutional right to a speedy trial, that his witnesses have died and the memory of those who have lived has become dimmer and that he has been prejudiced by the delay. This, he says, is true notwithstanding that he took no action to require the case against him to be brought on for trial. The appellant contends that there was an unreasonable delay both in the interval between the commission of the offenses and the indictment, and the lapse of time between the indictment and the trial. The right to a speedy trial, guaranteed by the Sixth Amendment and implemented by Rule 48(b), Fed.Rules Crim.Proc. 18 U.S.C.A., does not arise until there has been an indictment or information, as the applicable statute of limitations is controlling as to the time within which an indictment or information must be brought. Harlow v. United States, 5th Cir. 1962, 301 F.2d 361, cert. den. 371 U.S. 814, 83 S.Ct. 25, 9 L.Ed.2d 56, reh. den. 371 U.S. 906, 83 S.Ct. 204, 9 L.Ed.2d 167. The appellant claims prejudice to his defense because of the dimmed memory of the witnesses after so great a lapse of time. That this is so may be doubted, as the memories of the witnesses for the prosecution may be no better than those of the defense. We have no difficulty in agreeing with the appellant that a seven year delay in bringing a case on for trial is unreasonable and unnecessary. But this does not, under the facts here present, require a reversal and a dismissal of the charges. The appellant could have asserted his right to a speedy trial by motion and perhaps by other procedural action. He did not do so. By not doing so he waived his right and cannot be heard to assert it after he has been tried and convicted. Harlow v. United States, supra.
In the mail fraud case, it is asserted by the appellant that his motion to acquit should have been granted because the use of the mails occurred subsequent to the execution of the scheme. The drafts were drawn and credit for them was given by the St. Petersburg bank and after the credit had been given the drafts were transmitted through the mails for presentation to the drawee. Attached to the drafts were warehouse receipts which purported to represent citrus juices in storage. The fraud, if any there was, says the appellant, had been perpetrated before there was any use of the mails and that the mails were thereafter used by the bank which was a stranger to the fraud. The using of the mails, says the appellant, was for the convenience of the bank and was not employed by or even contemplated by the appellant. But such is not the situation here. The drafts, with the spurious warehouse receipts, were turned over to the bank. The drafts were drawn on firms and corporations • in other places. The bank’s function was to collect or attempt to collect the drafts. Collection items on distant points are frequently and perhaps usually forwarded by mail. The use of the mails should have been contemplated as a material part of the fraudulent scheme. The appellant’s claim is without merit. Adams v. United States, 5th Cir. 1963, 312 F.2d 137.
Included in the evidence by which the Government sought to prove the first count of the mail fraud indictment were two warehouse receipts which had been mailed by the appellant to one of his associates. The appellant’s contention is that these particular warehouse receipts were transmitted only for the purpose of showing the form of document that would be used as security but that these were mere samples and were not themselves intended to be pledged. The Government contends that the only reason that they were not used as collateral was because the banks to which they were offered would not accept them. The evidence was such that the Government’s theory might have found acceptance with the jury, and no error was committed in admitting these documents in evidence.
As a part of its case the Government undertook to reconstruct an inventory. In so doing it offered in evidence a carbon copy of a letter signed by J. L. Parker. The letter was addressed to an accounting firm for its use in an audit of Bruce’s Juices then being made. The letter, Government’s Exhibit 29, incorporated an inventory as of March 31, 1951, showing the Bruce’s Juices products then on hand, including the goods in warehouse. Parker had been an employee of Bruce’s Juices for a good many years, serving in an executive capacity. He was also, at the time the letter was written, a bonded agent of the warehouse company. The appellant, invoking the so called best evidence rule, contends that the instrument tendered is a copy, and hence secondary evidence, which should not have been admitted without justifying the non-production of the original. We cannot adopt this view. The writing was signed, as was the other copy of it, by the person who prepared it. This retained copy, as well as the copy sent, is a counterpart or duplicate and as such is not subject to exclusion under the rule. The retained copy, Exhibit 29, was properly received in evidence. 4 Wigmore on Evidence 442 et seq., §§ 1232-1234.
The Government called to the stand as its witness, Harry E. Hurst, a certified public accountant. This witness attempted to reconstruct an inventory of the products of Bruce’s Juices as of the crucial date in 1952. He attempted to do so by using the information shown by Exhibit 29 as a starting point, adding the goods produced and deducting those shipped or delivered as shown by various documents in the records and files of the company. Hurst made a running inventory of each of the products and these were marked for identification as Government Exhibits 30, 30A to 30M inclusive. They were offered as evidence but never admitted. Hurst also prepared, and the Government offered in evidence, a summary or recapitulation from the number 30 exhibits of the reconstructed inventory of all of the items. This summary was designated as Government’s Exhibit 49. In discussing with counsel the question of admitting the summaries prepared by Hurst, the court stated the rule as being that “both as to his [Hurst] testimony and as to the summary which is being offered in evidence in the form of an exhibit [Exhibit 49], there must either be in evidence or available here in the court room the basis on which this witness drew his conclusion because it is up to the jury to arrive at a conclusion, if they so find that he arrived at the conclusion- from the evidence.”
The records and files of Bruce’s Juices were very voluminous. Counsel for the Government offered to have the Marshal get a van and bring them in. The time arrived for the midday recess. Counsel for the appellant asked for some extra time so he could examine the Government’s summaries and look up some law. Shortly after the noon recess, the court asked counsel for the appellant,
“Are you satisfied with your examination of those [Exhibits 30, 30A-30M] or do you require that additional records be brought in or what is your position ?”
Counsel responded,
“Judge, I don’t have a position in that matter. I made my objections and I don’t care to add to them or make any argument on them. The burden is on the Government to make a proper showing.”
Exhibit 49 was admitted in evidence and properly so. Counsel for the appellant may have well said that “the burden is on^ the Government to make a proper showing.” But it might be as well said that a defendant may waive the making of such a showing. As this Court has said,
“The rule is that such a summary of books is admissible, provided cross-examination be allowed and the original records are available.” Greenhill v. United States, 5th Cir. 1962, 298 F.2d 405, cert. den. 371 U.S. 830, 83 S.Ct. 25, 9 L.Ed.2d 67, cert. den. 372 U.S. 968, 83 S.Ct. 1092, 10 L.Ed.2d 130, reh. den. 373 U.S. 947, 83 S.Ct. 1536, 10 L.Ed.2d 703.
The Government offered to produce the records in court if required. The appellant, whose counsel declined to take a position when expressly asked whether it was required that the records be brought in, waived the right to require that the records be brought in. The records were available; the Government could have produced them; the appellant did not require it to be done. No error was committed in admitting the summary.
The appellant asserts that error was committed by the district court in denying his motion for a directed acquittal on the ground that the unlawful acts were committed by corporate agents acting outside their authority. The contention is that although the appellant was the president and most influential officer of Bruce’s Juices, he would be subject to no criminal liability for the acts of other corporate agents unless the acts were committed by his command or with his consent. As announcing this principle, the appellant has cited the ease of United States v. Food and Grocery Bureau of Southern California, D.C.S.D.Cal. 1942, 43 F.Supp. 966. Sound as may be the principles stated in this opinion, they are of no help to the appellant. There is ample evidence, which the jury apparently believed, to support the inference that the appellant was a participant in the fraudulent scheme for the procurement of warehouse receipts which did not represent goods in storage and the use of such warehouse receipts as instruments of credit. The motion to dismiss was properly denied.
By three separate specifications of error, the appellant urges that there was no competent evidence to establish the appellant’s guilt in the conspiracy case. We do not think it would serve a useful purpose to outline this testimony. It is sufficient to say that the evidence was adequate to carry the case to the jury and the jury’s verdict is fully supported by the record. There are other assignments of error going to the admission of evidence and the giving of instructions. We do not find merit in any of these contentions and a discussion of them would not serve to illustrate any principle of law.
The appellant had a fair trial. The verdict was supported by the evidence. No error has been made to appear. The judgments and sentence of the district court in the consolidated causes are
Affirmed.
. Any person who, knowingly or with intent to defraud, falsely makes, alters, forges, counterfeits, prints or photographs any bill of lading purporting to represent goods received for shipment among the several States or with foreign nations, or with like intent utters or publishes as true and genuine any such falsely altered, forged, counterfeited, falsely printed or photographed bill of lading, knowing it to be falsely altered, forged, counterfeited, falsely printed or photographed, or aids in making, altering, forging, counterfeiting, printing or photographing, or uttering or publishing the same, or issues or aids in issuing or procuring the issue of, or negotiates or transfers for value a bill which contains a false statement as to the receipt of the goods, or as to any other matter, or who, with intent to defraud, violates, or fails to comply with, or aids in any violation of, or failure to comply with any provision of this chapter, shall be guilty of a misdemeanor, and, upon conviction, shall be punished for each offense by imprisonment not exceeding five years, or by a fine not exceeding §5,000, or both.
. Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, or to sell, dispose of, loan, exchange, alter, give away, distribute, supply, or furnish or procure for unlawful use any counterfeit or spurious coin, obligation, security, or other article, or anything represented to be or intimated or held out to be such counterfeit or spurious article, for the-purpose of executing such scheme or artifice or attempting so to do, places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Post Office Department, or takes or receives therefrom, any such matter or-thing, or knowingly causes to be delivered by mail according to the direction, thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, any such matter- or thing, shall be fined not more than $1,-000 or - imprisoned not more than five; years, or both. 18 U.S.C.A. § 1341.
Question: What is the total number of appellants in the case that fall into the category "fiduciaries"? Answer with a number.
Answer:
|
songer_casetyp1_7-3-1
|
C
|
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 - taxes, patents, copyright".
FREIHOFER BAKING CO. v. COMMISSIONER OF INTERNAL REVENUE.
No. 8867.
Circuit Court of Appeals, Third Circuit
Argued June 4, 1945.
Decided Sept. 6, 1945.
Floyd F. Toomey, of Washington, D. C. (Alvord & Alvord, of Washington, D. C. and Souser, Schumacker & Taylor, of Philadelphia, Pa., on the brief) for petitioner.
Mary Helen Wigle, of Washington, D. C. (Samuel O. Clark, Jr., Asst. Atty. Gen., S'ewall Key and Robert N. Anderson, Sp. Assts. to Atty. Gen., on the brief), for respondent.
Before BIGGS and MARTIN, Circuit Judges and KALODNER, District Judge.
KALODNER, District Judge.
The petitioning taxpayer seeks review of the decision of the Tax Court entered September 4, 1944, sustaining the Commissioner’s determination of deficiencies in the petitioner’s Income and Excess Profits tax for the year 1936 on the basis of including in the petitioner’s income for 1936 the sum of $246,021.55, which constituted a refund made to the petitioiier in 1936 as an adjustment of the cost of flour purchased by it in 1935.
The relevant statutes are set out in the margin. The facts as found by the Tax Court are as follows:
The Freihofer Baking Co. (hereinafter referred to as the petitioner) is a Pennsylvania corporation with principal offices in Philadelphia. Its books were kept and its income tax returns were filed on an accrual basis.
The refund in question was made to petitioner by the Freihofer Flour Mills (hereinafter referred to as the Mills), a copartnership organized by it and an affiliate corporation in 1927 as' a medium to assure them a constant and uniform supply of flour. The Mills likewise kept its books and filed its returns on an accrual basis.
During the year 1935, the Mills engaged in the processing of flour and feed products and was therefore, under the Agricultural Adjustment Act, subject to taxes on the first domestic processing of wheat. However, subsequent to April 30, 1935, the Mills refused to pay any further processing taxes, and, later in 1935, secured restraining orders prohibiting the Collector from assessing or collecting any such taxes, although on July 31, 1935, the Mills and the Collector entered into a depository agreement.
During the year 1935, the petitioner received substantially all its flour from the Mills. Pursuant to agreements between the petitioner and the Mills the flour was purchased on the basis of a temporary billing price which was adjusted at the end of the year to the basis of cost. Cost included the processing tax imposed but not paid and deposited in escrow.
In the period from May 1 to December 31, 1935, petitioner paid to the Mills, as part of the cost of flour, $246,021.55, this being the amount of processing taxes imposed on the flour purchased. This sum was deducted from gross income by petitioner on its original corporation income and excess profits tax return for 1935 as a part of the “cost of goods sold”.
On January 6, 1936, the United States Supreme Court held the taxing provisions of the Act unconstitutional in the case of United States v. Butler, 297 U.S. 1, 56 S.Ct. 312, 80 L.Ed. 477, 102 A.L.R. 914, and on January 16, 1936, the total amount of the depository account was returned to the Mills. In December of 1936 the Mills transferred to the petitioners the sum of $246,021.55.
On August 14, 1937, petitioner filed an amended corporation income and excess profits tax return for 1935, upon which there was reported, as additional income for that year, $246,021.55, the refund. An additional income tax in the amount of $32,418.94, shown to be due, was paid. On August 9, 1939, petitioner filed a claim for refund of income taxes for 1935 in the amount of $32,418.94.
The Tax Court held that the Commissioner correctly determined that the $246,-021.55 transferred to petitioner by the Mills in December, 1936, as reimbursement of processing taxes included in the cost of flour purchased by petitioner, was taxable income in the year 1936.
The sole question is whether this determination by the Tax Court is correct. Petitioner asserts that the Tax Court erred in its conclusion and in failing to determine whether the deduction taken in 1935 was an improper deduction. It is the position of petitioner that its liability for the tax in 1935 was contingent because there existed, either impliedly or expressly, a legal obligation on the part of the Mills to refund that part of the tax included in the cost of flour purchased by petitioner in the event the Mills successfully concluded its litigation against the Collector, and, since it developed in 1936 that the tax was unconstitutional, an appropriate adjustment must be made for the deduction taken in petitioner’s return for the year 1935.
This Court is of the opinion that the decision of the Tax Court should be affirmed. The applicable rule of law was clearly set out by the Supreme Court in the case of Security Flour Mills Co. v. Commissioner, 1944, 321 U.S. 281, 64 S.Ct. 596, 88 L.Ed. 725. There the Court stated, at page 286 of 321 U.S., at page 599 of 64 S.Ct., 88 L.Ed. 725: “The uniform result has been denial both to government and to taxpayer of the privilege of allocating income or outgo to a year other than the year of actual receipt or payment, or, applying the accrual basis, the year in which the right to receive, or the obligation to ‘pay, has become final and definite in amount.”
On the basis of that case, we held, in the case of Commissioner of Internal Revenue v. Blaine, Mackay, Lee Co., 3 Cir., 1944, 141 F.2d 201, 202, that reimbursements made by the processor-taxpayer to certain of its customers in 1936 and 1937 for the sums which it had received from them in 1935 to cover processing taxes were not deductible from the taxpayer’s gross income for 1935. It is a logical corollary that the recipient of the refund may not relate back to increase its taxable income for 1935 the refund it receives in a later year.
Since the year to which income is allocable is determined temporally according to when the right to receive becomes final and definite, it is clear, in the instant case, that the reimbursement to'petitioner constitutes income for the year 1936. Whether the Mills was under a legal obligation to make the refund is not decisive, for the refund, in any event, was contingent upon an event which did not occur until 1936. It was only upon the happening of this event that the petitioner’s right became definite and certain in amount. As the obligation of the Mills to pay petitioner did not become fixed until 1936, and as payment admittedly was received in that year, the receipt must constitute income to petitioner for that year.
Relying on the expression by the Supreme Court in the Security Flour Mills case, supra, 321 U.S. at page 284, 64 S.Ct. at page 597, 88 L.Ed. 725, that, “a taxpayer may not accrue an expense the amount of which is unsettled or the liability for which is contingent”, petitioner contends that its deduction of $246,021.55 in 1935 was improper for the reason that its liability was, in 1935, contingent.
On this matter, petitioner concedes that if the refund' in 1936 were a voluntary act on the part of the Mills, then there is no validity to its argument. But petitioner suggests that because of the temporary billing price arrangement or because of an alleged specific agreement with the Mills, the latter was under a pre-existing legal obligation to return (if the Mills’ litigation proved successful) the tax which was passed on to petitioner as costs in 1935; hence, petitioner’s liability for that amount in 1935 was contingent and not deductible.
On close analysis, the difficulty with peti.tioner’s theory becomes evident. The total tax of $246,021.55 was passed on to the petitioner not as a tax, but as an item of costs; petitioner paid this total amount to the Mills as part of the cost of the goods purchased and deducted it from gross income in 1935 as part of the cost of goods sold. The cost of the goods supplied to petitioner by the Mills, became, following proper adjustment of the temporary billing price at the end of the year, definite and final in amount in 1935. Petitioner' was clearly under a definite and certain obligation in 1935 to pay the Mills for the flour it procured at the established cost, and it made payments to satisfy this accrued obligation. Petitioner did not question at any time relevant herein its liability for the full cost of the flour purchased from the Mills.
True, the Mills was contesting a tax reflected in the cost of its goods to petitioner through which petitioner might secure a refund. Nevertheless, that could not make petitioner any less positively liable in 1935 for the cost of the flour sold to it by the Mills than petitioner would have been if the Mills was not so contesting the tax. The petitioner’s liability for the cost of the flour was not contingent in 1935 but on the contrary it was fixed. What was contingent was its right to recoup from the Mills. In simple terms, petitioner would not have been warranted in refusing to pay during 1935 the full cost of the flour as determined by the Mills merely because there was a possibility a refund would be made in a later year upon the happening of a particular event.
Undeniably the transactions here in controversy are intrinsically related, but it is evident, too, that petitioner here seeks to accomplish exactly that which the Supreme Court in the Security Flour Mills case, supra, 321 U.S. at page 287, 64 S.Ct. at page 599, 88 L.Ed. 725, refused to permit, that is, report income, “not of. a given year, but, in the light of ultimate gain, from a series of transactions over a period of years, growing out of, or in some way related to, an initial transaction in the taxable year.”
The ineluctable conclusion is that the deduction taken on its 1935 return for “cost of goods sold” was a proper deduction, and further, the refund to petitioner by the Mills in 1936 constitutes income for that year. The Tax Court was not in error.
Finally, although the matter was not seriously considered by either party, we are satisfied that the case of Dixie Pine Products Co. v. Commissioner, 1944, 320 U.S. 516, 64 S.Ct. 364, 88 L.Ed. 270, the Security Flour Mills case, supra, and the case of Bingham’s Trust v. Commissioner, 325 U.S. 365, 65 S.Ct. 1232, clearly disclose that because of .the grounds on which the Tax Court rested its decision, the doctrine limiting judicial review on appeal from Tax Court decisions contained in Dobson v. Commissioner, 1943, 320 U.S. 489, 64 S.Ct. 239, 88 L.Ed. 248, is here inapplicable. Cf. Commissioner v. Blaine, Mackay, Lee Co., supra; Cooperstown Corporation v. Commissioner, 3 Cir., 1944, 144 F.2d 693, certiorari denied, 1944, 323 U.S. 772, 65 S.Ct. 131.
For the reasons stated the decision of the Tax Court of the United States is affirmed.
Revenue Act of 1934, c. 277, 48 Stat. 680:
“See. 23. Deductions from Gross Income.
“In computing net income there shall be allowed as deductions:
“(a) Expenses. All the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business, * *
Revenue Act of 1936, c. 690, 49 Stat. 1648:
“Sec. 41. General Rule.
“The net income shall be computed upon the basis of the taxpayer’s annual accounting period * * * in accordance with the method of accounting regularly employed in keeping the books of such taxpayer ; * *
“Sec. 42. Period in Which Items of Gross Income Included.
“The amount of all items of gross income shall be included in the gross income for the taxable yeár in which received by the taxpayer, * *
“Sec. 43. Period for Which Deductions and Credits Taken.
“The deductions and credits (other than the dividends paid credit provided in section 27) provided for in this title shall be taken for the taxable year in which ‘paid or accrued’ or ‘paid or incurred’, dependent upon the method of accounting upon the basis of which the net income is computed, unless in order to clearly reflect the income the deductions or credits should be taken as of a different period. * '* * " 26 U.S.C.A. Int.Rev.Acts, page 671 and pages 838, 839.
Question: What is the specific issue in the case within the general category of "economic activity and regulation - taxes, patents, copyright"?
A. state or local tax
B. federal taxation - individual income tax (includes taxes of individuals, fiduciaries, & estates)
C. federal tax - business income tax (includes corporate and parnership)
D. federal tax - excess profits
E. federal estate and gift tax
F. federal tax - other
G. patents
H. copyrights
I. trademarks
J. trade secrets, personal intellectual property
Answer:
|
songer_counsel1
|
D
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the appellant. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
CADILLAC GAGE COMPANY, INC., Plaintiff-Appellant, v. INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, et al., Defendants-Appellees.
No. 74-2333.
United States Court of Appeals, Sixth Circuit.
May 23, 1975.
John A. Entenman, Dykema, Gossett, Spencer, Goodnow & Trigg, Detroit, Mich., for plaintiff-appellant.
John A. Fillion, Jordan Rossen, Edwin Fabre, Leonard R. Page, United Auto Workers, Detroit, Mich., Lawrence G. Campbell, Dickinson, Wright, McKean & Culdip, Detroit, Mich., for defendants-appellees.
Before WEICK, McCREE and MILLER, Circuit Judges.
.PER CURIAM.
This appeal is from an order of the District Court granting a motion for summary judgment enforcing the award of an arbitrator for the payment of benefits under Cadillac Gage Company’s pension plan to its employee, Robert E. Jerome, who became totally and permanently disabled.
Cadillac Gage had filed suit in the District Court under the provisions of § 301 of the Labor Management Relations Act, 29 U.S.C. § 185, to vacate the arbitrator’s award, claiming that the arbitrator in making his award acted in excess of his contractual authority and therefore the award was null and void. United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960); United Steelworkers v. American Mfg. Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960); United Steelworkers v. Warrior & Gulf Nav. Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960).
Prior to making application for his pension Jerome had applied for workmen’s compensation benefits under Michigan law, claiming that in the course of his employment he developed emphysema and other ailments which he attributed to the hazards of his employment. The arbitrator stated:
It is agreed by Company and Union that he became totally and permanently disabled.
The claim under the Workmen’s Compensation Act was settled by an Agreement to Redeem Liability, entered into between Jerome and Cadillac Gage, whereby Cadillac Gage agreed to make a lump sum payment to Jerome in the sum of $19,000, to redeem its potential liability under the Act. The agreement was approved by a Redemption Order entered by the Hearing Referee of the Workmen’s Compensation Commission. At the same time Jerome signed a Release and Waiver of Seniority, which provided:
Whereas Robert E. Jerome has filed a claim under the Workmen’s Compensation Act for injury alleged to have resulted from his employment, and whereas the employer, Cadillac Gage Co., has denied liability, the undersigned Robert E. Jerome, in consideration of a settlement of this claim through redemption proceedings with the Workmen’s Compensation Department, does hereby voluntarily quit his employment with the Cadillac Gage Co., waives any and all seniority rights he may have and releases any claim he may have for re-employment based on such seniority rights.
After the time for appeal from the Redemption Order of the Referee had expired, Cadillac Gage made payment of the sum of $19,000, which sum was distributed under the terms of the Order for the payment of medical bills, attorney’s fees and the balance to Jerome.
Following settlement of the Workmen’s Compensation claim Jerome applied to the company for a Total and Permanent Disability Pension, which application was transmitted to the Board of Administration of the Pension Plan. The function of the Board was to determine all disputes between the company and its employees over their pension claims. The Board consisted of three members appointed by the company and three members appointed by the International Union, and an Impartial Chairman or arbitrator in the event of disagreement of the other six Board members.
The company and union members became deadlocked over the question of allowance of the pension, and they agreed upon the Impartial Chairman or arbitrator to settle the dispute.
It was the position of the company that Jerome was no longer an employee of the company at the time he filed his application for a pension and that he waived all rights to a pension when he signed the Agreement to Redeem Liability for his Workmen’s Compensation benefits and the Release and Waiver of Seniority.
Article II, Section 4(a) of the Pension Plan provides in relevant part:
An employe who, subsequent to July 1, 1960, is determined to be totally and permanently disabled hereunder prior to attaining age 65, and who has at least 15 years of credited service, shall be eligible for a disability pension as hereinafter provided. .
Section 4(b) provides in part:
An employe shall be deemed to be totally and permanently disabled when, on the basis of medical evidence satisfactory to the Board, he is found to be wholly and permanently prevented from engaging in any regular occupation or employment .
The powers of the Board are contained in the Pension Plan which in part provided:
To make findings of facts and determinations as to the rights of any employe applying for retirement benefits, and to afford any such individual dissatisfied with any such finding or determination, the right to a hearing thereon.
The Board conducted hearings and adopted findings of fact and determinations as to the rights of Jerome. They are embodied in the written opinion of the Impartial Chairman or arbitrator. Essentially he found:
As Impartial Chairman, it appears to me that neither party has placed proper bearing on the one fulcrum on which decision must rest — the date upon which Jerome became eligible, if at all, for permanent and total disability pension. It was not on December 16. He had already waived his seniority rights on the first of that month. Nor was it December 1st. If he had any right to a disability pension, and I conclude that he did, it was on the date he suffered permanent and total disability. Note Section 4(a) of Article III: “An employee who ... is determined to be totally and permanently disabled hereunder prior to attaining age 65, and who has at least 15 years of credited service, shall be eligible for a disability pension,” (reduced to 10 years after September 1, 1961). Jerome, by the express language of this section, became eligible for á disability pension, not on December 1, not on December 16, but at the time he was “determined to be totally and permanently disabled.” The exact date may be indecisive, and certainly is not now susceptible of accurate ascertainment, but it had to occur before or during the progress of the proceedings in Workmen’s Compensation and thus before December 1, 1971. The Company so acknowledged at least tacitly when it entered into the Agreement of Redemption. It conceded as much during the hearings in this matter.
If it is accepted, as I believe it must, that Jerome’s eligibility for disability pension occurred at some such earlier period, then the dates of December 1 and 16, the waiver of re-employment rights, the waiver of seniority, the lack of Union representation, are all irrelevant to this issue. A waiver of disability pension may be effected after eligibility has occurred only by virtue of Section 5 of the 1966 Agreement Covering the Amended Pension Plan, entitled Suspension of Benefits at Option of Employee and then only if the employee should “request the Board of Administration in writing to suspend payment for any period of all or any part of such pension otherwise payable to him hereunder.” Needless to say, this was not done.
I find that Jerome became eligible for Permanent and Total Disability Pension prior to December 1, 1971 and that none of the documents signed by him in November and December, 1971 operated as a waiver of his right to such pension. As duly designated Impartial Chairman of the Board of Administration, I vote that Robert E. Jerome’s application for pension due to total and permanent disability retirement be approved, and that payment thereof be made in accordance with the terms and conditions of the Pension Plan as though approval had been voted at the meeting of the Boa,rd of Administration on January 21, 1972. Lacking precise data as to when the disability commenced, I vote that it be deemed, for purposes of this matter, to have commenced on November 26, 1971, the date of execution of the Agreement of Redemption. (A. 20-22)
The District Judge recognized that the arbitrator was bound to follow the provisions of the Pension Plan where they are unambiguous and that he could not add to or subtract therefrom. The District Judge found, however, that the provisions were ambiguous, stating:
It is ambiguous as to whether employee means presently employed or at one time employed. It is ambiguous as to whether the pension rights vest at the time when the board makes its determination of disability or at the time determined by the board when the disability occurred. These ambiguities create problems of interpretation and it is within the power of the board to interpret. This Court’s judgment about what the language means or what the parties intended is no better than the arbitrator’s judgment. Having agreed to a system whereby such problems are resolved by an arbitrator — and I point out that the company had a voice in the selection of the arbitrator — the company must now live with the decision that was made by the arbitrator. (A. 48)
It is significant that at the time the papers were signed for the settlement of the Workmen’s Compensation claim, nothing was stated about a waiver or release of pension rights to which Jerome was entitled since he was totally and permanently disabled. None of the agreements executed by Jerome provided that he was waiving his pension rights; nor was the Workmen’s Compensation Referee, who entered the order, advised that the rights of the claimant to a pension were being waived.
In our opinion the arbitrator had full power and authority to interpret the pension agreement. It certainly needed interpretation, and we have no authority to substitute our judgment for that of the arbitrator in his interpretation of the contract. Morris v. Werner-Continental, Inc., 466 F.2d 1185 (6th Cir. 1972); Chambers v. Beaunit Corp., 404 F.2d 128 (6th Cir. 1968); Baldwin-Montrose Chem. Co. v. International Union, United Rubberworkers, 383 F.2d 796 (6th Cir. 1967); Kroger Co. v. International Bhd. of Teamsters, Local 661, 380 F.2d 728 (6th Cir. 1967); United Steelworkers v. Caster Mold & Mach. Co., 345 F.2d 429 (6th Cir. 1965); Retail Clerks Int’l Assn., Local 128 & 633 v. Lion Dry Goods, Inc., 341 F.2d 715 (6th Cir. 1965).
The judgment of the District Court is affirmed.
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:
|
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.
THE MONROSA et al. v. CARBON BLACK EXPORT, INC.
No. 178.
Argued March 3-4, 1959.
Decided March 30, 1959.
E. D. Vickery argued the cause for petitioners. With him on the brief was George W. Renaudin.
Joseph T. McGowan argued the cause for respondent. With him on the brief was Carl G. Stearns.
Henry N. Longley filed a.brief for the American Institute of Marine Underwriters, as dmicus curiae, urging, affirmance.
Mr. Justice Brennan
delivered the opinion of the Court.
The respondent, Carbon Black Export, Inc., a Delaware corporation, brought a libel in admiralty in the District Court for the Southern District of Texas for damage sustained to a shipment of carbon black during an ocean voyage from Houston and New Orleans to various Italian ports. The libel was one in rem against the vessel in question, the S. S. Monrosa, then in the port of Houston on another voyage, and in personam against the Monrosa’s-owner, Navigazione Alta Italia, an Italian corporation. The latter filed an appearance in response to the libel in personam, and, as owner of the vessel, filed a claim to it, and prayed to defend the libel in rem. In respect to the libel in rem, a stipulation to abide the decree, in the penal sum of $100,000, was filed by the claimant and the National Surety Company, its surety, and approved by the present respondeat. . Navigazione Alta Italia then moved that the District Court decline'jurisdiction over the cause, on the grounds that the parties had agreed, by a provision in the bills of lading covering the shipment, that controversies in regard to cargo damage shoúld be settled only in the courts of Genoa, Italy. The District Court granted the motion, subject to the filing of a bond by Navigazione Alta Italia in the sum of $100,000 to respond to whatever judgment might finally be rendered on the cause of action in question. The Court of Appeals for the Fifth Circuit reversed. It found the provision in the bill of lading in terms inapplicable to suits in rem,- and it declined to enforce its terms to require a dismissal of the libel in personam. 254 F. 2d 297. 'We granted certiorari, 358 U. S. 809, because of an indicated conflict in principle between the Fifth Circuit’s views as to enforceability of such provisions and those taken by the Second Circuit, primarily in William H. Muller & Co. v. Swedish American Line Ltd., 224 F. 2d 806.
We do not believe that this case affords us an appropriate instance to pass upon the extent to which effect can be given to such stipulations in ocean bills of lading not to resort to. the courts of this country. The provision in this case was one of many printed provisions in a form bill of lading prepared by the carrier and presented by it for use in shipments on its vessel. It reads:
“27. — ALSO, that no legal proceedings may be brought against the Captain or Shipowners or their Agents in respect to any loss of or damage to any goods herein specified except in Genoa, it being understood and agreed that every other Tribunal in the place or places where the goods were shipped or landed is incompetent, not withstanding that the ship may be legally represented there.”
We find ourselves in agreement with the views of the Court of Appeals below that this clause should not be read as limiting the maintenance of an action in rem, cf. The Maggie Hammond, 9 Wall. 435, 449-450, against the vessel to enforce a maritime lien for proper carriage. The initial words are particularly appropriate to a restriction of the clause to in personam actions, and the rest of the language is intelligible on this premise. In accord-anee with the familiar rule in such circumstances, we will not stretch the language when the party drafting such a form contract has not included a provision it easily might have. The Caledonia, 157 U. S. 124, 137; The Majestic, 166 U. S. 375, 386; Compania de Navigacion La Flecha v. Brauer, 168 U. S. 104, 118. Considerations involved in construing exemptions from carriers’ liability provided by Acts of Congress are, we think, quite different. See Consumers Import Co. v. Kabushiki Kaisha Kawasaki Zosenjo, 320 U. S. 249. It is a form contract, not a statute, that we construe here.
Accordingly, after oral argument, we have concluded that the Court of Appeals was correct in holding that the libel in rem was properly maintainable. Both parties approved a secured stipulation to release thé vessel from seizure under, the libel, in an amount substantially the same as the recovery demanded by the libellant. This same amount the District Court denominated as proper security against a recovery elsewhere. We need not conjure up doubts in this regard that the parties never •expressed. While the parties were entitled to have the judgments of the courts below as to whether the libel in personam was also maintainable, we do not .believe.it a proper exercise of our discretionary jurisdiction to pass on that aspect of the case, which alone presents the question which led us to grant certiorari. It appears that in any event the respondent will be able to try its claim in the District Court.
In the light of these circumstances, which “were not... fully apprehended at the time. certiorari was granted,” Ferguson v. Moore-McCormack Lines, Inc., 352 U. S. 521, 559 (separate opinion), the writ of certiorari will be dismissed as improvidently granted. Rice v. Sioux City Memorial Park Cemetery, Inc., 349 U. S. 70, 75; Goins v. United States, 306 U. S. 622; Moor v. Texas & New Orleans R. Co., 297 U. S. 101; Southern Power Co. v. North Carolina Public Service Co., 263 U. S. 508. Cf. Hammerstein v. Superior Court of California, 341 U. S. 491, 492; McCarthy v. Bruner, 323 U. S. 673; Layne & Bowler Corp. v. Western Well Works, Inc., 261 U. S. 387, 392-393; Tyrrell, v. District of Columbia, 243 U. S. 1. Examination of a case on the merits, on oral argument, may bring into “proper focus” a consideration which, though present in the record at the time of granting the writ, only later indicates that the grant was improvident. See Rice v. Sioux City Memorial Park Cemetery, Inc., supra, at 73. While this Court decides questions of public importance, it decides them in the context of meaningful litigation. Its function in resolving conflicts among the Courts of Appeals is judicial, not simply administrative or managerial. Resolution here of the extent to which these bill of lading provisions may be given effect by our courts can await a day when the issue is posed less abstractly.
Writ of certiorari dismissed.
We note that in another place the bill of lading makes specific recognition of suits both in rem and in 'personam. Clause 35 provides:
“35. — In any event the Carrier and the ship shall be discharged from all liability in respect of dess or damage unless suit is brought within one year after the delivery of the goods or the date when the goods should have been delivered. Suit shall not be deemed brought until jurisdiction shall have been obtained over the Carrier and/or the ship by service of process or by an agreement to appear.”
While the first sentence is verbatim from § 3 (6) of the Carriage of Goods by Sea Act, 49 Stat. 1209, 46 U. S. C. § 1303 (6), the language nevertheless reinforces the fact that if both categories of suit were to be included under Clause 27, apt words to accomplish this were readily available, and were in fact used in another clause of the bill.
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_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.
TOOBERT v. WOODS, Housing Expediter
No. 12030.
United States Court of Appeals Ninth Circuit.
May 7, 1949.
George W. Downing, Jr., Los Angeles, Cal., for appellant.
Ed Dupree, General Counsel, Office of Housing Expediter, Hugo V. Prucha, Asst. General Counsel, Benjamin I. Shulman, Special Lit. Attorney, Washington, D.C., for appellee.
Before DENMAN, Chief Judge, and STEPHENS and BONE, Circuit Judges.
DENMAN, Chief Judge.
This is an appeal from a judgment in a suit brought by appellee restraining appellant from collecting over-ceiling rents from tenants of five rented areas belonging to appellant in the Los Angeles Defense Rental Area and ordering a restitution of rents previously collected in violation of the Emergency Price Control Act and the Housing and Rent Act of 1947, 50 U.S.C.A. Appendix, §§ 901 et seq., 1881 et seq.
The district court found that appellant and one Hammond demanded and received the over-ceiling rents as “landlords” within rent regulations providing.
“ ‘Landlord’ includes an owner, lessor, sublessor, assignee or other person receiving or entitled to receive rent for the use or occupancy of any housing accommodations, or an agent of any of the foregoing.” 10 F.R. 13528, and 12 F.R. 4331.
Appellant concedes that he owned in fee these rented areas and that the rents collected on the five parcels by Hammond were over the ceiling provided by these acts. He contends that the tenants were not his tenants but of Hammond, who held the rented areas, first for a year under an oral contract of purchase of these five rented areas and two others, and second for the remaining period of about fourteen months under an oral lease; and that all the rents were collected by Hammond and none received by him and hence that he was not a “landlord” within the above regulations.
The imcontradicted evidence is that such an oral contract of sale was made between appellant and Hammond by which Hammond was to purchase all the seven areas, the title to be in the name of Hammond’s wife, who was then in Texas. An agreement in writing was drawn and awaiting Mrs. Hammond’s signature. The property was insured against fire for the benefit of Mrs. Hammond, appellant and Hammond— clear evidence of a bonafide agreement of sale with Mrs. Hammond to obtain the title. On the total purchase price of $17,-500, $150 a month was paid by Hammond to appellant throughout the year.
Hammond disputed a claim of appellant that, under the sales agreement, Hammond was responsible for certain insurance on the property. The agreement was rescinded and an oral lease to Hammond at $125 per month was substituted. Appellee ddes not contend that $125 per month is in excess of the prescribed maximum rentals for the seven rented parcels, appellee having proved only the maximum rentals on five of the parcels.
The district court held this oral agreement of sale to be void. Its reasoning seems to be that since there was no contract of sale the appellant must be deemed to have received the rent of the buildings, though both Hammond and appellant testified to the contrary and no one of the tenants testifying states that he paid appellant anything. Continuing the reasoning seems to be that since such relationship of appellant with the tenants so began, it continued through the period of the oral lease.
In holding the contract of sale was void under the California law, the district court erred. In California the oral agreement of sale, at all the pertinent times here, was valid between the parties. In O’Brien v. O’Brien, 197 Cal. 577, 586, 241 P. 861, 864, the Supreme Court of California states:
“It is the general rule, however, that a contract falling within the operation of the statute, but made in contravention thereof, is not invalid in the sense that it is void. It is merely voidable. The statute is said to relate to the remedy only and not to affect the validity of the oral contract. ‘Such a contract, if otherwise valid, remains so, and the sole effect of the statute is to render it unenforceable by one party against the will of the other who abandons or repudiates it.’ ”
And to the same effect, and explicitly holding that such a contract is not void, are: Ayoob, v. Ayoob, 74 Cal.App.2d 236, at 242, 168 P.2d 462; Thompson v. Schur-man, 65 Cal.App.2d 432, at 438, 150 P.2d 509; Taylor v. J. B. Hill Co., 67 Cal.App.2d 581, 154 P.2d 926.
In Thompson v. Schurman, supra, as here, the vendee had paid part of the consideration on an oral contract for the sale of land. The vendee sued to recover the part payment, though the vendor had not repudiated the oral contract. The contract was held valid and the vendee not entitled to recover the part payment of the purchase price, the court stating, 65 Cal.App.2d at pages 437 and 438, 150 P.2d at page 512:
“According to the great weight of authorities, including those found in the California jurisdiction, the vendee of real property under an oral contract which is within the statute of frauds may not recover partial payment of the purchase price which he has paid pursuant to the agreement, in the absence of fraud, while the vendor is ready, able and willing to fulfill the terms and conditions of the contract. Laffey v. Kaufman, 134 Cal. 391, 66 P. 471, 86 Am.St.Rep. 283; Walbridge v. Richards, 212 Cal. 408, 413, 298 P. 971; Kroger v. Baur, 46 Cal.App.2d 801, 117 P.2d 50; 12 Cal.Jur. 9Z2, sec. 92; 2 Williston on Contracts, Rev.Ed. 1562, sec. 538; 2 Restatement of the Law of Contracts, 618, sec. 355 [e]; 132 A.L.R. 1489, note; 27 Cal. Law Rev. 475. * * * ”
With the burden of proof on the appellee, the record shows no evidence that appellant received anything other than the part of the purchase price paid by Hammond on the contract of sale and Hammond’s rental on the succeeding lease. We hold that appellant did not bear the relationship of landlord to the tenants within the above rent regulations.
The judgment is reversed and the district court ordered to enter a judgment for appellant.
Under See. 206(b) of the Housing and Rent Act of 1947.
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_appel1_1_3
|
E
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case.
BALTIMORE & O. R. CO. v. TINDALL.
No. 4439.
Circuit Court of Appeals, Seventh Circuit.
Feb. 9, 1931.
H. W. Mountz, of Garrett, Ind., and Charles D. Clark and Henry D. Sheean, both of Chicago, 111., for appellant.
Edward B. Hensleo and R. C. Parrish, both of Fort Wayne, Ind., for appellee.
Before ALSCHULER," EVANS, and , SPARKS, Circuit Judges.
EVANS, Circuit Judge.
Accepting the testimony most favorable to appellee, as we are required to do when reviewing the refusal of the trial court to direct a verdict, the following facts are disclosed :
Tindall was a front brakeman working on one of appellant’s freight trains engaged in interstate commerce, and he had been so employed for some time. As such employee, it was his duty to ride in the engine cab between stations. A seat was provided for him, the construction of which is shown by the drawing:
On October 29, 1927, while appellee was so riding between two stations, the seat gave way and he fell or slid to the floor of the cab. Appellee testified that the seat was defective in that its regular support (e) was gone and in its place was a wooden stick extending from under the seat to a piece of coal on the floor. When he fell, Tindall had his arm out the window. He stated that he fell “with his left hip down under the side of the seat and his left arm out of the window.”
Conceding without deciding that the injury happened in the manner charged, the controversy on this appeal is limited to an ascertainment of whether appellee’s alleged injuries resulted from this accident. Appellant disputed (a) appellee’s asserted physical condition- — that of total and permanent physical disability — and contended further (b) if permanent disability existed, it could not be traced to the fall from the seat. Ap-pellee argued that on both issues a jury question was presented by the evidence.
Respecting the first issue (a) it hardly seems necessary to set forth the evidence. We agree with appellee’s counsel that there was evidence to support a finding that after the accident appellee was at times wholly disabled from doing certain kinds of work.
Tbe real controversy, therefore, was over issue (b). Was there evidentiary support for a verdict finding that appellant’s negligence was tbe proximate cause of tbe injury for which damages were awarded?
The jury must have found that appellee was seriously and permanently injured, for it fixed his damages at $12,500. It must also have found that such serious and permanent injury was the result of the accident. This last statement is made because it is inconceivable that an award of $12,500 would have been made except on the theory that serious and permanent disability resulted from appellee’s slipping to the floor of the cab when the seat gave way.
The rule governing the quantum of proof necessary to warrant submission to the jury applies to the issue of proximate cause •as well as to that of negligence. New York Central R. R. v. Ambrose, 280 U. S. 486, 50 S. Ct. 198, 74 L. Ed. 562.
A most thorough examination of the testimony has resulted in the conclusion that .the jury was not justified in finding that such injuries were traceable to the fall. Such a verdict, we think, rests solely upon speculation.
Supporting this conclusion is the uncon-tradicted testimony that appellee never complained of such injuries to any one from the date of the accident, October 29, 1927, until October 19, 1929, when this action was begun. He made no mention either of the seat giving way or of his fall or of any injury resulting therefrom, to the fireman, to the brakeman, or to the conductor, on the day of the accident or at any time thereafter. He performed his duties as brakeman during the remainder of the trip. He “went out on his run” the next day and again performed his duties as a brakeman and he continued to do so for about sixty days. When, sixty days after the accident, he consulted his local physician, he made no mention of this accident as a possible explanation of the rheumatic pains from which he then suffered. In July, 1928, he consulted another physician, but made no mention of this accident. About four months later he again consulted this physician and was taken to a hospital, yet he never mentioned the accident. This physician stated that he examined him the second time on November 4,1928, and he testified as follows:
“My diagnosis at that time was that he was suffering with intense pain in the hip and muscles associated with the hip and a diagnosis was made of periostitis, which is an inflammation of the periosteum, the covering of the bone. On February 2nd, 1929, we took another ex-ray picture and another was taken on April 2nd, 1930 and another on April 28th, 1930. At the time he entered the hospital he was put to bed and given medicine to relieve the pain. We used the therapy red-ray lamp that generates heat producing rays. This treatment was continued while he was in the hospital, about twelve weeks, that was from November 4th, 1928 until January 29th, 1929. After that I had him purchase one of the red-ray lamps and take his treatment at home.”
These X-ray pictures were offered in evidence as were X-ray pictures taken by appellant’s witnesses at the time of the trial. Their examination failed to enlighten the court. ■
Several physicians testified for appellant, and their statement that appellee’s leg, left hip joint, and bones of the joint and hip were at the date of the trial (May 12, 1930) '.in a normal state, is not seriously disputed. These witnesses also stated that they measured the length of each limb, the diameter of the thighs and made other measurements, and found both legs exactly equal. Their statement as to these measurements is uncontradicted. They agreed that “aside from the subjective symptoms, their examination disclosed no evidence of injury.” They also stated without contradiction that an absorption of the left head of the humerous, covering a period of two years, would result in some atrophy of the muscles around the hip joint. They likewise testified that rheumatic conditions around the hip joint “may arise from infections in a remote part of the body, in the teeth or bladder or other places.”
In reaching our conclusion we have not overlooked the testimony of appellee’s physician given in response to a hypothetical question, that appellee’s condition at the time of the trial, May 12, 1930, was caused by the injuries received on October 29, 1927. The hypothetical question, upon which the physician based his answer, presupposed the absence of infections or other causes of rheumatic or sciatic nerve inflammations.
While it seems to be the common practice in the trial of personal injury eases to submit to an expert witness a hypothetical question based upon one side’s theory of the case, the answer to such question is not as satisfactory or as persuasive as it would be if a fairer or more complete statement of the actual facts appeared in- the question. Accepting appellee’s story of his disability, the court and jury were interested in its cause. Was it of traumatic or rheumatie origin? Was it caused by an injury or by an infection? The expert’s opinion to be of value should be in answer to a hypothetical question including the possible causes. ■
There seems to he some merit in the contention that if injury caused the condition there would have been some physical manifestation of it in the limb or the region of the left hip joint.
Further support for our conclusion is to he found in the testimony of the doctor, who acted as medical examiner of the insurance benefit department of the Baltimore & Ohio Railroad Company. Appellee had been on the insurance disability list of the relief department since December 21, 1927. This insurance department covered both sick and injury benefits. Sick benefits began to run from a date different from that of disability benefits paid because of disability caused by accidents. In applying for benefits because of his disability, appellee never made claim that such disability was due to an injury. Had he done so, his benefits would have been from a slightly earlier date.
We conclude that the evidence tending to show the damages for which appellee recovered was too remote and speculative to justify its submission to the jury. It is not necessary to pass on appellant’s other contention that the evidence is insufficient to sustain a finding that the support for the seat was defective.
The judgment is reversed, with direction to grant a new trial.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case?
A. agriculture
B. mining
C. construction
D. manufacturing
E. transportation
F. trade
G. financial institution
H. utilities
I. other
J. unclear
Answer:
|
songer_stpolicy
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the interpretation of state or local law, executive order, administrative regulation, doctrine, or rule of procedure by the court favor the appellant?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
UNITED STATES of America, Plaintiff-Appellee, v. Gene Edward HAMPTON, Defendant-Appellant.
No. 84-2704.
United States Court of Appeals, Tenth Circuit.
March 11, 1986.
Richard W. Anderson of Freeman, Buxton & Anderson (Jack L. Freeman, with him on brief), Edmond, Okl., for defendant-appellant.
Paul G. Hess, Asst. U.S. Atty. (Roger Hilfiger, U.S. Atty., with him on brief), Muskogee, Okl., for plaintiff-appellee.
Before McKAY, SETH and LOGAN, Circuit Judges.
SETH, Circuit Judge.
Appellant, Gene Edward Hampton, was convicted on nine counts of a ten count indictment by a jury in the Eastern District of Oklahoma. The indictment included counts of: conspiracy and racketeering activities affecting interstate commerce in violation of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1961-1968 (counts 1 and 2); conspiracy to and obstructing, delaying and affecting interstate commerce by means of extortion under color of official right as Sheriff of Bryan County, Oklahoma in violation of the Hobbs Act, 18 U.S.C. § 1951 (counts 3-8); and use of intimidation and physical force with intent to influence the testimony of witnesses in an official proceeding in violation of 18 U.S.C. § 1512 (counts 9-10).
In essence, the indictment alleged that the appellant, Gene Hampton, was using his position as Sheriff of Bryan County to extort payoffs from club operators and others in return for selective enforcement of liquor, gambling and other laws. There was evidence of appellant using a “bag-man” to collect payoffs and a number of club owners also testified to making “donations” to a “Narcotic Fund.” These payments purportedly ensured nonharassment, staying open beyond the 2:00 a.m. closing time and in at least one instance allowing the safe operation of a dice game. There was evidence that Sheriff Hampton directed a deputy to terminate an investigation into gambling in Durant conducted for the district attorney, and also that the Sheriff warned an ongoing dice game of an impending raid by authorities.
On appeal the former Sheriff Hampton raises several issues for review. He contends that the trial court erred in denying his motion for judgment of acquittal or new trial on the RICO conspiracy count based on insufficiency of evidence. Specifically, the appellant asserts that the failure of the government to prove his alleged co-conspirator, Roy Harris, committed two of the necessary predicate offenses means Roy Harris could not have been a member of a RICO conspiracy and the appellant therefore could not have conspired with him.
The object of a RICO conspiracy must be to violate a substantive RICO provision. United States v. Elliott, 571 F.2d 880, 903 (5th Cir.). In this instance the substantive RICO offense was conducting or participating in the operation of the Bryan County Sheriff’s Office through a pattern of racketeering activity. A RICO conspiracy requires more than merely a conspiracy to commit the predicate crimes necessary to establish the pattern. In order for appellant to be found guilty of the RICO conspiracy charge, he and Roy Harris must have agreed to participate in a pattern of racketeering through the operation of the Sheriffs Office.
We have often recognized that the secretive nature of a criminal conspiracy means that direct proof is seldom available and the required unlawful agreement may be inferred from circumstantial evidence. United States v. Zang, 703 F.2d 1186,1191 (10th Cir.); Jordan v. United States, 370 F.2d 126, 128 (10th Cir.). On appeal, this court must view the evidence and inferences drawn by the jury in the light most favorable to the government. United States v. Dickey, 736 F.2d 571, 581 (10th Cir.).
There was evidence of the appellant and Roy Harris’ cooperation in the extortion scheme through Roy Harris’ acting as a “bagman” for payoffs to the Sheriff, his involvement in gambling operations which appellant allowed to operate, and appellant’s termination of an ongoing investigation into gambling operations which Roy Harris was conducting. We are more than satisfied that a reasonable jury could infer that appellant and Roy Harris intended to take advantage of the Bryan County Sheriff’s Office through a pattern of extortion and other racketeering activity.
Appellant next contends that the Fifth Amendment’s double jeopardy provision prohibits his conviction and the consecutive sentences for both violation of the substantive RICO charge and the Hobbs Act racketeering charges which served as the predicate offenses for the RICO conviction. Thus that the Hobbs Act charges require the same proof as the substantive RICO charge. Appellant’s contention is that the Supreme Court prohibited double punishment of this nature in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306. We must disagree.
The double jeopardy clause of the Fifth Amendment protects against a second prosecution for the same offense after an initial acquittal; it denies a second prosecution for the same offense after a conviction; and it protects against multiple punishments for a single offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656.
In the much discussed Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306, the Court considered several sales of morphine to the same person at about the same time. There were two counts for one sale — one count for sale not from the original stamped package under the then section 1 of the “Narcotics Act” and another count based on the same transaction but charging a sale not pursuant to a written order (section 2). The Court found two offenses permitting two separate punishments, and stated the frequently quoted test:
“The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.”
284 U.S. at 304, 52 S.Ct. at 182. The Court much later in Whalen v. United States, 445 U.S. 684, 693, 100 S.Ct. 1432, 1438, 63 L.Ed.2d 715, in referring to Blockburger, said: “And where the offenses are the same under that test, cumulative sentences are not permitted, unless elsewhere specially authorized by Congress.”
Other Supreme Court holdings addressing this issue have demonstrated that Blockburger is not a constitutional “litmus test” but rather a tool of statutory construction to determine whether Congress intended to allow two statutory offenses to be punished cumulatively. Whalen v. United States, 445 U.S. 684, 692, 100 S.Ct. 1432, 1438, 63 L.Ed.2d 715. As stated in Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187, the double jeopardy guarantee serves principally as a restraint on courts and prosecutors while the legislature remains free to fix punishments. And, although the Court conceded in Missouri v. Hunter, 459 U.S. 359, 365, 103 S.Ct. 673, 677, 74 L.Ed.2d 535, that the double jeopardy clause may not be totally inapplicable to the legislative branch, the Court in Albernaz v. United States, 450 U.S. 333, 344, 101 S.Ct. 1137, 1145, 67 L.Ed.2d 275, said, at least in the context of multiple punishments in a single proceeding, “the question of what punishments are constitutionally permissible is not different from the question of what punishments the Legislative Branch intended to be imposed.” The Court went on to say: “The Blockburger test is a ‘rule of statutory construction,’ and because it serves as a means of discerning congressional purpose the rule should not be controlling where, for example, there is a clear indication of contrary legislative intent.” 450 U.S. at 340, 101 S.Ct. at 1142.
An examination of the statutory framework and legislative history of RICO demonstrates that Congress did clearly articulate an intent to permit cumulative punishment for substantive RICO violations and the underlying predicate acts. See also United States v. Hartley, 678 F.2d 961 (11th Cir.); United States v. Hawkins, 658 F.2d 279 (5th Cir.); United States v. Rone, 598 F.2d 564 (9th Cir.).
Congress was particularly clear in stating its intentions in enacting the RICO provisions:
“It is the purpose of this Act to seek the eradication of organized crime in the United States by strengthening the legal tools in the evidence-gathering process, by establishing new penal prohibitions, and by providing enhanced sanctions and new remedies to deal with the unlawful activities of those engaged in organized crime.”
Organized Crime Control Act of 1970, Pub.L. No. 91-452, 84 Stat. 923 (1970) (emphasis added). As the Ninth Circuit commented in United States v. Rone, 598 F.2d 564, 571 (9th Cir.), “[tjhere is nothing in the RICO statutory scheme which would suggest that Congress intended to preclude separate convictions or consecutive sentences for a RICO offense and the underlying or predicate crimes which make up the racketeering pattern.” Indeed, Congress specifically stated that “[njothing in this title shall supersede any provision of Federal, State, or other law imposing criminal penalties or affording civil remedies in addition to those provided for in this title.” Pub.L. 91-452 § 904(b). Further support is found in the statutory definition of a “pattern of racketeering” activity which
“requires at least two acts of racketeering activity, one of which occurred after the effective date of this chapter and the last of which occurred within ten years {excluding any period of imprisonment) after the commission of a prior act of racketeering activity.”
Pub.L. 91-452 § 901(a) (emphasis added). Although we do not imply as other courts have that a conviction on the predicate acts is necessary for a substantive RICO conviction, United States v. Brown, 583 F.2d 659 (3d Cir.), we do read the above provision to indicate that Congress envisioned that a RICO conviction and sentence could be based upon a predicate crime for which the defendant has already been punished.
The above cited evidence of Congress’ intent to authorize cumulative punishments for substantive RICO violations and the predicate offenses requires us to conclude the district court properly imposed consecutive sentences upon appellant.
Lastly, we consider appellant’s contention that count 1 of the indictment charging him with conspiring to violate the substantive RICO provisions was in fact a charge of multiple conspiracies rather than a single conspiracy. Appellant argues, correctly, that this would contradict the Supreme Court’s holding in Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557. However, the indictment in this case does not contain allegations of multiple offenses in a single count.
Appellant argues that there were separate conspiracies with the only common element being his alleged participation which he further contends is too tenuous a connection to support their combination in a single count. We disagree. The common denominator between the “kickbacks”, dice games and other schemes goes further than appellant’s alleged participation. More significantly, they all involve the participation of appellant as Sheriff of Bryan County and the corruption of that office.
We have considered appellant’s other contentions on this appeal and find them to be without merit.
AFFIRMED.
Question: Did the interpretation of state or local law, executive order, administrative regulation, doctrine, or rule of procedure by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
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.
Eugene M. BARRETT, Appellant, v. C. H. LOONEY, Warden, United States Penitentiary, Leavenworth, Kansas, Appellee.
No. 5758.
United States Court of Appeals Tenth Circuit.
Feb. 18, 1958.
Joseph P. Jenkins, Kansas City, Mo., for appellant.
Peter S. Wondolowski, Lieutenant Colonel, U. S. Army, Judge Advocate General’s Corps, Washington, D. C. (William C. Farmer, U. S. Atty., Topeka, Kan., Milton P. Beach, Asst. U. S. Atty., Kansas City, Kan., and Cecil L. Fori-nash, Lieutenant Colonel, U. S. Army, Judge Advocate General’s Corps, Washington, D. C., were with him on the brief), for appellee.
Before MURRAH, LEWIS and BREI-TENSTEIN, Circuit Judges.
PER CURIAM.
This case presents a single question: Does one who enlists in the military while under lawful age for enlistment but who continues to voluntarily render military service after reaching the age of permissible enlistment thereupon become amenable to court-martial jurisdiction for offenses committed after such lawful age is attained?
Appeal is taken from the judgment of the District Court of Kansas holding that one who so serves becomes a member of the military and subject to its jurisdiction.
The particular facts premising the issue, together with a careful analysis of pertinent authority, is set forth in the opinion of Senior Circuit Judge Huxman who heard the case upon assignment to the District Court. We agree with Judge Huxman’s opinion and the judgment is affirmed for the reasons stated therein. 158 F.Supp. 224. Since we hold appellant to have been a member of the military at the time of his offenses we need not consider any aspect of possible military jurisdiction over civilians.
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_procedur
|
B
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant.
THE ACADIA. EXNER SAND & GRAVEL CORPORATION v. EASTERN S. S. LINES, Inc.
No. 361.
Circuit Court of Appeals, Second Circuit.
Aug. 1, 1938.
Maclay & Williams, of New York City (Mark W. Maclay, of New York City, of counsel), for appellant.
John W. Van Gordon, of New York City (Aaron U. Homnick, of New York City, of counsel), for appellee.
Before L. HAND, AUGUSTUS N. HAND, and CHASE, Circuit Judges.
CHASE, Circuit Judge. ■
The libellant is the owner of three scows which with three others were, on July 18, 1935, in tow of the tug “Dauntless No. 6” from Port Jefferson, L. I. to New York City loaded with sand and gravel. The tug had them on a bridle hawser and they were held together by tow and cross lines. The weather was clear with good visibility; the wind southwesterly; the sea smooth and the tide at flood. At about 12:35 P.M., the tow was proceeding westerly at about four miles an hour a short distance off Matimicock Point in water not less than thirty-five feet and possibly as much as fifty feet in depth. Swells were then encountered which tossed the scows about and against each other in such a manner that they sustained some damage. The court below found that the swells were created by the S. S. Acadia, a passenger steamer 407 feet long owned by the libellee, which was negligent in running on a course too near the tow at a speed of nineteen knots through the water. From an interlocutory decree against it, the libellee has appealed.
The speed and course of the Acadia have been established by positive evidence which leaves little possibility of error. She had Execution Light abeam at 12:11 p.m. on her eastbound trip up the sound at a distance of between five and six hundred feet. She then laid, her course by autogyro compass 51 degrees true and held it until Captains Island was abeam at 12:-37 when she changed it to 71 degrees true. She held that course until the gas buoy at Lloyds Neck was abeam at 12:52 when she changed to 73 degrees true. Her speed was uniform throughout this period, as already stated.
The position of the tow cannot be determined with anything approaching such accuracy. The trial judge apparently had difficulty with that and some of his findings seem to be conflicting. He finally put the distance between the Acadia and the tow when they passed each other at “less (han a mile and probably something between a quarter of a mile and a mile”. It has been found to have been within “about a quarter or three-eighths of a mile of the Matimicock buoy” when the Acadia passed. The nearest the Acadia’s course took her to' that buoy is about one mile. We are, therefore, forced to the conclusion that the somewhat elastic finding of the trial judge as to the distance at which the Acadia passed the tow is to be taken at toward the longer limit of somewhat less than a mile and the weight of all the evidence about it places the distance at not less than three quarters of a mile.
Decision turns on whether it was negligent to pass the tow at the above mentioned distance and speed in water of the depth stated, negligence being the basis of legal liability for swell damage with the burden to prove it on the libellant. The New York, 2 Cir., 167 F. 315. In The Majestic, 2 Cir., 48 F. 730 a large steamer was held for swell damage to a tow but the passing was “considerably nearer than half a mile” (page 731) and the tow was in water described as shallow. In The Kronprinzessin Cecilie, D.C., 171 F. 574 the swells were also caused by a large ocean-going steamer to the injury of a tow in Greenville Channel. But neither these nor other cases are close enough on the facts to this one to be of much help.
It was fairly proved that the Acadia would raise a wave of about three feet at her maximum speed of 23 knots and one of about two feet at her speed on this occasion. It would run out to nothing in a mile and would, of course, be well level-led down at three-quarters of a mile. While there was some evidence introduced by the libellant that the swells were from six to eight feet high when they reached the tow, this in view of all the evidence is simply incredible. Much of the damage claimed, especially that to the keelsons, could hardly have been caused by swells. And the absence of proof of broken towing bitts is rather significant. It is, indeed, most unlikely that all of the claimed damage could have been caused as the libellant contends. But, however that may be, this record does not contain fair proof that in water so deep the captain of the Acadia was bound to foresee that, at the speed he was running, his ship would cause swells that would endanger the safety of a seaworthy tow passed at least three-quarters of. a mile away: Consequently, negligence in respect to speed and closeness of passing was not shown. And nothing else approaching negligence was proved.
Decree reversed.
Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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songer_initiate
|
B
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What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff.
UNITED STATES of America, Appellee, v. Theodore KITTELT, Appellant.
No. 10380.
United States Court of Appeals Fourth Circuit.
Argued June 21, 1966.
Decided June 27, 1966.
Alan J. Karlin, Baltimore, Md. (Marvin Mandel, Baltimore, Md., on brief), for appellant.
Paul R. Kramer, Asst. U. S. Atty. (Thomas J. Kenney, U. S. Atty., on brief), for appellee.
Before HAYNSWORTH, Chief Judge, SOBELOFF, Circuit Judge, and LEWIS, District Judge.
PER CURIAM.
Appellant was convicted on two counts of an indictment charging him with passing counterfeit Federal Reserve notes. The receiver of the notes testified that the defendant arranged with him to deliver the counterfeit money through an unidentified third person, and that at the appointed times and places a person appeared and delivered the counterfeit notes precisely in accordance with the prearranged plan.
The defendant does not challenge the general fairness of the trial or of the charge. His only complaint is that the judge should not have told the jury that
“whatever a person is legally capable of doing himself can be done through another as an agent. Hence, if the acts of an employee or other agent are wil-fully ordered or directed, or wilfully authorized or consented to by the accused, the law holds the accused responsible for such acts as though personally committed by the accused.”
The objection made is that the word “agent” had not been mentioned during the trial, and that therefore it was error to introduce the concept of agency in' the charge to the jury. Since it is conceded that the circumstances testified to, if believed by the jury, would permit an inference of agency, the contention is insubstantial. We find the charge unexceptionable. Waters v. United States, 145 F.2d 240 (4th Cir.), affirming sub nom. United States v. Pritchard, 55 F. Supp. 201, 203-204 (W.D.S.C.1944).
The judgment is
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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sc_casedisposition
|
E
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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.
HUDGENS v. NATIONAL LABOR RELATIONS BOARD et al.
No. 74-773.
Argued October 14, 1975
Decided March 3, 1976
Stewart, J., delivered the opinion of the Court, in which Burger, C. J., and BlackmüN, Powell, and Rehnquist, JJ., joined. Powell, J., filed a' concurring opinion, in which Burger, C. J., joined, post, p. 523. White, J., filed an opinion concurring in the result, post, p. 524. Marshall, J., filed a dissenting opinion, in which BrennaN, J., joined, post, p. 525. Stevens, J., took no part in the consideration or decision of the case.
Lawrence M. Cohen argued the cause for petitioner. With him on the brief were Steven R. Sender and Dow N. Kirkpatrick, II.
Norton J. Come argued the cause for respondent National Labor Relations Board. With him on the brief were Solicitor General Bork, William L. Patton, Peter G. Nash, John S. Irving, Patrick Hardin, and Robert A. Giannasi. Laurence Gold argued the cause for respondent Local 315, Retail & Wholesale Department Store Union, AFL-CIO. With him on the brief were Morgan Stanford and J. Albert Woll.
Muton A. Smith, Richard B. Berman, Gerard C. Smetana, and Jerry Kronenberg filed a brief for the Chamber of Commerce of the United States as amicus curiae urging reversal.
Mr. Justice Stewart
delivered the opinion of the Court.
A group of labor union members who engaged in peaceful primary picketing within the confines of a privately owned shopping center were threatened by an agent of the owner with arrest for criminal trespass if they did not depart. The question presented is whether this threat violated the National Labor Relations Act, 49 Stat. 449, as amended, 61 Stat. 136, 29 U. S. C. § 151 et seq. The National Labor Relations Board concluded that it did, 205 N. L. R. B. 628, and the Court of Appeals for the Fifth Circuit agreed. 501 F. 2d 161. We granted certiorari because of the seemingly important questions of federal law presented. 420 U. S. 971.
t — H
The petitioner, Scott Hudgens, is the owner of the North DeKalb Shopping Center, located in suburban Atlanta, Ga. The center consists of a single large building with an enclosed mall. Surrounding the building is a parking area which can accommodate 2,640 automobiles. The shopping center houses 60 retail stores leased to various businesses. One of the lessees is the Butler Shoe Co. Most of the stores, including Butler’s, can be entered only from the interior mall.
In January 1971, warehouse employees of the Butler Shoe Co. went on strike to protest the company’s failure to agree to demands made by their union in contract negotiations. The strikers decided to picket not only Butler’s warehouse but its nine retail stores in the Atlanta area as well, including the store in the North DeKalb Shopping Center. On January 22, 1971, four of the striking warehouse employees entered the center’s enclosed mall carrying placards which read: “Butler Shoe Warehouse on Strike, AFL-CIO, Local 315.” The general manager of the shopping center informed the employees that they could not picket within the mall or on the parking lot and threatened them with arrest if they did not leave. The employees departed but returned a short time later and began picketing in an area of the mall immediately adjacent to the entrances of the Butler store. After the picketing had continued for approximately 30 minutes, the shopping center manager again informed the pickets that if they did not leave they would be arrested for trespassing. The pickets departed.
The union subsequently filed with the Board an unfair labor practice charge against Hudgens, alleging interference. with rights protected by § 7 of the Act, 29 U. S. C. § 157. Relying on this Court’s decision in Food Employees v. Logan Valley Plaza, 391 U. S. 308, the Board entered a cease-and-desist order against Hudgens, reasoning that because the warehouse employees enjoyed a First Amendment right to picket on the shopping center property, the owner’s threat of arrest violated § 8 (a)(1) of the Act, 29 U. S. C. § 158 (a)(1). Hudgens filed a petition for review in the Court of Appeals for the Fifth Circuit. Soon thereafter this Court decided Lloyd Corp. v. Tanner, 407 U. S. 551, and Central Hardware Co. v. NLRB, 407 U. S. 539, and the Court of Appeals remanded the case to the Board for reconsideration in light of those two decisions.
The Board, in turn, remanded to an Administrative Law Judge, who made findings of fact, recommendations, and conclusions to the effect that Hudgens had committed an unfair labor practice by excluding the pickets. This result was ostensibly reached under the statutory criteria set forth in NLRB v. Babcock & Wilcox Co., 351 U. S. 105, a case which held that union organizers who seek to solicit for union membership may intrude on an employer’s private property if no alternative means exist for communicating with the employees. But the Administrative Law Judge’s opinion also relied on this Court’s constitutional decision in Logan Valley for a “realistic view of the facts.” The Board agreed with the findings and recommendations of the Administrative Law Judge, but departed somewhat from his reasoning. It concluded that the pickets were within the scope of Hudgens’ invitation to members of the public to do business at the shopping center, and that it was, therefore, immaterial whether or not there existed an alternative means of communicating with the customers and employees of the Butler store.
Hudgens again petitioned for review in the Court of Appeals for the Fifth Circuit, and there the Board changed its tack and urged that the case was controlled not by Babcock & Wilcox, but by Republic Aviation Corp. v. NLRB, 324 U. S. 793, a case which held that an employer commits an unfair labor practice if he enforces a no-solicitation rule against employees on his premises who are also union organizers, unless he can prove that the rule is necessitated by special circumstances. The Court of Appeals enforced the Board’s cease-and-desist order but on the basis of yet another theory. While acknowledging that the source of the pickets’ rights was § 7 of the Act, the Court of Appeals held that the competing constitutional and property .right considerations discussed in Lloyd Corp. v. Tanner, supra, “burde[n] the General Counsel with the duty to prove that other locations less intrusive upon Hudgens’ property rights than picketing inside the mall were either unavailable or ineffective,” 501 F. 2d, at 169, and that the Board’s General Counsel had met that burden in this case.
In this Court the petitioner Hudgens continues to urge that Babcock & Wilcox Co. is the controlling precedent, and that under the criteria of that case the judgment of the Court of Appeals should be reversed. The respondent union agrees that a statutory standard governs, but insists that, since the § 7 activity here was not organizational as in Babcock but picketing in support of a lawful economic strike, an appropriate accommodation of the competing interests must lead to an affirmance of the Court of Appeals’ judgment. The respondent Board now contends that the conflict between employee picketing rights and employer property rights in a case like this must be measured in accord with the commands of the First Amendment, pursuant to the Board’s asserted understanding of Lloyd Corp. v. Tanner, supra, and that the judgment of the Court of Appeals should be affirmed on the basis of that standard.
II
As the above recital discloses, the history of this litigation has been a history of shifting positions on the part of the litigants, the Board, and the Court of Appeals. It has been a history, in short, of considerable confusion, engendered at least in part by decisions of this Court that intervened during the course of the litigation. In the present posture of the case the most basic question is whether the respective rights and liabilities of the parties are to be decided under the criteria of the National Labor Relations Act alone, under a First Amendment standard, or under some combination of the two. It is to that question, accordingly, that we now turn.
It is, of course, a commonplace that the constitutional guarantee of free speech is a guarantee only against abridgment by government, federal or state. See Columbia Broadcasting System, Inc. v. Democratic National Comm., 412 U. S. 94. Thus, while statutory or common law may in some situations extend protection or provide redress against a private corporation or person who seeks to abridge the free expression of others, no such protection or redress is provided by the Constitution itself.
This elementary proposition is little more than a truism. But even truisms are not always unexceptionably true, and an exception to this one was recognized almost 30 years ago in Marsh v. Alabama, 326 U. S. 501. In Marsh, a Jehovah’s Witness who had distributed literature without a license on a sidewalk in Chickasaw, Ala., was convicted of criminal trespass. Chickasaw was a so-called company town, wholly owned by the Gulf Shipbuilding Corp. It was described in the Court’s opinion as follows:
“Except for [ownership by a private corporation] it has all the characteristics of any other American town. The property consists of residential buildings, streets, a system of sewers, a sewage disposal plant and a ‘business block’ on which business places are situated. A deputy of the Mobile County Sheriff, paid by the company, serves as the town’s policeman. Merchants and service establishments have rented the stores and business places on the business block and the United States uses one of the places as a post office from which six carriers deliver mail to the people of Chickasaw and the adjacent area. The town and the surrounding neighborhood, which can not be distinguished from the Gulf property by anyone not familiar with the property lines, are thickly settled, and according to all indications the residents use the business block as their regular shopping center. To do so, they now, as they have for many years, make use of a company-owned paved street and sidewalk located alongside the store fronts in order to enter and leave the stores and the post office. Intersecting company-owned roads at each end of the business block lead into a four-lane public highway which runs parallel to the business block at a distance of thirty feet. There is nothing to stop highway traffic from coming onto the business block and upon arrival a traveler may make free use of the facilities available there. In short the town and its shopping district are accessible to and freely used by the public in general and there is nothing to distinguish them from any other town and shopping center except the fact that the title to the property belongs to a private corporation.” Id,., at 502-503.
The Court pointed out that if the “title” to Chickasaw had “belonged not to a private but to a municipal corporation and had appellant been arrested for violating a municipal ordinance rather than a ruling by those appointed by the corporation to manage a company town it would have been clear that appellant’s conviction must be reversed.” Id., at 504. Concluding that Gulfs “property interests” should not be allowed to lead to a different result in Chickasaw, which did “not function differently from any other town,” id., at 506-508, the Court invoked the First and Fourteenth Amendments to reverse the appellant’s conviction.
It was the Marsh case that in 1968 provided the foundation for the Court’s decision in Amalgamated Food Employees Union v. Logan Valley Plaza, 391 U. S. 308. That case involved peaceful picketing within a large shopping center near Altoona, Pa. One of the tenants of the shopping center was a retail store that employed a wholly nonunion staff. Members of a local union picketed the store, carrying signs proclaiming that it was nonunion and that its employees were not receiving union wages or other union benefits. The picketing took place on the shopping center’s property in the immediate vicinity of the store. A Pennsylvania court issued an injunction that required all picketing to be confined to public areas outside the shopping center, and the Supreme Court of Pennsylvania affirmed the issuance of this injunction. This Court held that the doctrine of the Marsh case required reversal of that judgment.
The Court’s opinion pointed out that the First and Fourteenth Amendments would clearly have protected the picketing if it had taken place on a public sidewalk:
“It is clear that if the shopping center premises were not privately owned but instead constituted the business area of a municipality, which they to a large extent resemble, petitioners could not be barred from exercising their First Amendment rights there on the sole ground that title to the property was in the municipality. Lovell v. Griffin, 303 U. S. 444 (1938); Hague v. CIO, 307 U. S. 496 (1939); Schneider v. State, 308 U. S. 147 (1939); Jamison v. Texas, 318 U. S. 413 (1943). The essence of those opinions is that streets, sidewalks, parks, and other similar public places are so historically associated with the exercise of First Amendment rights that access to them for the purpose of exercising such rights cannot constitutionally be denied broadly and absolutely.” 391 U. S., at 315.
The Court’s opinion then reviewed the Marsh case in detail, emphasized the similarities between the business block in Chickasaw, Ala., and the Logan Valley shopping center, and unambiguously concluded:
“The shopping center here is clearly the functional equivalent of the business district of Chickasaw involved in Marsh.” 391 U. S., at 318.
Upon the basis of that conclusion, the Court held that the First and Fourteenth Amendments required reversal of the judgment of the Pennsylvania Supreme Court.
There were three dissenting opinions in the Logan Valley case, one of them by the author of the Court’s opinion in Marsh, Mr. Justice Black. His disagreement with the Court’s reasoning was total:
“In affirming petitioners’ contentions the majority opinion relies on Marsh v. Alabama, supra, and holds that respondents’ property has been transformed to some type of public property. But Marsh was never intended to apply to this kind of situation. Marsh dealt with the very special situation of a company-owned town, complete with streets, alleys, sewers, stores, residences, and everything else that goes to make a town. ... I can find very little resemblance between the shopping center involved in this case and Chickasaw, Alabama. There are no homes, there is no sewage disposal plant, there is not even a post office on this private property which the Court now considers the equivalent of a ‘town.’ ” 391 U. S., at 330-331 (footnote omitted).
“The question is, Under what circumstances can private property be treated as though it were public? The answer that Marsh gives is when that property has taken on all the attributes of a town, i. e., ‘residential buildings, streets, a system of sewers, a sewage disposal plant and a “business block” on which business places are situated.’ 326 U. S., at 502. I can find nothing in Marsh which indicates that if one of these features is present, e. g., a business district, this is sufficient for the Court to confiscate a part of an owner’s private property and give its use to people who want to picket on it.” Id., at 332. “To hold that store owners are compelled by law to supply picketing areas for pickets to drive store customers away is to create a court-made law wholly disregarding the constitutional basis on which private ownership of property rests in this country. . . .” Id., at 332-333.
Four years later the Court had occasion to reconsider the Logan Valley doctrine in Lloyd Corp. v. Tanner, 407 U. S. 551. That case involved a shopping center covering some 50 acres in downtown Portland, Ore. On a November day in 1968 five young people entered the mall of the shopping center and distributed handbills protesting the then ongoing American military operations in Vietnam. Security guards told them to leave, and they did so, “to avoid arrest.” Id., at 556. They subsequently brought suit in a Federal District Court, seeking declaratory and injunctive relief. The trial court ruled’ in their favor, holding that the distribution of handbills on the shopping center’s property was protected by the First and Fourteenth Amendments. The Court of Appeals for the Ninth Circuit affirmed the judgment, 446 F. 2d 545, expressly relying on this Court’s Marsh and Logan Valley decisions. This Court reversed the judgment of the Court of Appeals.
The Court in its Lloyd opinion did not say that it was overruling the Logan Valley decision. Indeed, a substantial portion of the Court’s opinion in Lloyd was devoted to pointing out the differences between the two cases, noting particularly that, in contrast to the hand-billing in Lloyd, the picketing in Logan Valley had been specifically directed to a store in the shopping center and the pickets had had no other reasonable opportunity to reach their intended audience. 407 U. S., at 561-567. But the fact is that the reasoning of the Court’s opinion in Lloyd cannot be squared with the reasoning of the Court’s opinion in Logan Valley.
It matters not that some Members of the Court may continue to believe that the Logan Valley case was rightly decided. Our institutional duty is to follow until changed the law as it now is, not as some Members of the Court might wish it to be. And in the performance of that duty we make clear now, if it was not clear before, that the rationale of Logan Valley did not survive the Court’s decision in the Lloyd case. Not only did the Lloyd opinion incorporate lengthy excerpts from two of the dissenting opinions in Logan Valley, 407 U. S., at 562-563, 565; the ultimate holding in Lloyd amounted to a total rejection of the holding in Logan Valley:
“The basic issue in this case is whether respondents, in the exercise of asserted First Amendment rights, may distribute handbills on Lloyd’s private property contrary to its wishes and contrary to a policy enforced against all handbilling. In addressing this issue, it must be remembered that the First and Fourteenth Amendments safeguard the rights of free speech and assembly by limitations on state action, not on action by the owner of private property used nondiscriminatorily for private purposes only....” 407 U. S., at 567.
“Respondents contend . . . that the property of a large shopping center is ‘open to the public,’ serves the same purposes as a ‘business district’ of a municipality, and therefore has been dedicated to certain types of public use. The argument is that such a center has sidewalks, streets, and parking areas which are functionally similar to facilities customarily provided by municipalities. It is then asserted that all members of the public, whether invited as customers or not, have the same right of free speech as they would have on the similar public facilities in the streets of a city or town.
“The argument reaches too far. The Constitution by no means requires such an attenuated doctrine of dedication of private property to public use. The closest decision in theory, Marsh v. Alabama, supra, involved the assumption by a private enterprise of all of the attributes of a state-created municipality and the exercise by that enterprise of semiofficial municipal functions as a delegate of the State. In effect, thé owner of the company town was performing the full spectrum of municipal powers and stood in the shoes of the State. In the instant case there is no comparable assumption or exercise of municipal functions or power.” Id., at 568-569 (footnote omitted).
“We hold that there has been no such dedication of Lloyd’s privately owned and operated shopping center to public use as to entitle respondents to exercise therein the asserted First Amendment rights. . . Id., at 570.
If a large self-contained shopping center is the functional equivalent of a municipality, as Logan Valley held, then the First and Fourteenth Amendments would not permit control of speech within such a center to depend upon the speech’s content. For while a municipality may constitutionally impose reasonable time, place, and manner regulations on the use of its streets and sidewalks for First Amendment purposes, see Cox v. New Hampshire, 312 U. S. 569; Poulos v. New Hampshire, 345 U. S. 395, and may even forbid altogether such use of some of its facilities, see Adderley v. Florida, 385 U. S. 39; what a municipality may not do under the First and Fourteenth Amendments is to discriminate in the regulation of expression on the basis of the content of that expression, Erznoznik v. City of Jacksonville, 422 U. S. 205. “[A]bove all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” Police Dept. of Chicago v. Mosley, 408 U. S. 92, 95. It conversely follows, therefore, that if the respondents in the Lloyd case did not have a First Amendment right to enter that shopping center to distribute handbills concerning Vietnam, then the pickets in the present case did not have a First Amendment right to enter this shopping center for the purpose of advertising their strike against the Butler Shoe Co.
We conclude, in short, that under the present state of the law the constitutional guarantee of free expression has no part to play in a case such as this.
Ill
From what has been said it follows that the rights and liabilities of the parties in this case are dependent exclusively upon the National Labor Relations Act. Under the Act the task of the Board, subject to review by the courts, is to resolve conflicts between § 7 rights and private property rights, “and to seek a proper accommodation between the two.” Central Hardware Co. v. NLRB, 407 U. S., at 543. What is “a proper accommodation” in any situation may largely depend upon the content and the context of the § 7 rights being asserted. The task of the Board and the reviewing courts under the Act, therefore, stands in conspicuous contrast to the duty of a court in applying the standards of the First Amendment, which requires “above all else” that expression must not be restricted by government “because of its message, its ideas, its subject matter, or its content.”
In the Central Hardware case, and earlier in the case of NLRB v. Babcock & Wilcox Co., 351 U. S. 105, the Court considered the nature of the Board's task in this area under the Act. Accommodation between employees’ § 7 rights and employers’ property rights, the Court said in Babcock & Wilcox, “must be obtained with as little destruction of one as is consistent with the maintenance of the other.” 351 U. S., at 112.
Both Central Hardware and Babcock & Wilcox involved organizational activity carried on by nonemploy-ees on the employers’ property. The context of the § 7 activity in the present case was different in several respects which may or may not be relevant in striking the proper balance. First, it involved lawful economic strike activity rather than organizational activity. See Steelworkers v. NLRB, 376 U. S. 492, 499; Bus Employees v. Missouri, 374 U. S. 74, 82; NLRB v. Erie Resistor Corp., 373 U. S. 221, 234. Cf. Houston Insulation Contractors Assn. v. NLRB, 386 U. S. 664, 668-669. Second, the § 7 activity here was carried on by Butler’s employees (albeit not employees of its shopping center store), not by outsiders. See NLRB v. Babcock & Wilcox Co., supra, at 111-113. Third, the property interests impinged upon in this case were not those of the employer against whom the § 7 activity was directed, but of another.
The Babcock & Wilcox opinion established the basic objective under the Act: accommodation of § 7 rights and private property rights “with as little destruction of one as is consistent with the maintenance of the other/’ The locus of that accommodation, however, may fall at differing points along the spectrum depending on the nature and strength of the respective § 7 rights and private property rights asserted in any given context. In each generic situation, the primary responsibility for making this accommodation must rest with the Board in the first instance. See NLRB v. Babcock & Wilcox, supra, at 112; cf. NLRB v. Erie Resistor Corp., supra, at 235-236; NLRB v. Truckdrivers Union, 353 U. S. 87, 97. “The responsibility to adapt the Act to changing patterns of industrial life is entrusted to the Board.” NLRB v. Weingarten, Inc., 420 U. S. 251, 266.
For the reasons stated in this opinion, the judgment is vacated and the case is remanded to the Court of Appeals with directions to remand to the National Labor Relations Board, so that the case may be there considered under the statutory criteria of the National Labor Relations Act alone.
It is so ordered.
Mr. Justice Stevens took no part in the consideration or decision of this case.
The Butler warehouse was not located within the North DeKalb Shopping Center.
Section 7, 29 U. S. C. § 157, provides:
“Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 158 (a) (3) of this title.”
Hudgens v. Local 315, Retail, Wholesale & Dept. Store Union, 192 N. L. R. B. 671. Section 8(a)(1) makes it an unfair labor practice for “an employer” to “restrain, or coerce employees” in the exercise of their § 7 rights. While Hudgens was not the employer of the employees involved in this case, it seems to be undisputed that he was an employer engaged in commerce within the meaning of §§ 2 (6) and (7) of the Act, 29 ü. S. C. §§ 152 (6) and (7). The Board has held that a statutory “employer” may violate § 8 (a) (1) with respect to employees other than his own. See Austin Co., 101 N. L. R. B. 1257, 1258-1259. See also § 2 (13) of the Act, 29 U. S. C. §152 (13).
Hudgens v. Local 315, Retail, Wholesale & Dept. Store Union, 205 N. L. R. B. 628.
Insofar as the two shopping centers differed as such, the one in Lloyd more closely resembled the business section in Chickasaw, Ala.:
“The principal differences between the two centers are that the Lloyd Center is larger than Logan Valley, that Lloyd Center contains more commercial facilities, that Lloyd Center contains a range of professional and nonprofessional services that were not found in Logan Valley, and that Lloyd Center is much more intertwined with public streets than Logan Valley. Also, as in Marsh, supra, Lloyd’s private police are given full police power by the city of Portland, even though they are hired, fired, controlled, and paid by the owners of the Center. This was not true in Logan Valley.” 407 U. S., at 575 (Marshall, J., dissenting).
See id., at 570 (Marshall, J., dissenting).
This was the entire thrust of Mr. Justice Marshall’s dissenting opinion in the Lloyd case. See id., at 584.
Mr. Justice White clearly recognized this principle in his Logan Valley dissenting opinion. 391 U. S., at 339.
The Court has in the past held that some expression is not protected “speech” within the meaning of the First Amendment. Roth v. United States, 354 U. S. 476; Chaplinsky v. New Hampshire, 315 U. S. 568.
A wholly different balance was struck when the organizational activity was carried on by employees already rightfully on the employer’s property, since the employer’s management interests rather than his property interests were there involved. Republic Aviation Corp. v. NLRB, 324 U. S. 793. This difference is “one of substance.” NLRB v. Babcock & Wilcox Co., 351 U. S., at 113.
This is not to say that Hudgens was not a statutory “employer” under the Act. See n. 3, supra.
351 U. S., at 112. This language was explicitly reaffirmed as stating “the guiding principle” in Central Hardware Co. v. NLRB, 407 U. S. 539, 544.
Question: What is the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed?
A. stay, petition, or motion granted
B. affirmed (includes modified)
C. reversed
D. reversed and remanded
E. vacated and remanded
F. affirmed and reversed (or vacated) in part
G. affirmed and reversed (or vacated) in part and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to or from a lower court
K. no disposition
Answer:
|
sc_decisiondirection
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the ideological "direction" of the decision ("liberal", "conservative", or "unspecifiable"). Use "unspecifiable" if the issue does not lend itself to a liberal or conservative description (e.g., a boundary dispute between two states, real property, wills and estates), or because no convention exists as to which is the liberal side and which is the conservative side (e.g., the legislative veto). Specification of the ideological direction comports with conventional usage. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. In interstate relations and private law issues, consider unspecifiable in all cases.
BROWN et al. v. LOUISIANA.
No. 41.
Argued December 6, 1965.
Decided February 23, 1966.
Carl Rachlin argued the cause for petitioners. With him on the brief were Robert F. Collins, Nils R. Douglas, Murphy W. Bell, Floyd McKissick and Marvin M. Karpatkin.
Richard Kilbourne argued the cause for respondent. With him on the brief were Jack P. F. Qremillion, Attorney General of Louisiana, and Carroll Buck, First Assistant Attorney General.
Mr. Justice Fortas
announced the judgment of the Court and an opinion in which The Chief Justice and Mr. Justice Douglas join.
This is the fourth time in little more than four years that this Court has reviewed convictions by the Louisiana courts for alleged violations, in a civil rights context, of that State’s breach of the peace statute. In the three preceding cases the convictions were reversed. Garner v. Louisiana, 368 U. S. 157, decided in December 1961, involved sitins by Negroes at lunch counters catering only to whites. Taylor v. Louisiana, 370 U. S. 154, decided in June 1962, concerned a sit-in by Negroes in a waiting room at a bus depot, reserved “for whites only.” Cox v. Louisiana, 379 U. S. 536, decided in January 1965, involved the leader of some 2,000 Negroes who demonstrated in the vicinity of a courthouse and jail to protest the arrest of fellow demonstrators. In each of these cases the demonstration was orderly. In each, the purpose of the participants was to protest the denial to Negroes of rights guaranteed them by state and federal constitutions and to petition their governments for redress of grievances. In none was there evidence that the participants planned or intended disorder. In none were there circumstances which might have led to a breach of the peace chargeable to the protesting participants.
In Gamer the Court found the record utterly barren of evidence to support convictions under Title 14, Article 103 (7) of the Louisiana Criminal Code, which then defined the crime of “disturbing the peace” in specific detail. The record contained no evidence of boisterous or disorderly actions or of “passive conduct likely to cause a public disturbance.” 368 U. S., at 173-174. In Taylor, which arose under the Louisiana statute as amended to read in its present form, see p. 138, infra, the Court in a per curiam opinion set aside the convictions despite evidence of “restlessness” among the white onlookers. Finally, in Cox, the Court held that the facts would not permit application of Louisiana’s breach of the peace statute, despite the large scale of the demonstrations and the fact that petitioner’s speech occasioned “grumbling” on the part of white onlookers. Petitioner and the demonstrators as a group, though “well behaved,” were far from silent, 379 U. S., at 543, 546. As an “additional reason” why the conviction could not be sustained, the Court, citing Terminiello v. Chicago, 337 U. S. 1, and Edwards v. South Carolina, 372 U. S. 229, held that were the statute to be defined and applied as the Louisiana Supreme Court had done, it would be unconstitutional because the vagueness and breadth of the definition “would allow persons to be punished merely for peacefully expressing unpopular views.” 379 U. S., at 551. See Edwards v. South Carolina, supra, at 237.
Since the present case was decided under precisely the statute involved in Cox but before our decision in that case was announced, it might well be supposed that, without further ado, we would vacate and remand in light of Cox. But because the incident leading to the present convictions occurred in a public library and might be thought to raise materially different questions, we have heard argument and have considered the case in extenso.
The locus of the events was the Audubon Regional Library in the town of Clinton, Louisiana, Parish of East Feliciana. The front room of the building was used as a public library facility where patrons might obtain library services. It was a small room, containing two tables and one chair (apart from the branch assistant’s desk and chairs), a stove, a card catalogue, and open book shelves. The room was referred to by the regional librarian, Mrs. Perkins, as “the adult reading-room, the adult service-room.” The library permitted “registeréd borrowers” to “browse” among the books in the room or to borrow books. A “registered borrower” was one who could produce an identification card showing that he was registered by the Audubon Regional Library. Other space in the building included the headquarters of the regional library.
The Audubon Regional Library is operated jointly by the Parishes of East Feliciana, West Feliciana, and St. Helena. It has three branches and two bookmobiles. The bookmobiles served 33 schools, both white and Negro, as well as “individuals.” One of the bookmobiles was red, the other blue. The red bookmobile served only white persons. The blue bookmobile served only Negroes. It is a permissible inference that no Negroes used the branch libraries.
The registration cards issued to Negroes were stamped with the word “Negro.” A Negro in possession of such a card was entitled to borrow books, but only from the blue bookmobile. A white person could not receive service from the blue bookmobile. He would have to wait until the red bookmobile came around, or would have to go to a branch library.
This tidy plan was challenged on Saturday, March 7, 1964, at about 11:30 a. m. Five young Negro males, all residents of East or West Feliciana Parishes, went into the adult reading or service room of the Audubon Regional Library at Clinton. The branch assistant, Mrs. Katie Reeves, was alone in the room. She met the men “between the tables” and asked if she “could help.” Petitioner Brown requested a book, “The Story of the Negro” by Arna Bontemps. Mrs. Reeves checked the card catalogue, ascertained that the Branch did not have the book, so advised Mr. Brown, and told him that she would request the book from the State Library, that he would be notified upon its receipt and that “he could either pick it up or it would be mailed to him.” She told him that “his point of service was a bookmobile or it could be mailed to him.” Mrs. Reeves testified that she expected that the men would then leave; they did'not, and she asked them to leave. They did not. Petitioner Brown sat down and the others stood near him. They said nothing; there was no noise or boisterous talking. Mrs. Reeves called Mrs. Perkins, the regional librarian, who was in another room. Mrs. Perkins asked the men to leave. They remained.
Neither Mrs. Reeves nor Mrs. Perkins had called the sheriff, but in “10 to 15 minutes” from the time of the arrival of the men at the library, the sheriff and deputies arrived. The sheriff asked the Negroes to leave. They said they would not. The sheriff then arrested them. The sheriff had been notified that morning that members of the Congress of Racial Equality “were going to sit-in” at the library. Ordinarily, the sheriff testified, CORE tells him when they are going to demonstrate or picket. The sheriff was standing at his “place of business” when he saw “these 5 colored males coming down the street.” He saw them enter the library. He called the jail to notify his deputies, and he reached the library immediately after the deputies got there. When the sheriff arrived, there was no noise, no disturbance. He testified that he arrested them “for not leaving a public building when asked to do so by an officer.”
The library obtained the requested book and mailed it to Mr. Brown on March 28, 1964. An accompanying card said, “You may return the book either by mail or to the Blue Bookmobile.” The reference to the color of the vehicle was obviously not designed to facilitate identification of the library vehicle. The blue bookmobile is for Negroes and for Negroes only.
In the course of argument before this Court, counsel for both the State and petitioners stated that the Clinton Branch was closed after the incident of March 7. Counsel for the State also advised the court that the use of cards stamped “Negro” continues to be the practice of the regional library.
On March 25, 1964, Mr. Brown and his four companions were tried and found guilty. Brown was sentenced to pay $150 and costs, and in default thereof to spend 90 days in the parish jail. His companions were sentenced to $35 and costs, or 15 days in jail. The charge was that they had congregated together in the public library of Clinton, Louisiana, “with the intent to provoke a breach of the peace and under circumstances such that a breach of the peace might be occasioned thereby” and had failed and refused “to leave said premises when ordered to do so” by the librarian and by the sheriff.
The Louisiana breach of peace statute under which they were accused reads as follows: “Whoever with intent to provoke a breach of the peace, or under circumstances such that a breach of the peace may be occasioned thereby: (1) crowds or congregates with others . . . in . . . a . . . public place or building . . . and who fails or refuses to disperse and move on, or disperse or move on, when ordered so to do by any law enforcement officer ... or any other authorized person . . . shall be guilty of disturbing the peace.”
Under Louisiana law, these convictions were not ap-pealable. See Garner v. Louisiana, supra, at 161-162. Petitioners sought discretionary review by the Louisiana Supreme Court, which denied their application, finding no error. This Court granted certiorari, 381 U. S. 901, and we reverse.
We may briefly dispose of certain threshold problems. Petitioners cannot constitutionally be convicted merely because they did not comply with an order to leave the library. See Shuttlesworth v. City of Birmingham, 382 U. S. 87, 90-91; Wright v. Georgia, 373 U. S. 284, 291-293; Johnson v. Virginia, 373 U. S. 61; cf. Cox v. Louisiana, supra, at 579 (separate opinion of Mr. Justice Black). The statute itself reads in the conjunctive; it requires both the defined breach of peace and an order to move on. Without reference to the statute, it must be noted that petitioners’ presence in the library was unquestionably lawful. It was a public facility, open to the public. Negroes could not be denied access since white persons were welcome. Wright v. Georgia, supra, at 292; Watson v. City of Memphis, 373 U. S. 526; Johnson v. Virginia, supra. Petitioners’ deportment while in the library was unexceptionable. They were neither loud, boisterous, obstreperous, indecorous nor impolite. There is no claim that, apart from the continuation — for ten or fifteen minutes — of their presence itself, their conduct provided a basis for the order to leave, or for a charge of breach of the peace.
We come, then, to the barebones of the problem. Petitioners, five adult Negro men, remained in the library room for a total of ten or fifteen minutes. The first few moments were occupied by a ritualistic request for service and a response. We may assume that the response constituted service, and we need not consider whether it was merely a gambit in the ritual. This ceremony being out of the way, the Negroes proceeded to the business in hand. They sat and stood in the room, quietly, as monuments of protest against the segregation of the library. They were arrested and charged and convicted of breach of the peace under a specific statute.
If we compare this situation with that in Gamer, we must inevitably conclude that here, too, there is not the slightest evidence which would or could sustain the application of the statute to petitioners. The statute requires a showing either of “intent to provoke a breach of the peace,” or of “circumstances such that a breach of the peace may be occasioned” by the acts in question. There is not in this case the slightest hint of either. We need not be beguiled by the ritual of the request for a copy of “The Story of the Negro.” We need not assume that petitioner Brown and his friends were in search of a book for night reading. We instead rest upon the manifest fact that they intended to and did stage a peaceful and orderly protest demonstration, with no “intent to provoke a breach of the peace.” See Garner v. Louisiana, supra, at 174.
Nor were the circumstances such that a breach of the peace might be “occasioned” by their actions, as the statute alternatively provides. The library room was empty, except for the librarians. There were no other patrons. There were no onlookers except for the vigilant and forewarned sheriff and his deputies. Petitioners did nothing and said nothing even remotely provocative. The danger, if any existed, was surely less than in the course of the sit-in at the “white” lunch counters in Gamer. And surely there was less danger that a breach of the peace might occur from Mrs. Katie Reeves and Mrs. Perkins in the adult reading room of the Clinton Branch Library than that disorder might result from the “restless” white people in the bus depot waiting room in Taylor, or from the 100 to 300 “grumbling” white onlookers in Cox. But in each of these cases, this Court refused to countenance convictions under Louisiana’s breach of the peace statute.
The argument of the State of Louisiana, however, is that the issue presented by this case is much simpler than our statement would indicate. The issue, asserts the State, is simply that petitioners were using the library room “as a place in which to loaf or make a nuisance of themselves.” The State argues that the “test” — the permissible civil rights demonstration — was concluded when petitioners entered the library, asked for service and were served. Having satisfied themselves, the argument runs, that they could get service, they should have departed. Instead, they simply sat there, “staring vacantly,” and this was “enough to unnerve a woman in the situation Mrs. Reeves was in.”
This is a piquant version of the affair, but the matter is hardly to be decided on points. It was not a game. It could not be won so handily by the gesture of service to this particular request. There is no dispute that the library system was segregated, and no possible doubt that these petitioners were there to protest this fact. But even if we were to agree with the State’s ingenuous characterization of the events, we would have to reverse. There was no violation of the statute which petitioners are accused of breaching; no disorder, no intent to provoke a breach of the peace and no circumstances indicating that a breach might be occasioned by petitioners’ actions. The sole statutory provision invoked by the State contains not a word about occupying the reading room of a public library for more than 15 minutes, any more than it purports to punish the bare refusal to obey an unexplained command to withdraw from a public street, see Garner, supra, or public building. We can find nothing in the language of the statute, in fact, which would elevate the giving of cause for Mrs. Reeves’ discomfort, however we may sympathize with her, to a crime against the State of Louisiana. Cf. Shuttlesworth v. City of Birmingham, 382 U. S. 87, 101 (concurring opinion).
But there is another and sharper answer which is called for. We are here dealing with an aspect of a basic constitutional right — the right under the First and Fourteenth Amendments guaranteeing freedom of speech and of assembly, and freedom to petition the Government for a redress of grievances. The Constitution of the State of Louisiana reiterates these guaranties. See Art. I, §§ 3, 5. As this Court has repeatedly stated, these rights are not confined to verbal expression. They embrace appropriate types of action which certainly include the right in a peaceable and orderly manner to protest by silent and reproachful presence, in a place where the protestant has every right to be, the unconstitutional segregation of public facilities. Accordingly, even if the accused action were within the scope of the statutory instrument, we would be required to assess the constitutional impact of its application, and we would have to hold that the statute cannot constitutionally be applied to punish petitioners’ actions in the circumstances of this case. See Edwards v. South Carolina, supra, at 235. The statute was deliberately and purposefully applied solely to terminate the reasonable, orderly, and limited exercise of the right to protest the unconstitutional segregation of a public facility. Interference with this right, so exercised, by state action is intolerable under our Constitution. Wright v. Georgia, supra, at 292.
It is an unhappy circumstance that the locus of these events was a public library — a place dedicated to quiet, to knowledge, and to beauty. It is a sad commentary that this hallowed place in the Parish of East Feliciana bore the ugly stamp of racism. It is sad, too, that it was a public library which, reasonably enough in the circumstances, was the stage for a confrontation between those discriminated against and the representatives of the offending parishes. Fortunately, the circumstances here were such that no claim can be made that use of the library by others was disturbed by the demonstration. Perhaps the time and method were carefully chosen with this in mind. Were it otherwise, a factor not present in this case would have to be considered. Here, there was no disturbance of others, no disruption of library activities, and no violation of any library regulations.
A State or its instrumentality may, of course, regulate the use of its libraries or other public facilities. But it must do so in a reasonable and nondiscriminatory manner, equally applicable to all and administered with equality to all. It may not do so as to some and not as to all. It may not provide certain facilities for whites and others for Negroes. And it may not invoke regulations as to use — whether they are ad hoc or general — as a pretext for pursuing those engaged in lawful, constitutionally protected exercise of their fundamental rights. Cf. Wright v. Georgia, supra, at 293.
The decision below is
Reversed.
Participants in an orderly demonstration in a public place are not chargeable with the danger, unprovoked except by the fact of the constitutionally protected demonstration itself, that their critics might react with disorder or violence. See Cox v. Louisiana, supra, at 551-552; Wright v. Georgia, 373 U. S. 284, 293; cf. Terminiello v. Chicago, 337 U. S. 1. Compare Feiner v. New York, 340 U. S. 315, where one speaker was haranguing 75 or 80 “restless” listeners; Chaplinsky v. New Hampshire, 315 U. S. 568 (“fighting words”); cf. Niemotko v. Maryland, 340 U. S. 268, 289 (concurring opinion of Frankfurter, J.). See generally on the problem of the “heckler’s veto,” Kalven, The Negro and the First Amendment, pp. 140-160 (1965).
The statute then read: “Disturbing the peace is the doing of any of the following in such a manner as would foreseeably disturb or alarm the public:
“(1) Engaging in a fistic encounter; or
“(2) Using of any unnecessarily loud, offensive, or insulting language; or
“(3) Appearing in an intoxicated condition; or
“(4) Engaging in any act in a violent and tumultuous manner by any three or more persons; or
“(5) Holding of an unlawful assembly; or
“(6) Interruption of any lawful assembly of people; or
“(7) Commission of any other act in such a manner as to unreasonably disturb or alarm the public.”
While it was not disputed that the demonstration was “orderly and well-controlled,” the demonstrators clapped and sang and petitioner spoke in protest of arrests of certain other civil rights demonstrators. In addition to the breach of the peace charge, Cox was charged with obstructing public passageways and with demonstrating near a courthouse. Convictions on these grounds were also reversed. See 379 U. S. 536, 559.
The inference finds support in testimony both of the sheriff and of Mrs. Laura Spears, a witness for the defense who was employed as the assistant in charge of the blue bookmobile.
La. Rev. Stat. §14:103.1 (Cum. Supp. 1962).
See, e. g., N. A. A. C. P. v. Button, 371 U. S. 415, 428-431; Garner v. Louisiana, supra, at 201 (separate opinion of Mr. Justice Harlan); N. A. A. C. P. v. Alabama, 357 U. S. 449, 460-463; Stromberg v. California, 283 U. S. 359, 369. See Kalven, op. cit. supra, n. 1, at 129-138.
Cf. Wright v. Georgia, supra.
Question: What is the ideological direction of the decision?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
|
songer_const1
|
0
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited provision of the U.S. Constitution in the headnotes to this case. Answer "0" if no constitutional provisions are cited. If one or more are cited, code the article or amendment to the constitution which is mentioned in the greatest number of headnotes. In case of a tie, code the first mentioned provision of those that are tied. If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
UNITED STATES of America ex rel. Theodore GEISLER, Appellant, v. Gilbert A. WALTERS, Superintendent, Western Correctional Institution, Pittsburgh, Pennsylvania.
No. 74-1345.
United States Court of Appeals, Third Circuit.
Final Submission Dec. 16, 1974.
Decided Feb. 5, 1975.
Joseph N. Bongiovanni, III, Speese & Kephart, Philadelphia, Pa., for appellant.
John J. Hickton, Dist. Atty. of Allegheny County, John M. Tighe, First Asst. Dist. Atty., Robert L. Eberhardt, Robert L. Campbell, J. Kent Culley, Asst. Dist. Attys., Pittsburgh, Pa., for appellee.
Before BIGGS, ADAMS and GARTH, Circuit Judges.
OPINION OF THE COURT
BIGGS, Circuit Judge.
This is an appeal from the district court’s dismissal without a hearing of the relator-appellant’s, Geisler’s, application for habeas corpus. The district court ruled that Geisler had failed to exhaust his state remedies. The instant appeal followed. Its disposition requires our examination of the complicated history of Geisler’s various motions and petitions and a determination of whether he has either exhausted his state remedies or been victimized by circumstances rendering those remedies ineffective. 28 U.S.C. § 2254(b).
I. FACTUAL BACKGROUND
Geisler was tried by a jury on October 19, 1962 for armed robbery and violation of the Uniform Firearms Act. His trial was conducted by Judge Robert Morris of the Pennsylvania Court of Common Pleas. Geisler was found guilty on both counts, and his counsel filed a motion for a new trial but subsequently withdrew it. On February 15, 1963, Geisler was sentenced to a term of 1Lh to 15 years. At a hearing on March 3, 1963, his counsel requested leave to argue the original motion for a new trial. Leave was denied.
In 1964, Geisler filed a petition for habeas corpus in the state court. Judge Morris dismissed that petition without a hearing on October 6, 1964 because it raised issues which he deemed were not properly before him in a habeas corpus proceeding. On appeal, the Pennsylvania Superior Court affirmed per curiam. Commonwealth ex rel. Geisler v. Maroney, 205 Pa. Super. 739, 209 A.2d 437 (1965). The Pennsylvania Supreme Court denied allocatur on August 30, 1965.
Geisler then filed a pro se petition pursuant to the Pennsylvania Post Conviction Hearing Act, 19 P.S. § 1180-1 et seq., on October 23, 1967. On March 7, 1968 Judge Morris conducted a hearing on the petition, having appointed the Allegheny County Public Defender as counsel for Geisler. The issue was stated to be whether Geisler had been deprived of his right to appeal. On March 4, 1969, Judge Morris filed an opinion and order dismissing the PCHA petition but permitting Geisler to file a motion for a new trial nunc pro tunc. The Public Defender again served as counsel for Geisler. On June 27, 1969, Geisler filed pro se a motion for a new trial, as follows: (1) he was denied effective assistance of counsel; (2) the identification was so impermissibly suggestive as to be constitutionally infirm; (3) the trial court erred in permitting introduction into evidence of the appellant’s prior record of convictions under the Uniform Firearms Act; (4) the admission of prejudicial and unrelated evidence was improper; (5) his arrest was without probable cause; (6) the Assistant District Attorney engaged in prosecutorial misconduct; (7) the trial judge’s charge to the jury denied Geisler a fair trial; and (8) the jury’s double verdict resulted in double jeopardy to the appellant.
On December 17, 1969, six months after the motion for new trial was filed, a court consisting of Judge Morris and Judge Samuel J. Feigus heard oral argument on the motion and took it under advisement. On April 27, 1970, ten months after Geisler filed his motion of June 27, 1969 for a new trial, and again on July 16, 1970, thirteen months after the filing of his motion for a new trial on June 27, 1969, Geisler filed petitions for disposition of his motion for a new trial. These petitions were identical, the second having been filed because the first did not reach the clerk’s office. In substance, they were a procedural request that Judge Morris act immediately on the motion for a new trial and not a substantive enumeration of Geisler’s claims. While appellant specifically elaborated upon several contentions, including denial of effective assistance of counsel and prejudice arising from introduction into evidence of appellant’s prior record, the petition also referred to appellant’s motion for a new trial and the oral argument on that motion.
On September 11, 1970, fifteen months after Geisler had filed his motion for a new trial, Judge Morris filed the following opinion and order:
“This matter is before the Court on a Petition which the Defendant describes as a ‘Petition for Disposition and Remedy as a Matter of Law, a New ■ Trial.’
“Upon a careful review of the Petition in the light of the petitions heretofore filed, hearing held, Orders made by this Court as well as the Superior Court, we can see nothing in the Petition of a meritorious nature.
“On March 4, 1969, this Court filed its Opinion and Order granting to the Defendant the right to file a motion for new trial, nunc pro tunc. This Order was made as a result of a Post Conviction Petition filed by the Defendant alleging previously that he had been improperly denied his right of appeal. After hearing and testimony taken the Order granting him the right to appeal was made. For reasons known only to the defendant, no action was taken by the defendant to perfect such appeal. We refer to our Opinion and Order of March 4, 1969, wherein we review the case from its inception. We see no merit to Defendant’s allegations. Accordingly, we make the following ORDER. AND NOW, September 11, 1970, for the reasons stated above the prayer of the Petition is denied and the Petition is dismissed” (emphasis added).
The foregoing opinion of the learned Pennsylvania trial judge is not entirely clear, but his order is clear enough for he states that “the prayer of the Petition is denied and the Petition is dismissed.” It would appear to us that, whatever may have been in the mind of Judge Morris, the order of September 11, 1970 was an appealable final order.
Geisler appealed this decision to the Pennsylvania Superior Court, which granted him leave to file a brief pro se in addition to the brief which the Public Defender filed in his behalf. The Public Defender’s brief dealt only with the identification issue. Geisler’s pro se brief raised all the issues which had been contained in the motion for a new trial. It argued as well that appellant had been denied a fair trial and effective assistance of counsel at all proceedings subsequent to trial. On June 30, 1971, the Superior Court affirmed the judgment of sentence per curiam. Commonwealth v. Geisler, 218 Pa. Super. 911, 279 A.2d 198 (1971). Both appellant and the Public Defender then petitioned for allocatur to the Supreme Court of Pennsylvania. Geisler’s petition contained all eight issues raised in the motion for a new trial. Those petitions were denied per curiam on January 14, 1972.
Geisler then turned to the federal courts for relief and filed a petition for habeas corpus on March 20, 1972 in the United States District Court for the Western District of Pennsylvania. The Honorable Joseph Weis, then a district court judge, conducted a hearing on August 28, 1972 to determine whether an evidentiary hearing should be held on the petition. Judge Weis concluded that the exhaustion requirement had not been met. Possibly confusion arose from the fact that Geisler filed two petitions for disposition of his motion for a new trial. The learned district judge apparently took the view that Geisler’s motion for a new trial had not been disposed of on the merits by Judge Morris and that the Court of Common Pleas had disposed only of the petitions asking disposition of his motion for a new trial. Regardless of the basis for this decision, Judge Weis, having concluded that Judge Morris’ order and opinion of September 11, 1970 were not a disposition of Geisler’s motion for a new trial, advised President Judge Ellenbogen of the Allegheny County Court of Common Pleas of this discovery by letter on August 30, 1972 and requested that his court formally dispose of the motion. On October 24, 1972 Judge Morris formally denied the appellant’s motion for a new trial. On October 26, 1972, Judge Weis dismissed Geisler’s federal habeas corpus petition for failure to exhaust state remedies. The United States District Court denied appellant’s motion for reconsideration, and this court denied a certificate of probable cause on March 1, 1973 (C.A. Misc. Rec. No. 72-8114). We cannot agree with Judge Weis’ conclusion that Judge Morris’ decision and order of September 11, 1970 were not a sufficient disposition of Geisler’s claims for the purpose of exhaustion of state remedies.
It should be observed that three years and four months passed before the post trial motion was “formally” disposed of by the Court of Common Pleas, viz., the period from June 27, 1969 to October 24, 1972. Nor perhaps would disposition have been made even on this late date had it not been for the letter of Judge Weis to Judge Ellenbogen.
Geisler next moved to appeal Judge Morris’ order of October 24, 1972 in the Pennsylvania Superior Court. In a per curiam affirmance of that judgment the Superior Court on September 19, 1973 denied appellant’s application for the third time. Commonwealth v. Geisler, 226 Pa.Super. 722, 309 A.2d 817 (1973).
Then occurred whát we deem to be a curious circumstance. In the first federal habeas corpus proceeding, that of March 20, 1972, a United States Magistrate appointed as counsel for Geisler a member of the bar of Allegheny County. Counsel continued to advise appellant after the case returned to the state tribunals and, when the Superior Court rejected Geisler’s appeal on September 19, 1973, wrote Geisler that he had exhausted his state remedies and that he could now file his “Federal Court Petition for Writ of Habeas Corpus”. The substance of the letter is set out in the footnote. At this point, Geisler, as would be expected, apparently abandoned the thought of any appeal to the Supreme Court of Pennsylvania. In view of the great vigor with which Geisler sought relief from his judgments of conviction, we think he would have applied for allocatur, probably pro se, and if allocatur had been denied, there could be no question but that he would have exhausted his state remedies. Geisler foreclosed himself from this course, however, probably because of the advice of counsel.
Geisler then filed a second petition for federal habeas corpus and this was referred to Judge Snyder, who rejected it on the ground that Geisler had not exhausted his state remedies. It is this denial of habeas corpus which is before us on this appeal.
II. THE LAW AND THE DISPOSITION OF THIS CASE
(A)(1) Geisler has exhausted his state remedies. He filed a petition for state habeas corpus. This was refused. On appeal to the Superior Court the judgment was affirmed and allocatur was denied by the Supreme Court. He also filed a petition under the PCHA and Judge Morris, while on the record denying the relief sought, nonetheless granted it in substance by giving Geisler leave to file a motion for a new trial nunc pro tunc. In our view it is not necessary that he again make use of the provisions of the PCHA or raise these same issues again on collateral attack. “[T]he Supreme Court made clear in Brown v. Allen that the exhaustion doctrine is not intended to give the states more than one full chance.” Developments in the Law — Federal Habeas Corpus, 83 Harv. L.Rev. 1038 at 1096 (1970) (footnote omitted).
We cannot agree with our Brother Weis or with Judge Snyder that Judge Morris’ order of September 11, 1970, the affirmance of that judgment by the Superior Court, and the denial of allocatur by the state Supreme Court did not exhaust Geisler’s state remedies. As we have stated earlier, Geisler’s pro se motion for a new trial and his appeals’ briefs embraced identical issues. They likewise included all issues raised previously in the state habeas corpus proceedings and all issues, save that of denial of the right to appeal, raised in the PCHA proceeding. More importantly, those same issues have been raised in both federal habeas corpus petitions. Geisler’s petitions and briefs are inartistic and do not fit exactly or with clockwork precision into the Pennsylvania state court procedures, but since he was acting pro se, they were sufficiently adapted to their purpose to put the Superior Court and Supreme Court of Pennsylvania on notice as to the issues raised and the relief sought. See United States ex rel. Turner v. Rundle, supra; United States ex rel. Montgomery v. Brierley, 414 F.2d 552, 555 (3d Cir. 1969), cert. denied 399 U.S. 912, 90 S.Ct. 2206, 26 L.Ed.2d 566 (1970).
We deem it imperative to note that the exhaustion doctrine does not require that the state courts have actually ruled on the merits of the claims, but merely that they have had those contentions presented to them. See Brown v. Allen, supra, 344 U.S. at 448-449, note 3, 73 S.Ct. 397; United States ex rel. Turner v. Rundle, supra, 438 F.2d at 845; Ralls v. Manson, 375 F.Supp. 1271 (D.Conn.1974). In this regard, the decision as to whether exhaustion has occurred should be based on the record and pleading before the state courts not the length of their opinions. United States v. Pate, 240 F.Supp. 696, 704 (N.D.Ill.1965). See also Sokol, Federal Habeas Corpus, § 22.2 (2d ed. 1969). While the case before us is most certainly sui gen eris, we emphasize that “[i]t is the legal issues that are to be exhausted, not the petitioner.” Park v. Thompson, 356 F.Supp. 783, 788 (D.Haw.1973).
(2) If we assume that our Brother Weis’ position is correct as to the “formal” disposition of Geisler’s motion for a new trial, we are confronted with a further dilemma. The motion for a new trial was filed on June 27, 1969 and was not “formally” disposed of by Judge Morris until October 24, 1972, a period of three years and four months. We hesitate to repeat the ancient statement that justice delayed is justice denied, but there can be no doubt that such an inordinate delay is an adequate basis for federal habeas corpus relief even though state remedies have not been exhausted. See, e. g., United States ex rel. Senk v. Brierley, 471 F.2d 657, 660 (3d Cir. 1973); Tramel v. Idaho, 459 F.2d 57, 58 (10th Cir. 1972); Ralls v. Manson, supra, 375 F.Supp. at 1282; Phillips v. Tollett, 330 F.Supp. 776, 778 (E.D.Tenn.1971).
(B) As we have pointed out, counsel appointed for Geisler at the time of the first federal habeas corpus proceeding by the United States Magistrate was unaware of what constituted exhaustion of state remedies and expressly informed Geisler that he did not need to apply for allocatur to the Supreme Court of Pennsylvania after the Superior Court had affirmed the decision of the Court of Common Pleas of Allegheny County. This court has taken the position that effective representation is to be judged by a standard of normal and reasonable competency as suggested in McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). See the cases cited in Case Note, 43 Fordham L.Rev. 310 at 313-315 (1974).
Assuming, however, that the position taken by the learned district judges, i. e., to the effect that Judge Morris’ order of September 11, 1970 was insufficient, we conclude that Geisler is entitled to have his petition heard because of the provisions of 28 U.S.C. § 2254(b), which state that habeas is available if there exists “circumstances rendering [State corrective] process ineffective »
III. CUSTODY FOR THE PURPOSE OF FEDERAL HABEAS CORPUS
One point remains for disposition, but as we read the Government’s position, it is not really contested. The record indicates that appellant is presently on “furlough” from the State Correctional Institution at Pittsburgh. The restraints upon Geisler’s freedom, however, constitute “custody” within the terms of 28 U.S.C. §§ 2241(c), 2254(a) for the purposes of federal habeas corpus jurisdiction.
IV. CONCLUSION
The judgment will be reversed and the case remanded. All issues save that of exhaustion of state remedies remain open for disposition by the district court.
. Geisler had been indicted at No. 3 October Sessions, 1962 in the Criminal Courts of Allegheny County on counts of armed robbery (formerly, 18 P.S. § 4705; now, 18 C.P.S. §§ 3701 and 6103) and receiving stolen goods (formerly, 18 P.S. § 4817; now, 18 C.P.S. § 3925). Geisler was also indicted at No. 14 October Sessions, 1962 on a count of violation of that portion of the Uniform Firearms Act which prohibits former convicts from owning or possessing firearms (formerly, 18 P.S. § 4628(d); now, 18 C.P.S. § 6105). He and his co-defendant Wilbert Kastle were tried and convicted solely on the armed robbery and firearms violation counts.
. The issues raised by this habeas corpus petition were as follows: (1) ineffective assistanee of counsel; (2) trial court erred in permitting evidence as to prior convictions; (3) prejudicial and unrelated evidence; (4) arrest without probable cause; (5) trial judge’s instructions denied fair trial; and (6) prosecutorial misconduct.
Judge Morris’ order was as follows:
“And Now, October 6, 1964, the within petition for writ of habeas corpus is ordered filed, filing fee to be paid by Allegheny County. Inasmuch as the petition sets forth no complaints which can properly be considered under a petition for writ of habeas corpus, the petition is hereby dismissed.”
. The issues raised by the Pennsylvania Post Conviction Hearing Act petition were as follows: (1) ineffective assistance of counsel; (2) introduction into evidence of prejudicial and unrelated evidence; (3) identification; (4) arrest without probable cause; (5) denial of right to appeal; (6) use of prior criminal record; (7) prosecutorial misconduct; and (8) trial judge’s jury charge was erroneous.
Judge Morris’ order of March 4, 1969 stated in part:
“[T]he Defendant-Petitioner is hereby granted the right to file a Motion for a New Trial, nunc pro tunc.”
. Copies of the briefs and petitions filed in these appeals to the Superior and Supreme Courts of Pennsylvania were not in the record before us, a record which, as is too frequently the case in habeas corpus proceedings, is woefully lacking in this and other respects. However, copies of the briefs and petitions to these courts in the aforementioned appeals have been procured, and this court will order them to be included in and made part of the record before us so that the Reviewing Court may have a full and proper record before it. We, of course, take judicial notice of these documents, as the United States District Court could have done. See Doe v. Wohlgemuth, 505 F.2d 186 (3d Cir. 1974), note 5 at 188, citing inter alia, Funk v. Commissioner of Internal Revenue, 163 F.2d 796 (3d Cir. 1947), and Zahn v. Transamerica Corporation, 162 F.2d 36 (3d Cir. 1947). Cf. Rule 44(b), F.R.Civ.Proc., and Rule 10(e), F.R.App.Proc., 28 U.S.C.
. Geisler’s prolix petition consists of 26 typewritten pages, with numerous appendices. This petition asserts ten “grounds” for relief. These grounds when boiled down to their essence, and giving to Geisler’s pleading every advantage to be granted a pro se petition under Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972), present the same bases for relief, and none other, as were asserted in Geisler’s motion for new trial and in the aforementioned appeals’ briefs and petitions filed with the Pennsylvania Superior and Supreme Courts after Judge Morris’ order of September 11, 1970.
. On this appeal, appellant again raised the eight issues enumerated, supra. In addition, he contended that the three and a half year delay in ruling on his motion for new trial was a deprivation of due process and equal protection of the laws. The briefs filed in this appeal are not in the record before us. We have, however, gleaned the foregoing from the brief which appellee filed with us, and under these circumstances we treat this uncontradicted statement as an admission.
. Appellant alleges, and we find it noteworthy, that on March 27, 1973 during the pend-ency of this appeal before the Superior Court, the Commonwealth filed a “Petition to Dismiss Due to Prior Appellate Review of Issues.” In effect, such a petition is an admission that the Superior Court’s decision of June 30, 1971 was an adequate review of the contentions raised in Geisler’s post-trial motion. The issue of whether appellant has exhausted his state remedies would, then, turn solely on the content of the allocatur petitions rejected by the Pennsylvania Supreme Court on January 14, 1972.
. Please find enclosed the opinion of the Superior Court affirming your judgment of sentence. I now suggest that if you carry this matter further, that you can file your Federal Court Petition for Writ of Habeas Corpus as you have now exhausted the state remedies." (Emphasis added.)
. The “Issues and Grounds" presented in this petition are substantially the same as those which were before the United States District Court in Geisler’s first petition for federal habeas corpus, save two which were added, as follows:
“The district court executed fundamental error in sending petitioner back through the courts of the State, by letter and suggestive belief that the State court would remedy the flagrant abuses of a totality tainted trial, judgment and appeal, without competent counsel, which, subjected him to: a three-year delayed opinion from without jurisdiction and without trial record, on one paragraph opinion and repeat issues on appeal and affirmed on appeal on the previously affirmed appeal.”
“Where petitioner has proceeded to the only appellate court wherein his legal and rightful appeal is mandated, has he not exhausted state remedies? And/or is graceful allowance of appeal to the Supreme Court mandatory?”
We need not concern ourselves with these two claims in respect to any issue of exhaustion of remedies since their contents cannot be considered in an on-the-merits adjudication of appellant’s petition. In fact, they consist of incoherent legal jargon.
For purposes of identification and clarity, we state that the first federal petition for habeas corpus is numbered Civil No. 72-234 and the second federal petition for habeas corpus is numbered Civil No. 73-1034.
. Brown v. Allen, 344 U.S. 443 at 447, 73 S.Ct. 397, 97 L.Ed. 469 (1953); United States ex rel. Schultz v. Brierley, 449 F.2d 1286, 1287 (3d Cir. 1971); Osborn v. Russell, 434 F.2d 650, 651 (3d Cir. 1970).
. A denial of allocatur, as here, or a similar refusal to entertain an appeal constitutes a sufficient presentation for purposes of exhaustion. United States ex rel. Turner v. Rundle, 438 F.2d 839, 845 (3d Cir. 1971) (denial of allocatur by the Pennsylvania Supreme Court).
. Ralls v. Manson, supra, 375 F.Supp. at 1282: “The three and one-half year period during which the direct appeal in the instant case has been pending, although somewhat longer than the average, is by no means unique among Connecticut cases. Nevertheless, this delay in adjudicating the petitioner’s rights is clearly inordinate and excessive: it certainly offends the ‘limits to the sacrifices men must make upon the altar of comity.’ United States ex rel. Lusterino v. Dros [D.C.N.Y.], supra, 260 F.Supp. [13] at 16. As the United States Supreme Court declared in Bartone v. United States, 375 U.S. 52, 54, 84 S.Ct. 21, 22, 11 L.Ed.2d 11 (1963), ‘Where state procedural snarls or obstacles preclude an effective state remedy against unconstitutional convictions, federal courts have no other choice but to grant relief in the collateral proceedings.’ Cf. Hunt v. Warden, Maryland Penitentiary, 335 F.2d 936, 940-941 (4th Cir. 1964).” The Supreme Court of Delaware in Erb v. Delaware, 332 A.2d 137 (1974) expresses a strong view in respect to delayed juridical actions. The Court said this in respect to delays of counsel:
“The Court docket . . . chronicles appalling and unnecessary delay in prosecution of the appeals resulting from a lack of coordination between trial counsel and the Public Defender and the failure of both of them to meet their responsibilities as counsel of record. Trial counsel did not order a transcript of testimony nor provide the Public Defender with pertinent information as to errors of law on which the appeals are based, and the Public Defender did not meet his responsibility to prosecute the appeals with diligence. The delay of some thirteen months without a transcript, without an order for transcript and without a meaningful brief is simply unconscionable.” (footnote omitted).
. See Hensley v. Municipal Court, 411 U.S. 345, 93 S.Ct. 1571, 36 L.Ed.2d 294 (1973). See also Sokol, supra, at § 6.1.
Question: What is the most frequently cited provision of the U.S. Constitution in the headnotes to this case? If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
Answer:
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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".
Gilbert WEISS, Petitioner, v. COMMISSIONER OF INTERNAL REVENUE, Respondent.
No. 15182.
United States Court of Appeals, Eighth Circuit.
April 15, 1955.
Rehearing Denied May 13, 1955.
Martin A. Rosenberg and Rodney Weiss, St. Louis, Mo. (Gilbert Weiss, St. Louis, Mo., pro se, was with them on the brief), for petitioner.
C. Guy Tadlock, Sp. Asst, to the Atty. Gen. (H. Brian Holland, Asst. Atty. Gen., and Ellis N. Slack and George F. Lynch, Sp. Assts. to the Atty. Gen., were on the brief), for respondent.
Before SANBORN, COLLET and VAN OOSTERHOUT, Circuit Judges.
SANBORN, Circuit Judge.
This is a petition to review a decision of the Tax Court redetermining a deficiency in the petitioner’s income tax for the year 1947. The deficiency (except for a small amount not in controversy) resulted from the disallowance by the Commissioner of Internal Revenue of a deduction of $15,633.71 taken by the petitioner in his tax return for that year as a loss resulting from the failure of a housing project or joint venture known as the “Norlan Project” (also referred to in the record and briefs as “Norland Project”), with which the petitioner claimed to have terminated his connection in 1947.
The disallowance of this deduction by the Commissioner was based upon his conclusion that the petitioner had not withdrawn from the project in 1947, but had continued his connection with it until December, 1948, and had sustained no loss deductible from gross income in 1947 under Section 23(e) (2) of the Internal Revenue Code, 26 U.S.C.A. § 23 (e) (2) and the applicable regulations.
It was the position of the petitioner before the Tax Court that in 1947 he sustained a deductible loss of $15,633.71 as the result of the failure of one joint venture, and that in 1948 he sustained a loss of $5,742.98 in another unsuccessful joint venture, and that the two losses and the two joint ventures were separate and distinct. The position of the Commissioner was that the losses which the petitioner regarded as separate losses from two distinct joint ventures constituted together a loss from one joint venture only and that the loss was sustained in 1948 and no part of it was deductible from gross income in 1947.
What the Tax Court was called upon to decide was whether the petitioner had sustained deductible losses in each of the years 1947 and 1948, as he claimed, rather than a single loss deductible only in 1948, as the Commissioner had determined.
The case was submitted to the Tax. Court upon a stipulation of facts and the testimony of the petitioner and of witnesses produced by him. The parties stipulated that the Tax Court might find, as facts that:
“3. Petitioner, Gilbert Weiss, <L Ben Miller and Edward T. Hanlon in 1946 entered into a joint venture-known as the Norlan Project, a housing project under section 608 of the Federal Housing Act [12 U.S. C.A. § 1743],
“4. The Norlan Project was: abandoned in December, 1948.
“5. The petitioner, Gilbert Weiss, sustained a total loss of $21,376.69 as a result of the failure of the Nor-lan Project.”
The record shows that the petitioner;, a practicing attorney, and his two associates, Miller, a realtor, and Hanlon, a consulting architect and engineer, in 1946 procured an option to purchase for $55,000 some 22 acres of land in St. Louis, Missouri, upon which they proposed, with Government assistance, to construct a multiple housing project under the Federal Housing Act; that plans and specifications were prepared.and application made to the Federal Housing-Administration for a permit for the-building of the project; that the cost could not be brought within the estimates made by the Housing Administration; that the joint venturers could not. meet its requirement that they deposit in escrow $180,000, the difference between their cost estimate and that of the Administration; that the option on the land was extended from time to time during 1946 and 1947, until October 15, 1947, and that the Investors Syndicate, with which petitioner and his associates had arranged for a F.H.A. building loan, withdrew its commitment on November 5, 1947; that petitioner told his associates that he could not go through with the project and was closing the matter as of December 31, 1947; that they suggested that he go to Washington, D. C., which he did, to no avail; that in December, 1947, the petitioner and Miller, who were to divide the expenses of the joint venture between them, balanced their accounts; that the venture — ■ which the petitioner testified consisted in January, 1948, of Miller and Hanlon— paid the rent for that month on the office it occupied; that the assets of the joint venture consisted of office furniture and equipment and the plans and specifications prepared by Hanlon; and that the petitioner’s total expenditures in 1947 on account of the joint venture were $15,-633.71.
The record also shows that in the latter part of January, 1948, Leo Laughren, a St. Louis attorney, told the petitioner that he had heard that the petitioner “had a housing project that had gone sour”; that the petitioner stated that it had so far as he was concerned because he could not afford the amount of money necessary to continue it; that Laughren referred the petitioner to Horace Deal, of the H. B. Deal Construction Company; that the petitioner saw Deal in February, 1948, and arranged with him that if Hanlon would work with Deal’s engineers and architects in revising the plans and “reducing the estimate and bring it within the F.H.A. specifications” and if the project was built or sold, the petitioner and Miller would get their money back and Hanlon would be paid an equivalent amount for his services; that the 22-acre tract of land was held available by its owners for purchase by petitioner and his associates during 1948; that on November 12, 1948, the petitioner, by letter, had requested “that the option be extended until January 15th,” 1949, on terms, which the owners accepted; that the H. B. Deal Construction Company tried, by changing the plans, to bring down the cost, but finally decided not to take over the project; that the deductions petitioner took for a loss in 1948 represented what he spent on account of the project from February, 1948, to the close of that year.
The petitioner’s contention is that it conclusively appears from the evidence that his connection with the joint venture in which he, Miller and Hanlon were associated in 1947 ended December 31, 1947, and that the arrangement that was made with Deal in 1948, in attempting to salvage what the joint venturers had spent or contributed in 1947, was an entirely different project.
The burden was upon the petitioner to prove that he sustained the loss in 1947 which he claimed was deductible from his gross income for that year. Burnet v. Houston, 283 U.S. 223, 227, 51 S.Ct. 413, 75 L.Ed. 991; Boehm v. Commissioner, 326 U.S. 287, 294, 66 S.Ct. 120, 90 L.Ed. 78; Cf. Alison v. United States, 344 U.S. 167, 73 S.Ct. 191, 97 L.Ed. 186. The ruling of the Commissioner that the petitioner’s loss from his dealings with the Norlan Project was not evidenced by any closed or completed transaction occurring in 1947 and did not become a deductible loss in that year had the support of a presumption of correctness, and the petitioner had the burden of proving it to be wrong. Welch v. Helvering, 290 U.S. 111, 115, 54 S.Ct. 8, 78 L.Ed. 212.
It seems obvious that the issue as to the time when a loss from a venture which ultimately fails has actually been sustained within the meaning of the applicable law is an issue of fact if it is at all doubtful either because of a conflict in the evidence or because different inferences reasonably may be drawn from undisputed facts. It is only when the evidence is all one way or so overwhelmingly one way as to leave no doubt as to what the fact is, that the issue becomes one of law. Gunning v. Cooley, 281 U.S. 90, 94, 50 S.Ct. 231, 74 L.Ed. 720; Tyson v. Commissioner, 8 Cir., 146 F.2d 50, 54. Cf. Lacy v. United States, 7 Cir., 207 F.2d 352, 354.
The Tax Court in the instant case was the trier of the facts, the judge of the credibility of the witnesses and the weight of evidence. It was for that court to determine what inferences were reasonably to be drawn from the evidentiary facts. Boehm v. Commissioner, supra, at pages 293-294 of 326 U.S., at page 124 of 66 S.Ct.; Helvering v. Johnson, 8 Cir., 104 F.2d 140, 144; Tyson v. Commissioner, supra, at page 54 of 146 F.2d. The Tax Court was not compelled to believe evidence which to it seemed unreasonable or improbable, or to accept at full face value the evidence of interested witnesses even if uncontradicted. Noland v. Buffalo Ins. Co., 8 Cir., 181 F.2d 735, 738.
That the Tax Court might have found that the petitioner definitely withdrew from the project in 1947 and that his efforts to salvage something from the abandoned venture in 1948 for himself and his- associates were completely disconnected from the 1947 activities, does not mean that the Court was compelled to do so.
This Court will not retry issues of fact or substitute its judgment for that of the trial court respecting such issues. Noland v. Buffalo Ins. Co., supra, at page 738 of 181 F.2d; Clarke Hybrid Corn Co., Inc. v. Stratton Grain Co., 8 Cir., 214 F.2d 7, 9; Cleo Syrup Corporation v. Coca-Cola Co., 8 Cir., 139 F.2d 416, 417-418, 150 A.L.R. 1056.
It is our opinion that, under the evidence in this ease, the issue whether the petitioner sustained a deductible loss in 1947 because of his alleged withdrawal from the unsuccessful Norlan Project, was an issue of fact for the Tax Court, Boehm v. Commissioner, supra, at pages 293-294 of 326 U.S., at page 124 of 66 S.Ct.; Alison v. United States, supra, at page 170 of 344 U.S., at page 192 of 73 S.Ct., and not an issue of law for this Court; that the issue was competently tried and determined; and that the findings of the Tax Court are not “clearly erroneous” and may not be set aside by this Court.
The decision of the Tax Court is affirmed.
. Ҥ 23. Deductions from gross income. In. computing net income there shall be allowed as deductions:
>:< sjs * * ❖ *
“(e) Losses by individ/uals. In the case of an individual, losses sustained during the taxable year and not compensated for by insurance or otherwise—
# %•. # * >1:
“(2) if incurred in any transaction entered into for profit, though not connected with the trade or business; * * *
. Treasury Regulations 111, promulgated under the Internal Revenue Code:
“Sec. 29.23 (e)-l. Losses by individu-ais. ' Losses sustained by individual citizens or residents of the United States, and not compensated for by insurance- or otherwise are fully deductible if (a) incurred in the taxpayer’s trade or business, or (b) incurred in any transaction entered into for profit, or * * *.
“In general losses for which an amount may be deducted from gross income must be evidenced by closed and completed transactions, fixed by identifiable events, bona fide and actually sustained during the taxable period for which allowed. Substance and not mere form will govern in determining deductible losses. * * * ”■
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
|
2
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Frank S. SCHMIDT, Plaintiff-Appellant, v. FARM CREDIT SERVICES, formerly d/b/a Federal Land Bank of Wichita; and Schmidt C & R Co., Inc., Defendants-Appellees.
No. 90-3199.
United States Court of Appeals, Tenth Circuit.
Oct. 13, 1992.
Kent E. Oleen of Vogel & Oleen, Manhattan, Kan., for plaintiff-appellant.
B. Keith Kocher of Shaw, Hergenreter, Quarnstrom & Kocher, Topeka, Kan., for defendants-appellees.
Before SETH and HOLLOWAY, Circuit Judges, and DUMBAULD, District Judge.
After argument and submission, Judge Holloway took senior status effective May 31, 1992.
The Honorable Edward Dumbauld, United States District Judge of the Western District of Pennsylvania, sitting by designation.
HOLLOWAY, Circuit Judge.
This appeal arises from a shareholder derivative suit instituted by the appellant Frank Schmidt against Schmidt C & R Co., Inc. (the Corporation) and Farm Credit Services (Farm Credit). Frank Schmidt claims that his nephew John Schmidt, the president of the Corporation, fraudulently gave himself authority to mortgage corporate property and receive the proceeds in the Corporation’s name from Farm Credit. Frank Schmidt seeks to have the court set aside the mortgage and its accompanying obligation. On cross motions for summary judgment, the district court granted judgment in Farm Credit’s favor. Frank Schmidt timely appealed.
I
Schmidt C & R Co. is a family farm corporation. Half of its stock is owned by John and Pamela Schmidt, husband and wife, who are also two of the three directors of the Corporation as well as being its principal officers. A meeting of the board of directors was held in February 1980 at which only John and Pamela Schmidt were present. At the meeting John Schmidt received the authority to borrow $400,000 in the Corporation’s name from the Federal Land Bank of Wichita, Farm Credit’s predecessor. There exist two conflicting sets of minutes describing the report of this action to the stockholders meeting the same day; one reports the approval, the other does not.
The following month a promissory note and mortgage in the amount of $320,000 were executed by Farm Credit and the Corporation. Alan Jaax, the agent of Farm Credit who handled the transaction, was aware that the proceeds of the loan were to be loaned in turn by the Corporation to John and Pamela Schmidt. The fact of the loan was not included in the Corporation’s annual profit and loss statement sent to shareholders, although it was noted in the annual report filed with the Kansas Secretary of State in 1980.
Plaintiff Frank Schmidt, a shareholder, commenced his derivative shareholder’s action seeking to void the mortgage in May 1988 after he learned of the loan. After a period of discovery Frank Schmidt filed a motion for summary judgment. Shortly thereafter Farm Credit filed its own summary judgment motion. In a Memorandum and Order of May 31, 1990 the district court found in favor of Farm Credit on its motion for summary judgment. Schmidt v. Farm Credit Services, 738 F.Supp. 1372 (D.Kan.1990). In the district judge’s view two factors distinguish the instant case from In re Branding Iron Motel, Inc., 798 F.2d 396 (10th Cir.1986), which was relied on by plaintiff Frank Schmidt. First, the judge found that John Schmidt, as President of Schmidt C & R Co., had express actual authority to execute the note and mortgage. Secondly, the judge said that the board of directors had expressly sanctioned and approved the actions of the Corporation’s President in negotiating the loan transaction. The district judge accordingly granted summary judgment to Farm Credit. The instant appeal followed.
II
We review de novo the district court’s summary judgment rulings. We thus apply the same legal standard used by the trial court. Applied Genetics Int’l, Inc. v. First Affiliated Securities, Inc., 912 F.2d 1238, 1241 (10th Cir.1990). Summary judgment is appropriate when the evidence indicates that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In examining the record we review the evidence in the light most favorable to the party opposing the motion for summary judgment. Deepwater Investments, Ltd., v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir.1991). Moreover, “a court of appeals should review de novo a district court’s determination of state law.” Salve Regina College v. Russell, — U.S. -, -, 111 S.Ct. 1217, 1221, 113 L.Ed.2d 190 (1991).
The relationship between a corporation and its president is that of principal and agent. Herald Co. v. Seawell, 472 F.2d 1081, 1094 (10th Cir.1972). An agent may bind its principal as to a third party when the agent acts under actual authority or when the actions of the principal lead the third party to reasonably believe that such authority exists. Bucher & Willis Consulting Engineers, Planners, and Architects v. Smith, 7 Kan.App.2d 467, 643 P.2d 1156, 1159 (1982). In this instance, then, the mortgage on the corporate property was valid if Schmidt had actual, express authority to mortgage the property or if Farm Credit was lead by the corporation to believe reasonably that authority to enter into the transaction existed.
A.
The resolution to borrow upon which Farm Credit relies as the basis of John Schmidt’s authority to mortgage the corporate property was purportedly made at a meeting of the board of directors on January 31, 1980. Resolution to Borrow, Doc. 26, Exh. 8. Under the articles of incorporation of Schmidt C & R Co., all members of the board of directors must be given notice of the time and place of the board’s meetings. Art. I § 1, Doc. 28, Exh. 3. Ordinarily, a directors’ meeting to be binding must be a regular one of which the directors have general notice, or a special one upon due notice to each. Gorrill v. Greenlees, 104 Kan. 693, 180 P. 798, 800 (1919); Schroder v. Scotten, Dillon Co., 299 A.2d 431, 435 (Del.Ch.1972); Rapoport v. Schneider, 29 N.Y.2d 396, 328 N.Y.S.2d 431, 434, 278 N.E.2d 642, 645 (1972); Charles R.P. Keating, et al., 2 Fletcher Cyclopedia of Corporations § 405 (1990).
The Articles of Incorporation of Schmidt C & R Corporation do not fix specific dates for regular meetings of the board of directors. Art. II § 2, Doc. 28, Exh. 3. Rather the meetings can be held at any time, provided that the directors are given proper notice. At the time of the mortgage the only director of the Corporation other than Schmidt and his wife was Susan Ensign. Ms. Ensign’s affidavit states that she never received notice of any special meeting concerning a loan from the Corporation, Schmidt C & R Co., to John Schmidt for his personal use, or of any special meeting concerning the transaction between the Corporation and the Federal Land Bank. Ensign Affidavit at 2, Doc. 26, Exh. D. Respecting this statement, John Schmidt testified that he does not recall whether or not notice of the special meeting that authorized Schmidt to enter into a loan for the corporation was given to Ms. Ensign. Memorandum of Farm Credit in Opposition to Plaintiff’s Motion for Summary Judgment. Doc. 30 at 4. Thus we agree with Frank Schmidt’s contention that the district court erred in holding on this record that there was actual authority to so mortgage corporate property.
The validity of the authority allegedly expressly granted, to Schmidt is further impugned by the character of the transaction itself. The Corporation’s property was mortgaged for the purpose of freeing up cash which could, in turn, be loaned to Schmidt. When Schmidt applied for the mortgage he was acting as agent of the Corporation. However, “unless otherwise agreed, authority to act as agent includes only authority to act for the benefit of the principal.” Restatement (Second) of the Law of Agency § 39. See also Siedhoff v. Campbell, 141 Kan. 255, 40 P.2d 404, 407 (1935) (citing with approval identical provision in First Restatement). An agent’s actions which are beyond the scope of his authority do not bind the principal. See Osborn v. Grego, 226 Kan. 212, 596 P.2d 1233, 1237 (1979). Evidence has been produced to show that the loan from the Corporation to Schmidt was not for the benefit of the Corporation. Thus there is some evidence that the transaction between Farm Credit and the Corporation was also not for the benefit of the Corporation. Under the Restatement’s view, then, there was a genuine question of whether the mortgage was authorized.
The general common law duty, to act only for the benefit of the principal is supplemented in Kansas by a specific statutory provision. K.S.A. 17-6304 provides that no contract or transaction between a corporation and a director or officer shall be void or voidable solely for that reason if, inter alia, the contract or transaction is fair as to the corporation as of the time it is authorized, approved or ratified by the board of directors, a committee thereof, or the shareholders. Farm Credit argues that, in this case, the provision applies only to the second transaction, the loan to Schmidt, and not the first transaction, the mortgaging of the property. There is some support for this argument in the language of the statute which specifically refers only to transactions “between a corporation and one of its directors or officers.” The mortgage was clearly not such a transaction. On the other hand, there is also authority for the proposition that such a preliminary transaction may properly be considered part of the over-all proscribed self-dealing transaction. See Minnesota Valley Country Club,. Inc. v. Gill, 356 N.W.2d 356, 360, 362 (Minn.App.1984). We need not in any event resolve this issue here because we have already found that the lack of notice to Susan Ensign meant that the mortgage transaction was not properly authorized by the board of directors and was outside the scope of authority granted to Schmidt as president.
B.
Although the uncontroverted evidence shows that John Schmidt did not have actual authority to mortgage the property, summary judgment might still be proper for Farm Credit if it showed that the Corporation by its actions created a situation in which Farm Credit reasonably assumed that Schmidt was acting within the scope of his delegated authority. Bucher & Willis, 643 P.2d at 1159. The reasonableness of this belief must be analyzed under all the circumstances. Farm Credit had knowledge that the proceeds from the mortgage would be loaned to John Schmidt. Jaax Depo. at 72, Doc. 30, Exh. 1. It knew that Schmidt would use these funds to satisfy personal debts. Id. It also knew that although John and Pamela Schmidt owned only half of the Corporation, the loan and mortgage were approved at a board of directors meeting at which only the two of them were present. Resolution to Borrow, Doc. 26, Exh. 8.
The Tenth Circuit faced a similar question of Kansas law in In re Branding Iron Motel, 798 F.2d 396 (10th Cir.1986). There this court upheld a bankruptcy court ruling that a note and mortgage were void and unenforceable. The lender knew that the proceeds would benefit not the corporation involved, but the corporation’s president. We noted that: “It was unreasonable for [the lender] to assume that Branding Iron’s president had the power to use corporate property for his own personal benefit.” 798 F.2d at 401. The facts of the transaction were such that the lender should have inquired further into the propriety of the transaction and the existence of authority. We reversed the district court’s ruling in an appeal from the bankruptcy court; we upheld the ruling of the bankruptcy court that the note and mortgage , were void and unenforceable. Id. at 398, 402.
Farm Credit protests that in this case it was shown a resolution of the board of directors authorizing the loan. A purportedly valid resolution to borrow can be persuasive evidence of the reasonableness of a lender’s reliance, but it is not determinative. See Marsh Investment Corp. v. Langford, 490 F.Supp. 1320, 1325 (E.D.La. 1980). Where the lender knew or had reason to know that the proceeds would inure to the personal benefit of a corporate officer, it had a duty to inquire further. The reasonableness of Farm Credit’s reliance is an ultimate question of fact and Frank Schmidt has made a sufficient showing to raise a genuine factual issue as to whether Farm Credit acted reasonably in accepting the resolution at face value. See Gumpert v. Bon Ami Co., 251 F.2d 735, 746 (2d Cir.1958). Because this question could, given the facts developed, be resolved either way, we hold that both motions for summary judgment should have been denied. The issue must be decided by a trier of fact.
C.
Finally, Farm Credit argues that Frank Schmidt’s claims should be barred “based upon the equitable doctrines of estoppel, laches, and the Statute of Limitations under K.S.A. 60-513.” Appellee’s Brief at 18. The district court did not address any of these defenses in its ruling, however. Because each defense involves unresolved issues of material fact, we decline to hold that summary judgment for Farm Credit should have been entered on the basis of these affirmative defenses.
“The doctrine of estoppel is for the protection of innocent persons and as a rule only the innocent may invoke it.” Newton v. Homblower, 224 Kan. 506, 582 P.2d 1136, 1144 (1978). Frank Schmidt has argued that Farm Credit is far from innocent. Rather he charges that it participated in a “scheme” in which it knowingly lent money to corporate officers for their own use. Appellee’s Brief at 26. Just as we have held that the evidence in support of these allegations raises a genuine issue of ultimate fact as to whether Farm Credit acted reasonably so too does it raise a genuine issue as to whether Farm Credit acted in good faith. Summary judgment is thus inappropriate on this issue.
The laches and statute of limitations defenses raise similar factual questions. The doctrine of laches is based not on mere delay, but delay that works to the disadvantage of another party. Clark v. Chipman, 212 Kan. 259, 510 P.2d 1257, 1266 (1973). Whether or not the delay is unreasonable depends on the circumstances of the particular case. Id. It is accordingly a question for the trier of fact. The tolling of the statute of limitations also involves the question, of reasonableness. As Farm Credit itself points out, the time from which the statute of limitations runs depends on when reasonable inquiry would have uncovered .the injury. Appellee’s Brief at 18, citing Augusta Bank and Trust v. Broomfield, 231 Kan. 52, 643 P.2d 100 (1982). When there is a genuine dispute as to when an injury was reasonably ascertainable summary judgment is precluded. Olson v. State Highway Commission, 235 Kan. 20, 679 P.2d 167, 174 (1984). We therefore find that there remain genuine issues of ultimate fact which preclude the successful assertion of estoppel, laches, and the statute of limitations.
The order of the district court granting summary judgment to Farm Credit Services is therefore REVERSED. The order denying Frank Schmidt’s motion for summary judgment is AFFIRMED. The cause is REMANDED for further proceedings consistent with this opinion.
. In this single appeal, Frank Schmidt appealed both the district court’s grant of summary judgment to Farm Credit and its denial of summary judgment to him.
. In the pretrial order the district court noted that Schmidt C & R Co. was in default. Accordingly in its published opinion it directed that a default judgment be entered against the corporation and in favor of Frank Schmidt. Appeal was not taken from this judgment.
. Frank Schmidt also appealed the denial of his motion for summary judgment. Ordinarily an appeal cannot be had from the denial of a motion for summary judgment because such denial is not a final order as required by 28 U.S.C. § 1291. Matthew v. IMC Mint Corp., 542 F.2d 544, 547 (10th Cir.1976). Furthermore, once a case has gone to trial, an appeal cannot be had from the earlier denial of summary judgment. Whalen v. Unit Rig, Inc., 974 F.2d 1248, 1250 (10th Cir.1992). Instead, redress can only be achieved through subsequent motions for judgment as a matter of law and appellate review of those motions if denied. Id. at 1251.
However, where a cross-motion for summary judgment has been granted and is appealed and reversed, and it is clear that there is no dispute as to the facts, and the facts justify judgment for the other party, summary judgment may be entered for that party. It must be clear, however, what the facts are and that the adversary had a fair opportunity to dispute them. See 6 J. Moore et al., Moore’s Federal Practice ¶ 56.13 at 56-178 (1988 & Supp.1990); 10 C. Wright, A. Miller, and M. Kane, Federal Practice and Procedure § 2716 at 660-661 (1983); see also Abend v. MCA, Inc., 863 F.2d 1465, 1482 n. 20 (9th Cir. 1988); Buell Cabinet Co., Inc. v. Sudduth, 608 F.2d 431, 432 (10th Cir.1979); Stein v. Oshinsky, 348 F.2d 999, 1002 (2d Cir.1965) (directing entry of dismissal in favor of appellant).
. The date of this purported meeting is the subject of some dispute. The resolution to borrow indicates that it took place on January 31, but the report of the board of directors' meeting to the stockholders has it taking place on February 27. Doc. 28, Exh. 1.
. As described in note 1, supra, the default judgment against Schmidt C & R Co. was not appealed from. Accordingly this disposition in no way disturbs the default judgment.
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_numresp
|
3
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your specific task is to determine the total number of respondents in the case. If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Ernest O. DEFFES, Appellant, v. FEDERAL BARGE LINES, INC. and Gulf-Canal Lines, Inc., et al., Appellees.
No. 21868.
United States Court of Appeals Fifth Circuit.
May 26, 1966.
Rehearing Denied July 6, 1966.
Jones, Circuit Judge, dissented.
Edgar N. Quillin, Arabi, La., Sherman F. Raphael, New Orleans, La., for appellant.
Edmond C. Salassi, Thomas J. Wyllie, New Orleans, La., for appellees.
Before JONES and THORNBERRY, Circuit Judges, and SLOAN, District Judge.
THORNBERRY, Circuit Judge:
The plaintiff, a stevedore employed by Continental Grain Company (Continental), was injured while unloading grain from Barge FBL 625 which is owned by Federal Barge Lines, Inc. (Federal) and chartered by Gulf-Canal Lines, Inc. (Gulf). Plaintiff sued Federal and Gulf for damages, and the defendants filed a third-party complaint against Continental as the employer of the plaintiff. The district court held for the defendants. 229 F.Supp. 719.
The injury resulted from an alleged defect in a marine leg, a mechanical elevator device, owned by Continental. The marine leg is basically a conveyor belt to which buckets are attached. It is permanently attached to the dock at all times and is designed for use in unloading grain from barges. The power for raising, lowering and operating the leg is supplied by shore-based facilities, and all the equipment used is owned by Continental.
The unloading operation is performed in four stages: (1) The marine leg is introduced through the open hatch of the barge into the grain, and grain is, in effect, “dug” out by the buckets on the conveyor belt. During this stage, there is no contact with the barge. (2) Large scoops, generally called “air buckets,” operated by means of pulleys and cables, are utilized to bring the grain from the ends of the barge to the marine leg. The pulleys are attached to the barge at various places by means of hooks and are connected with the marine leg by cables. All this equipment is stored in the marine leg when not in use. (3) When the grain level has been lowered sufficiently, the air buckets are detached and stored and small bulldozers serving essentially the same purpose as the air buckets are brought into use. (4) The last phase of the process is the “sweeping up,” during which stevedores sweep up the grain and shovel it into the marine leg. At this stage, the marine leg rests on the bottom of the barge. The injury-occurred during this last phase of the unloading.
Plaintiff claimed that a piece of metal from a worn bucket broke off and hit him in the eye. He received compensation from his employer, Continental, under the provisions of the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C. § 901 et seq. Plaintiff sought recovery against Federal and Gulf on the theory that the allegedly defective marine leg and the failure of Continental to supply goggles in compliance with the Safety and Health Regulations for Long-shoring, 29 C.F.R. § 9.1, rendered the barge unseaworthy.
The district court noted that
“[a]n owner of a vessel may be liable for an unseaworthy condition which has been caused by an independent contractor and [that] the doctrine has been extended to include equipment brought aboard and used and controlled exclusively by stevedores in loading and unloading a vessel. Alaska Steamship Company v. Petterson, 347 U.S. 396, 74 S.Ct. 601, 98 L.Ed. 798 (1954); Rogers v. United States Lines, 347 U.S. 984, 74 S.Ct. 849, 98 L.Ed. 1120 (1954).”
Deffes v. Federal Barge Lines, Inc., E.D.La.1964, 229 F.Supp. 719, 721.
The court, citing McKnight v. N. M. Paterson & Sons, 6th Cir. 1960, 286 F.2d 250, cert. denied, 368 U.S. 913, 82 S.Ct. 189, 7 L.Ed.2d 130, and Sherbin v. S. G. Embiricos, Ltd., E.D.La.1962, 200 F.Supp. 874, found that the Petterson and Rogers eases involved equipment which was “traditionally a part of a ship’s appurtenant appliances and equipment.” Ibid. Since the marine leg was not “equipment traditionally found aboard and used in unloading operations,” the court held that a defect in the marine leg would not cause the barge to be unseaworthy.
The court also concluded that a “[violation of a.safety regulation applicable to a stevedore does not render a vessel unseaworthy unless the violation creates a dangerous condition aboard the vessel, which would constitute a defect in the vessel’s hull, gear, stowage and appurtenant appliances and equipment,” and that the barge owner had discharged his duty of reasonable care by hiring a reputable firm to handle the loading and unloading of the barge. Id., 721-722.
The basic question presented on this appeal is whether a defect in a shore-based marine leg can cause a barge to be held unseaworthy. Similar questions have been considered by several courts and have resulted in a sharp conflict between the circuits. The opinion of the district court relies on the Sixth Circuit decision in the McKnight case and is also supported by the Second Circuit's opinion in Forkin v. Furness Withy & Co., 2d Cir. 1963, 323 F.2d 638. The opposite view has been espoused by the Ninth Circuit in Huff v. Matson Navigation Co., 9th Cir. 1964, 338 F.2d 205, cert. denied, 380 U.S. 943, 85 S.Ct. 1026, 13 L.Ed.2d 963 and by the Third Circuit in Spann v. Lauritzen, 3rd Cir. 1965, 344 F.2d 204, cert. denied, 382 U.S. 1000, 15 L.Ed.2d 489. After carefully considering these cases and the Supreme Court cases which have developed the doctrine of unseaworthiness, we conclude that the decisions of the Ninth and Third Circuits correctly state the law and that, therefore, the holding of the district court must be reversed.
The doctrine of unseaworthiness was conceived by the Supreme Court in The Osceola, 1903, 189 U.S. 158, 23 S.Ct. 483, 47 L.Ed. 760, as a device for imposing liability on ship owners for injuries to seamen. Since that time there has been a steady expansion of the scope and coverage of the doctrine. Thus, in Seas Shipping Co. v. Sieracki, 1946, 328 U.S. 85, 89, 66 S.Ct. 872, 875, 90 L.Ed. 1099, the Supreme Court considered the question “whether the shipowner’s obligation of seaworthiness extends to longshoremen injured while doing the ship’s work aboard but employed by an independent stevedoring contractor whom the owner has hired to load or unload the ship.” The Court discussed at length the rationale of the doctrine and noted that
“the hazards of marine service which unseaworthiness places on the men who perform it. * * *, together with their helplessness to ward off such perils and the harshness of forcing them to shoulder alone the resulting personal disability and loss, have been thought to justify and to require putting their burden, in so far as it is measurable in money, upon the owner regardless of his fault. * * * [T] he owner * * * is in position, as the worker is not, to distribute the loss in the shipping community which receives the service and should bear its cost.
******
“[T]his policy is not confined to seamen who perform the ship’s service under immediate hire to the owner, but extends to those who render it with his consent or by his arrangement. All the considerations which gave birth to the liability and have shaped its absolute character dictate that the owner should not be free to nullify it by parcelling out his operations to intermediary employers whose sole business is to take over portions of the ship’s work or by other devices which would strip the men performing its service of their historic protection. The risks themselves arise from and are incident in fact to the service. * * * [The owner’s] ability to distribute the loss over the industry is not lessened by the fact that the men who do the work are employed and furnished by another. Historically the work of loading and unloading is the work of the ship’s service, performed until recent times by members of the crew. * * That the owner seeks to have it done with the advantages of more modern divisions of labor does not minimize the worker’s hazard and should not nullify his protection.
******
“It seems, therefore, that when a man is performing a function essential to maritime service on board a ship the fortuitous circumstances of his employment by the shipowner or a stevedoring contractor should not determine the measure of his rights.”
Id. at 93-97, 66 S.Ct. at 877-879. (Emphasis added.)
The Court also found that the stevedore’s remedy for unseaworthiness against the shipowner was in addition to his statutory remedy against his own employer. Id. at 100-102, 66 S.Ct. at 872.
The coverage of stevedores under the doctrine of unseaworthiness was further developed in Alaska Steamship Co. v. Petterson and Rogers v. United States Lines, supra. The stevedore’s injury in Petterson was caused by a defective block which the Court assumed had been brought on, board the ship by the stevedoring company. The Ninth Circuit found the vessel to be unseaworthy, Petterson v. Alaska Steamship Co., Inc., 9th Cir. 1953, 205 F.2d 478, and the Supreme Court affirmed per curiam, citing Seas Shipping Co. v. Sieracki, supra, and Pope & Talbot v. Hawn, 1953, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143. In Pope, the Supreme Court has reaffirmed Sieracki and stated that “Sieracki’s legal protection was not based on the name ‘stevedore’ but on the type of work he did and its relationship to the ship and to the historic doctrine of seaworthiness.” Id. at 413, 74 S.Ct. at 207. (Emphasis added.) The injured man in Pope was a carpenter who was repairing the loading apparatus and was hurt when he fell through an uncovered hatch hole.
The Third Circuit in Rogers was concerned with an allegedly defective land fall runner, a device used in unloading cargo. In its discussion, the Court stated:
“Admittedly then, the alleged unseaworthy condition was not created by the ship. The runner was owned, produced and fastened to the winch by Lavino [the stevedoring company], which was in charge of and performing the unloading operation. And there is no indication that the ship sanctioned its use or even knew of its existence. The statement that the vessel adopted, the ru/nner as an appurtenance is simply not justified by the record. * * * Since the wire alone or the manner in which it was handled, or both, caused plaintiff’s hurts and since under the facts the presence of that wire cannot be construed as appellee’s responsibility this judgment [for the defendant] should not, for the reason urged, be disturbed.”
Rogers v. United States Lines, 3rd Cir. 1953, 205 F.2d 57, 57-58. (Emphasis added.) The Supreme Court reversed per curiam. 347 U.S. 984, 74 S.Ct. 849, 98 L.Ed. 1120. Three justices dissented in both the Petterson and Rogers cases on the theory that the doctrine of seaworthiness as stated in Sieracki should not be extended to cover “the unseaworthiness of equipment owned and brought on board by a» stevedoring contractor * * * ” since the stevedoring company would be better able to eliminate the hazard. 347 U.S. at 401-402, 74 S.Ct. at 604.
The seaworthiness doctrine was further extended by the Supreme Court in Gutierrez v. Waterman Steamship Corp., 1963, 373 U.S. 206, 83 S.Ct. 1185, 10 L.Ed.2d 297. In that case, a longshoreman had slipped on beans spilled on the dock from defective bags during the unloading of cargo. The Court reiterated Sieracki’s position that the “Seaworthiness is not limited, of course, to fitness for travel on the high seas; it includes fitness for loading and unloading,” id. at 213, 83 S.Ct. at 1190, and found that the doctrine of seaworthiness applies to “longshoremen unloading the ship whether they are standing aboard ship or on the pier.” Id. at 215, 83 S.Ct. at 1191.
Since the district court’s opinion relies primarily on the decision in the McKnight case, we must first look to that case. McKnight, a longshoreman, was injured by unloading gear which was being lowered into the ship’s hold by a shore-based crane. While the Sixth Circuit and the district court conceded that the plaintiff “might have been doing the traditional work of a seaman,” (i. e., unloading cargo), both courts concluded that “he was not incurring the hazards of a seaman, in that none of the traditional unloading gear of the ship, namely winches, masts, or booms, was being used * * * ” 286 F.2d at 251, 181 F.Supp. at 440. The courts distinguished the Supreme Court decisions in Sieracki, Rogers and Petterson on this basis but cited no case to support this distinction.
Our reading of the Supreme Court cases leads us to a contrary conclusion. Loading and unloading is clearly held to be “work of the ship’s service.” Sieracki, supra; Crumady v. The Joachin Hendrik Fisser, 1959, 358 U.S. 423, 427, 79 S.Ct. 445, 3 L.Ed.2d 413; Italia Societa v. Oregon Stevedoring Co., 1964, 376 U.S. 315, 323, 84 S.Ct. 748, 11 L.Ed.2d 732. Pope & Talbot v. Hawn, supra, instructs us to look to the type of work performed to determine the extent of liability under the doctrine of seaworthiness. Here we have a claimant who was admittedly injured while unloading a cargo of grain. Therefore, there can be no doubt that he is within the scope of the doctrine.
The district court below and the McKnight case would exclude the plaintiff here from recovery because, although he was doing seamen’s work, he was not incurring a seaman’s hazard since he was not using gear traditionally found aboard ship. The Supreme Court in Sieracki, however, attempts to negate this type of limitation on the concept of seaworthiness. As stated there, the shipowner “is at liberty to conduct his business by securing the advantages of specialization in labor and skill brought about by modem divisions of labor. He is not at liberty by doing this to discard)/ his traditional responsibilities.” 328 U.S. at 100, 66 S.Ct. at 880. McKnight and the district court would permit the shipowner to escape liability merely by substituting a more modern method for performing the traditional work of a seaman. We can find no support in the Supreme Court cases for adopting such a position. Nor can we find a rational basis for drawing this distinction. If one is performing seamen’s work, by definition he must be subjecting himself to a seaman’s hazard, no matter what type of equipment he is using to do the work. “The risks themselves arise from and are incident in fact to the service * * * ” Sieracki, id. at 95, 66 S.Ct. at 877. If a seaman were injured in the engine room of a nuclear-powered vessel by some defect in the reactor, he could not recover under the rationale of McKnight and the district court, even though he was performing traditional seamen’s work, because the shipowner had installed apparatus which had not traditionally been found on board ships. Such a result would be completely out of harmony with the Supreme Court’s conception of the doctrine of seaworthiness.
The district court in McKnight found an additional basis for denying relief not used by the district court in the instant case. It concluded that the shore-based crane was not part of the hull, gear or stowage of the vessel, and, therefore, a defect in the crane or a fault in its operation could not make the ship unseaworthy. Again, the court cited no authority to support its conclusion. This reasoning also flies in the face of Supreme Court opinions. The Third Circuit attempted to draw the same distinction in the Rogers case. 205 F.2d at 57. The Supreme Court reversed per curiam. In the Petterson case, the Ninth Circuit assumed that the defective block belonged to the stevedoring company and that it had been brought on board by the stevedores. 205 F.2d at 479. The Supreme Court affirmed per curiam. The case at hand cannot be distinguished from the Rogers and Petterson cases on a rational basis. All three cases involved stevedore company equipment brought on 'board to assist in loading or unloading cargo. The mere fact that the marine leg is larger than a block (Petterson) or a land fall runner (Rogers) should not cause a different application of the law.
The courts in McKnight and Forkin attempted to draw further distinctions. They suggested that liability should not be imposed unless the injuring device is attached to or touching the ship. McKnight, 181 F.Supp. at 439 and n. 9; Forkin, 323 F.2d at 641. This limitation finds no support in the Supreme Court cases. As stated by the Ninth Circuit in Huff, this approach is “manifestly wrong and contrary to the controlling decisions * * 338 F.2d at 215. Even though it is admitted here that the marine leg at one stage in the process is attached to the barge and was at the time of the injury resting on the bottom of the barge, we join the Ninth Circuit in rejecting this purported exception to the doctrine of seaworthiness.
The opinions in McKnight and Forkin confuse the issue by introducing concepts of negligence into their consideration of the seaworthiness* question. They infer that the shipowner’s power of inspection, 323 F.2d at 641, or his lack of control, 181 F.Supp. at 439, have relevance to the problem. This position, however, was clearly rejected by the Supreme Court when it stated in Sieracki that “liability is neither limited by conceptions of negligence nor contractual in character,” 328 U.S. at 94, 66 S.Ct. at 877, and when it concluded in Mitchell v. Trawler Racer, Inc., 1960, 362 U.S. 539, 80 S.Ct. 926, 4 L.Ed.2d 941, that “we can find no room for argument as to what the law is. What has evolved is a complete divorcement of unseaworthiness liability from concepts of negligence.”
Several months after judgment was rendered below, the opinion of the Ninth Circuit in Huff v. Matson Navigation Co., 9th Cir., 1964, 338 F.2d 205, was handed down. Huff was also injured by the operation of a marine leg. The Ninth Circuit made a very thorough analysis of the Supreme Court cases and the decisions of the Sixth Circuit in McKnight and the Second Circuit in Forkin. It found the distinction drawn in McKnight that the longshoreman was not incurring a seaman’s hazard because the gear was not that traditionally used in unloading to be invalid. The Court concluded that the shipowner’s absolute liability
“for the results of defects in unloading equipment brought on board ship by the stevedoring company should not be qualified or modified if the unloading equipment thus used happens to be newly designed and devised and involves none of the traditional unloading gear of the ship. Use of more modern equipment can no more exculpate the shipowner from his obligations than could use of ‘more modern divisions of labor.’ [Sieracki] It would seem passing strange of the shipowner, whose obligation of seaworthiness, as stated in Sieracki, ‘is peculiarly and exclusively the obligation of the owner * * *,’ could in effect delegate and avoid his obligation by employing a stevedoring company which used newly invented unloading devices.”
The Third Circuit in Spann v. Lauritzen, 3rd Cir. 1965, 344 F.2d 204, followed Huff and extended its holding considerably. The defective equipment in that ease was a hopper located on the pier. A shore-based crane would scoop buckets of nitrate from the hold of a ship and empty them into the hopper. Trucks would drive under the hopper and a lever would release the contents of the hopper into the truck bed. The plaintiff was injured when a defective release mechanism caused the lever to descend prematurely and strike him. The Court agreed with the conclusion of the “Ninth Circuit in the Huff case that McKnight and For-kin are out of harmony with the principles announced by the Supreme Court” and allowed the plaintiff to recover. Id. at 209.
The analysis of Huff and Spann and the failure of the lower court and the courts in McKnight and Forkin to demonstrate a valid distinction as a basis for a limitation on the broad doctrine of seaworthiness as enunciated by the Supreme' Court convinces us that a defective marine leg used in unloading gram makes a barge unseaworthy. Because of this conclusion, we find it unnecessary to consider the appellant’s other contentions.
The judgment of the district court is reversed and the case is remanded for proceedings not inconsistent with this opinion.
Federal and Gulf, appellees, and Continental, third party defendant-appellee, have stipulated that in the event attorneys fees for the appeal of this case are awarded in favor of Federal and Gulf and against Continental, the amount should be set at $900. Since this case is being reversed and remanded, the District Court will have before it such stipulation for whatever action it deems appropriate.
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